! I WW't ■■'■■ ' mu m Mj' ! 'I I 'I I ! I rili-JH . >. i Ml H-:~iai.Ta(diiif!pt'f!MiiirxS Law Library Cornell Law School THE GIFT OF Qijarles ...K., Bu.r,d.ls,k.,.i.s.ta.te.. I.tM.o.a.,...I.ew..Y.or.k Date April .30.,. 1941 KFT 40i!5.'m12""'™""* "*""^ 3 1924 024 706 990 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024706990 STATE CONSTITUTION-MAKING With Especial Reference to Tennessee. A review of the more important provisions of tlie State Constitu- tions 56 52. Estimate of the Convention's Work 57 Chapter IV. The Convention of 1870 57 53. Progi-ess of the State, 1834-1870 57 54. Antecedents of Convention of 1870 ^8 55. General Property Tax 59 56. Reflection of Economic Conditions 59 57. General Property Tax 60 58. Overthrow of Reconstruction Measures 60 59. Additional Cheeks and Balances 61 60. Poll Tax Qualification for Voters 61 61. Miscellaneous Provisions 62 62. Estimate of Convention's Work 63 63. Development of the State since 1870 64 64., Attempts to Revise the Constitution 65 PART II. Ctjbeent Thought and Action upon Constitutional Problems. Chapter V. What Constitutions Contain 69 65. Nature and Scope of Chapter 5 69 66. Development and Grouping of Constitutions 70 67. Lessening Distinctions Between Constitutions and (Statutes. 71 68. Essential Elements of a Constitution 73 69. The Typical Constitution 73 70. Schemes of Subdivision 74 71. The Declarations of Rights 74 72. Discussion of General Contents 78 73. Miscellaneous Provisions 80 74. The Constitution of Ohio. 80 75. Contrast of the Ohio and Recently Proposed New Xork Constitutions 91 76. Work of the New York Convention of 1915 92 Chapter VI. The Electorate 90 77. The Electorate an Organ of Government 99 78. Qualifications for Voting. 99 Vi CONTENTS. PAGE 79. The Sex Qualification ' 100 80. Woman Suffrage in the Constitutions 100 81. Arguments For and Against Woman Suffrage 102 82. Woman Suffrage in Practice 110 83. The Educational Qualification Ill 84. The Property Qualification 113 85. Payment of Poll Tax 114 86. Alternative Qualifications 114 87. The "Grandfather Clause" 115 Chapter VII. Elections 118 88. Early Simplicity and Growing Complexity of Elections 118 89. Methods of Nomination 119 90. Direct Primaries i 120 91. Conduct of Campaigns 122 92. Registration 123 98. Election Regulations , 124 94. Voting toy Ballot 125 95. Ascertaining the Election Results 127 96. Securing the Vote for Employes and Absentees 128 97. Proportional Representation and Preferential Voting 128 98. Object of Election Laws 133 Chapter VIII. Organization of the State Government 135 99. The First State Constitutions 135 100. Turgot's Crlticisim 135 101. The Doctrine of the Separation of Powers. 136 102. Political Thought and Practice in the Latter Eighteenth Century 137 103. Governmental Activity Not Desired' 138 104. State Legislatures Entrusted! with Most of Powers of Gov- ernment 138 105. Development of Doctrine of Separation of Powers 138 106. Separation of Powers in Present Constitutions , 140 107. Imperfect Realization of Separation of Powers in Practice. 14() 108. The Political Party a Means of Harmonizing the Separate Departments 141 109. Changed' Political and Economic Conditions 143 110. Cabinet Government Contrasted with Government of Sepa- rated' Powers .■ 144 111. Suggestions for Reorganization of State Governments .... 146 Chapter IX. The Short Ballot ; 151 112. Nature and! Purpose of the Short Ballot Idea 151 113. The Short Ballot in Early History 152 114. Elective Officers Required in Present Constitutions 153 115. Reason for Advocacy of the Long Ballot 154 116. Arguments in Favor of the rShort Ballot 156 117. Larger Aspect of the Short Ballot Movement 159 Chapter X. The Making of Statute Law by the Representatives of the People 161 118. Huge Mass of Legislation 161 119. Legislature Bicameral 162 120. Term, Apportionment and Qualifications of Legislators 163 121. Privileges, Remuneration and Conduct of Legislators 166 CONTENTS. ' vii PAGE 122. Legislative Sessions 167 123. Legislative Organization 168 124. Committees 169 125. Procedlire of Law-Making 171 126. Passage of Bills 174 127. Engrossment andi Signing of Acts 175 128. The Governor's Veto Power 175 129. Local, Special and Private Legislation 177 130. Elections by the Legislature 179 131. Publicity and Record of Legislative Sessions 179 132. Adjournment 180 133. Suggestions for Reform 180 134. Constitutional Restrictions Discussed 181 135. Expert Drafting 184 136. Cooperation of the Executive 185 Chapter XI. The Making of Statute Law by the Electorate Directly. 187 137. Nature and Development of Initiative and Referendum. . 187 138. Illinois "Public Opinion iSystem" 188 139. Direct Legislation in The States 188 140. Original South Dakota Provisions 189 141. Oregon Provl^ons 190 142. Maryland Referendum 191 143. The Petition 192 144. Filing the Petition 193 145. Publication- Publicity Pamphlets 193 146. Required Vote, Canvass, etc! 195 147. Peculiarities of Legislation Enacted by the Voters 195 148. Direct and Indirect Initiative 196 149. Emergency Acts i. . . . 197 150. Arguments For and Against Direct Legislation 197 Chapter XII. The Administration of the Law 200 151. Changing Conditions and New Problems of Administration. 200 152. Need for Qualified Officials and Adequate Organization. . . . 201 153. Civil Service 202 154. iSltuatlon in Illinois and Proposed Reorganization 202 155. Administrative Boards 204 156. The Governor and Executive Department 205 167. Election of Governor 206 158. Qualifications of Governor 207 159. Term of Office, Salary, etc 208 160. Administrative Powers and Duties 209 .161. Appointments by the Governor 209 162. Division and Unity of Administration 210 163. General Methods of Removal 211 164. Removals by the Governor 211 165. Miscellaneous Functions of Governor 212 166. Liability to Impeachment 213 167. Gubernatorial Succession 213 168. The Secretary of State 214 169. The Auditor or Comptroller 215 170. The Treasurer 215 171. The Attorney General 215 172. Study of Scientific Administration ■ 216 173. Efficiency in Democracy 218 Viii CONTENTS. P4GE 174. Administration and Distribution of Constitutional Authority 218 175. The Recall 219 176. Conclusion 280 Chapter XIII. The Interpretation of the Law 222 177. Nature and Function of Courts 222 178. The Supreme Court •• 223 179. Qualifications of Supreme Judges 224 180. Terms of Office 225 181. Compensation 225 182. Removal 226 183. The Chief Justice 226 184. Time and Place of Holding Court 226 185. Jurisdiction 227 186. Decisions 228 187. Advisory Opinions 228 188. Inferior Courts 229 189. Justices of the Peace 230 190. Procedural Regulations 231 191. Pleading and Practice 231 192. Abolition of Distinction Between Law and Equity 232 193. Judicial Inefficiency • 233 194. The Doctrine of Judicial Review 233 195. Recall of Judicial Decisions 237 196. Sociological Jurisprudence 237 Chapter XIV. The State Budget 240 197. Theory of the Budget 240 198. Proposed New York Budget Clause 242 199. Object of the Budget— Responsible Financial Control 243 200. State Constitutional Regulation of Revenue and Expendi- ture 243 201. Budgetary Reports and Estimates 244 202. Administration Bills 244 203. Regulation of Appropriations 245 204. Extraordinary Procedure for Enactment of Appropriation Bills 248 205. Veto of Items , 248 206. Continuance of Appropriations 249 207. Revenue Bills 249 208. Accounting for Public Money 250 209. Handling iPublic Money '. 250 210. Budget-Making in the States Almost Exclusively a Legis- lative Function 250 211. Faults of the System 251 212. Some Efforts at Reform ■. 252 213. The English Budget ; 258 214. American Budgetary Practice and the ^Separation of Powers 264 215. Financial Necessity Forces Adoption of the Budget 254 Chapter XV. Taxation 256 216. Constitutional Restrictions 256 217. Model Tax Clause 256 218. General Property Tax ' 257 219. Classification of Property 259 220. Mines and Forests 260 CONTENTS. ix PAGE 221. License Tax 261 222. Poll Tax 261 223. Income Tax 261 224. Inheritance Tax 262 225. Single Tax , 263 226. Exemptions 263 227. Taxation for Particular Purposes 264 228. Home Rule in Taxation ......... ^ 265 229. Tax Rates 265 230. Assessment 266 231. Conclusion 268 Chapter XVI. Public Credit , 270 232. Explanation of the Use of Public Credit 270 233. Reaction Against State Indebtedness 271 234. Debt Referenda 272 235. State Aid Forbidden 272 236. Authorization and Limitation of Indebtedness 273 237. Provisions for Payment 273 238. Serial Bonds 274 239. Local Indebtedness '. 275 240. General Considerations 276 Chapter XVII. Conservation and Social Welfare 277 241. Introductory 277 242. Industrial Conditions, the Police Power and "Due Process" 279 243. Workmen's Compensation 280 244. Compensation Statutes 281 245. Compulsory and Optional Laws 282 246. Constitutional Authorization 282 247. Model aaUse 283 248. Maximum Hours of Employment and a Minimum Wage. . . . 284 249. Constitutional Eight Hour Day 284 250. - Health, Leisure and a Living Wage 285 251. Minimum Wage Laws and Constitutional Clauses 285 252. The Labor of Women and Children 287 258. Statutes and Constitutional Clauses 287 254. Labor Legislation, Admipistration and Constitutionality. . 288 255. The Efficient Use of Natural Resources 289 256. Forests 290 257. Mines , 291 258. Water Power 291 259. Natural Resources the Heritage of All 292 260. Awakening Social Consciousness 292 Chapter XVIII. Home Rule for Cities 295 261. The Problem of Home Rule 295 262. Local Self-Government 295 263. Development of Legislative Control ... 297 264. Evils of Special Legislation i 297 265. Incorporation by General Law ; Classification 298 266. Constitutional Classification 299 267. Local Veto 299 268. Power of Cities to Fram« Their Own Charters 301 269. Extent of Cliarter-Making Power 308 270. Necessity for State Control 307 X CONTENTS. PAGE . 271. Administrative Supervision |^8 272. Home Rule in Europe ^° 273. Home Rule and the Legal Powers of a City 309 274. Suggestions for Constitutional Provisions 310 275. New York Convention Proposals , 310 Chapter XIX. Types of City Govermnenl; 313 276. The City Charter 313 277. The Constitutions and City Government 313 278. The Mayor and Council 314 279'. Early 'Commission Governments 316 280. Galveston and Des Moines 316 281. Wide -Adoption of Commission Government 317 282. Theory of Commission Government 317 283. The City Manager 318 284. European City Government 321 Chapter XX. City Planning 322 285. Municipal Awakening 322 286. Nature of City Planning 322 287.' Eminent Domain 323 288. Police Power 324 289. City planning and the Control of Municipal Property 325 290. City Planning and the Police Power 325 291. Zones 326 292. BilLboards i 326 293. City Planning and the Limitations Upon Eminent I>omain. . 328 294. Excess Condemnation 328 295. Constitutional Clauses ." . ". 329 296. Discussion of Excess Condemnation 331 Chapter XXI. Problems of County Government 334 297. Diminishing Importance of the County 334 298. Differences in Counties ' 335 299. Governing Board .336 300. County Finances . 337 301. Fee System 337 302. Reform Proposals 338 308. Home Ruile ,. . . 338 304. Commission Government 340 305. Matters of State Concern 341 306. Consolidation of City and County 341 Chapter XXII. Revising the Constitution 345 307. Need for Revision ; . 345 308. Early Constitutions ' 345 309. Proposal of Amendments by the Legislature 346 310. Amendment by Popular Initiative 350 311. The Constitutional Convention 351 CONTENTS. xi PART III. Tennessee Peoblems. PAGE Chapter XXIII. Public Opinion and Constitutional Amendments. . . 359 312. Nature of Public Opinion 359 313. Taxation 360 314. Finance 361 315. County Government 362 316. Fee System 363 317. Administration of Justice 363 318. Legislation and Administration 364 319. Increase of Governor's Power 366 320. New State Functions 366 321. Miscellaneous Recommendations 366 Chapter XXIV. The Fundamental Problem 368 320. Purpose of the Chapter . . . : 368 323. An Efficient Government 369 324. An Efficient People 373 APPENDIX ■. 377 1. The Constitutions of Tennessee and Amendments and the North Carolina Constitution of 1776 378 2. Ordinance of Convention of 1870 461 3. Acts of Fifty-ninth General Assemibly Authorizing an Elec- tion to Determine the Question of Calling a Constitu- tional Convention and Psjoviding for the Election of Delegates to the Convention if Called 462 4. Pending Equal Suffrage Amendment 465 INDEX TO TEXT 467 Explanations and Acknowledgments. The effort of this book is to present in as convenient form as possible a summary of the more important provisions of the state constitutions of the United States and to accompany this summary with some of the suggestions that have been made by publicists for governmental improvement. Its object is to pro- vide a manual for the use of those people, especially Tennes- seans, who are interested in revising the constitution of their sfate to the end that it may be brought more nearly in accord with the state's needs and with the progressive democratic ideas that are found elsewhere in current practice and in the writings of students of political science. With this end in view, after briefly outlining in Part I the provisions of the early constitutions under which Tennessee lived and the alterations that have since been made in them, the general contents of the state constitutions will be set forth topi- cally in such detail as space will permit. Incidentally, the rea- sons, historical and otherwise, for particular results will often be given; also arguments for and against particular measures mentioned. As to the latter, however, it should be remembered that a clear statement of what a proposition really is will u^- ally be found to be the best argument boih for and against it. Free quotation from the writings of others is consonant with and essential to the present aim, but the personal views of the writer, except in the final chapter, will be kept in the back- ground. No brief is held elsewhere for or against any of the proposed amelioratives. In regard to the numerous so-called radical proposals of the day, says President Butler,^ the sound and proper policy appears to be for a college or univer- sity to see to it that its students receive information and instruction on all of these subjects, and on similar matters that interest large groups of people, from its own responsible officers of instruction. lAnnual Report of the Tresldent of Columbia University to the Trustees Nov. 1, 1915, p. 23. ^j 5s STATE CONSTITUTION-MAKING. In attempting to make clear the meaning of reform propo- sals without either advocating or opposing them, this book takes a similar attitude. Effort has been made to exclude from its pages everything of a propagandist nature. While a considerable amount of more or lees original inves- tigation has been necessary in its preparation, the hope for the book's usefulness and not the claim of any originality is here expressed. Necessarily many of the pages are little more than dry catalogues of facts, though effort has been made to relegate to the foot notes as much as possible of this sort of material. Readers should make use of the table of contents and omit por- tions in which they are not interested. It should be remembered also that the book is intended to be a study of the provisions of the constitutions and that they are themselves arid reading. The subjects of the chapters of Part II were chosen with a view to presenting discussions of the proposals for governmental change that are most prominent in the public mind at the pres- ent day. The constitutions vary greatly. What is expressed in one may by others be left to statutory enactment or may be accom- plished by interpreting together two or more clauses that do not in themselves suggest it ; furthermore, what is clearly in the constitution of one state may be read into the constitution of another by the courts. The text of the constitution, therefore, furnishes only imperfect indication of a state's governmental development. Indebtedness for the assistance of numerous friends is grate- fully acknowledged. First of all should be mentioned Mr. T. I. Parkinson of the legislative drafting department of Columbia University for the loan of a copy of the invaluable Index Digest of State Constitu- tions prepared by his department for the use of the recent New York constitutional convention. It is a monumental work of more than 1,500 large octavo pages and it arranges tlie con- tents of the state constitutions under 405 heads and many hun- dreds of subheads; without it the present book could scarcely have been undertaken. A copy of the Digest of State Oonstitu- STATE CONSTITUTION-MAKING. 6 • tions, prepared for the Ohio convention of 1912, was furnished with his compliments by State Librarian J. H. Newman, as were also copies of their respective constitutions by the secretaries of state of most of the commonwealths. Correspondents residi- ing in every portion of Tennessee have responded courteously to questions concerning the present tendencies of public opinion in the state in regard to constitutional matters. Dean Charles W. Turner and Dr. J. R. Neal, of the University of Tennessee Law School, Dr. T. W. Glocker of the economics department of the University of Tennessee, Mr. Malcolm McDermott of the Knoxville Bar, and Dr. St. George L. Sioussat, of Vanderbilt University, have very kindly read portions of the manuscript and offered valuable suggestions. Mr. Robert Eugene Cushman, of the Political Science Faculty of the University of Illinois, has not only made possible for the writer the use of the library and other facilities of that University, but has been tireless in his help toward putting in final shape almost every portion of the book. Finally to the writer's mother is due his gratitude for a great deal of incidental assistance, to his father for much helpful criticism, and, most of all, to his sister. Marguerite Mc- Clure, for constant and indispensable helpfulness at every stage of the work. W. M. Knoxville, March 30, 1916. STATE CONSTITUTION-MAKING. SELECTED BIBLIOGRAPHY. (The books marked with an asterisk are especially recommended for reading supplementary to the present volume.) I. General Reference and Constitutionai. Law. American Constitutions. 1906. Texts of the constitutions of the Amer- ican Republics, published by the Pan-American Union. American Year Book. Edited by F. G. Wickware. Gives brief accounts of current iwlitical development. *Beard, Chas. A., American Government and Politics. (Rev. Ed.) 1914. Standard manual on the subject. , Readings in American Government and Politics. (Rev. Ed.) 1914. Documents, etc., illustrating the text. Cooley, Thos. M., The General Primoiples of Constitutional Latv in the United States. (3rd Ed. Rev., by A. C. McLaughlin.) 1898. Pre- sents succinctly the general prinpiples of constitutional law. , A Treatise on Constitutional Limitations. (7th Ed., with additions by Victor C. Lane.) 1903. Discusses the limitations , which rest' upon the power of the state legislatures. Cyclopedia of American Government. Edited by A. C. McLaughlin and A. B. Hart. 3 Vol. 1914. The most recent and complete encyclo- pedia of political science. Cyclopedia of Law and Procedure, especially article on Constitutional Law by George F. Tucker. Vol. 8. 1903. "Cyc" is the standard law encyclopedia among American lawyers. Digest of State Constitutioiu. Published by authority of the Board of Library Commissioners of Ohio, 1912. Sets forth after each sec- tion of the Ohio constitution the analogous provisions of the other state constitutions. Dodd, W. F., Modern Constitutions. 1909. A collection of the texts of the fundamental laws of twenty-two of the most important coun- tries of the world, with historical and bibliographical notes. ♦Hall, James Parker, Constitutional Lair. (In series entitled American Law and Procedure.) 1910. Sets forth the general principles of constitutional law under the main headings "General Conceptions," "Fundamental Rights" and "The Federal Government." Index Digest of State Constitutions. Prepared for the New York State Constitutional Convention Commission by the Legislative Drafting Research Fund of Columbia University, 1915. An exhaustive col- lection of the provisions of the state constitutions arranged mi- STATE CONSTITUTION-MAKING. 5 nutely by subjects. Not published for general circulation, but dis- tributed among the larger libraries. Johnson, Allen, Readings in American Constitutional History, 1116- 1876. 1912. Selected documents, etc., illustrating American politi- cal development. McClain, Emil, Constitutional Law in the Unite A States. (American Citizen Series.) 2nd Ed. 1910. Deals chiefly with the powers of the different branches of government, state and federal, and with individual rights. Thorpe, Francis N., The Federal and State Constitutions, Charters and . . . Organic Laws. 7 Vol. ' 1909. 59th Congress, 2nd session. House Document No. 357. The texts of all constitutions and amendments that had been adopted by the nation, states and de- pendencies prior to publication. The North Carolina constitutions are in Vol. 5, those of Tennessee in Vol. 6. Willoughby, W. W., The GonstitutiorMl Law of the United States. 2 Vol. 1910. Presents the underlying doctrines of American con- stitutional jurisprudence. , Principles of the Constitutional Lam of the United States. 1912. An abridgement of the author's larger work. Young, James T., The New American Oovernment and Its Work. 1915. Particularly stresses what government is doing. Its plans and its results. n. Books Relating to Tennessee. American Historical Magazine. Vol. I-IX. 1896-1904. Miscellaneous articles and source material relating chiefly to early history. Anderson, Douglas, Tennessee Constitutional Law. 1896. The con- stitutions of Tennessee and of the United States indexed and anno- tated by lengthy surcepts from judicial decisions. Brief topical index of principles of constitutional law discussed. ♦Caldwell, J. W., Constitutional History of Tennessee. (2nd Ed.) 1907. (1st Ed., 1895.) A critical and historical account. Much attention Is given to political matters not strictly constitutional in character. Encyclopedic Digest of Tennessee Reports. Especially article on Con- stitutional Law by Homer Richey. Vol. 3. 1907. (A supplemen- tary volume was published in 1914.) The standard work of its kind. Fertlg, J. W., The Secession and Reconstruction of Tennessee. (Univ. of Chicago doctorial dissertation.) 1898. A brief but thorough account ; lucid description of 1865 convention. Garrett, Wm. R., and Goodpasture, A. V., History of Tennessee. (Rev. Ed.) 1905. A school history but usually considered the best gen- eral account continuing to recent times. 6 STATE CONSTITUTIONrMAKING. McBain, H. L., and Mynders, S. A., How We are Governed in the Vmted States and Tennessee. (2nd Ed.) 1915. Used in schools of the state ; brief and elementary, but the best thing of the kind In print. *Neal, Jno. Randolph, Disunion and Restoration in Tennessee. 1899. (Columbia University doctorial dissertation.) An admirable ac- count of the events of the critical period of the sixties. Phelan, James, History of Tennessee. 1888. Probably the best history of the state ; carries the account to the 1830's. Roosevelt, Theodore, The Winning of the West. 4 Vol. 1895. An en- tertaining and thorough exposition of the struggles which made the country between the Appalachians and the Mississippi a part of the United States. *Sanford, B. T., The Constitution of 1196. (In Proceedings of the Bar Association of Tennessee.) 1896. Also published separately in pamphlet form. Historical and critical essay. Shannon, Kobt. T., Annotated Constitution of Tennessee. 1916. A com- plete and exhaustive exposition of text and decisions. Tennessee Historical Magamine. Vol. I, 1915, to date. Miscellaneous articles and source material. III. PpLrricAi, Theory and Governmental Organization. ♦Bondy, William, Separation of Governmental Powers. 1896. Columbia University iStudies in History, Economics and Public Law, V, 2. A thorough discussion of the separation of iwwers in theory, in history and in practice. Bryce, James, The American Commonwealth. 2 Vol. (New and Rev. Ed.) 1910. A critical account covering the whole field of Ameri- can government. Interesting as presenting the views of a sym- pathetic foreigner. , Constitutions. 1901. Essays upon the nature of constitutions. Burgess, Jno. W., The Reconciliation of Government with lAberty. 1915. Reviews the governments of the world, past and present, in an effort to show to what extent they have effected this reconcilia- tion. *Childs, Richard S., Shmt Ballot Principles. 1911. States lucidly the doctrine that only those officials whose duties are sufficiently in- teresting and important to attract public attention should be elected and that only so many as can be carefully scrutinized by the voters should be elected at any one time. Efficient Government. Proceedings of Academy of Political Science, III, 2, 1913. Symposium of discussions upon "The Adaptation of Written Constitutions," "The Selection and Removal of Judges," "Legislation and Administration" and "The Direct Primary versus the Convention." STATE CONSTITUTION-MAKING. 7 Ford, H. J., The Rise and Orowth of American Politics. 1898. Re- print, 1911. Interprets and explains the nature of American pol- itics. *Goodnow, F. J., Politics and Administration. 1900. Discusses the func- tion of political parties in harmonizing the policy determining and policy executing functions of government. Government of the State of New York. 1915. Prepared for the Con- stitutional Convention Commission by' the State Department of Efficiency and Economy and the New York City Bureau of Mu- nicipal Research. A very elaborate analysis with descriptive charts. ♦Lowell, A. Li., Public Opinion and Popular Government. (American Citizen Series.) 1913. Deals with one of the most difficult and the most monentous of political questions, — how to transmit the force of individual opinion and preference into public action. *Macy, Jesse, and Gannaway, Jno. W., Comparative Free Government. 1915. A study of the various processes and institutions by which free government is being attained in the United States, Europe and South America. Ostrogorski, M., Democracy and the Organization of Political Parties. 2 Vol. 1902. Investigates the working of democratic government and its underlying political forces as exemplified by England and the United States. , Democracy and the Party System of the United States. 1910. Based in part upon the author's larger work. Shows the develop- ment of extra-constitutional government through parties. *Wilson, Woodrow, Congressional Government. 1885. Many editions. Examines critically the methods of congress and contrasts the com- mittee system with the English cabinet system. , Constitutional Government in the United States. 1908. Re- print, 1914. (Lectures delivered at Columbia University, George Blumenthal Foundation, 1907.) The seventh lecture, "The States ■and the Federal Government," deals with their mutual relations. This book is the most complete expression of Wilson's political ideas. , The State. Rev. Ed. 1906. Analytical discussion of govern- ment, — historical, theoretical and practical. IV. The State Constitutions. *Dealy, James Q., Growth of American State Constitutions. 1915. De- scribes the historical development, the present provisions and the apparent trend of the state constitutions. Dodd, W. P., Constitution Making in the United States. Article in Cyclopedia of American Government. Brief but careful statement of cbnstitutional development. STATE CONSTITUTION-MAKING. * , Ttie Revision and Amendment of State Constitutions. 1910. (Johns Hopkins University Studies in Historical and Political Science. Extra Volumes. New Series 1.) Statement of the prac- tice of constitutional revision and discussion of the legal prin- ciples controlling it. Indiana University Bulletin, XII, 12. Nov., 1914. Conference on the question "Shall a Constitutional Convention-be Called in Indiana?" Papers and discussions on miscellaneous topics. Jameson, J. A., A Treatise on Constitutional Conventions. 18S7. Dis- cusses fully and from a legal standpoint the federal and state con- stitutional conventions. *Bevision of the State Constitution. Proceedings of Academy of Polit- ical Science V, 1 and 2. 1914^15. Miscellaneous papers covering a wide range of subjects suitable for constitutional treatment. Stimson, F. J., The Law of the Federal and State Constitutions of the United States. 1908. Emphasizes the more recent developments in constitutional law. Gives digest of state constitutions. Willoughby, W. W., The American Constitutional System. (American State Series.) 1904. Describes the constitutional character of the United States viewed as a political unit and explains the status of its various territorial subdivisions, indicating the extent of the powers of their several governments, V. State Legislatures. ♦Jones, C. L., Statute Law Making in the United States. 1912. Dis- cusses the limitations on legislative action, the drafting of bills and legislative expedients. Ilbert, Courtenay, The Mechanics of Law Making. 1914. Rules for legislative drafting by the clerk of the House of Commons. Kaiser, J. B., Legislative and Municipal Reference Libraries. 1915. Describes the functions of such libraries and discusses methods of conducting them. Mason, E. C, The Veto Power. 1891. (Harvard Historical Mono- graphs, No. 1.) Historical study of significance of presidential veto power. *Reinsch, P. S., American Legislatures and Legislative Methods. (Amer- ican State Series.) 1913. Describes the manner in which the state and federal law-making bodies are organized and operated. , Readings on American State Ooverninent. 1911. Illustrative addresses and documents. Stimson, F. J., Popular Law-Making. 1911. A study of the origin, history and present tendencies of law-making by statute. STATE CONSTITUTION-MAKING. 9 VI. State Administbation. ♦Finley, J. H., and Sanderson, J. F., The American Executive and Executive Methods. (American State Series.) 1908. Thorougli dis- cussion; treats of bothi the state and federal governments. Fisli, C. R., The Civil Service and Patronage. 1905. (Harvard His- torical Studies.) History, and analysis of the patronage system and civil service reform. Goodnow, Frank J., The Principles of the Administrative Laio of the United States. 1905. Sets forth fully the law of both central and local administration. Proceedings at the Animal Meeting of the National Civil Service Re- form League. 1884 to date. Papers and reports. *Beport of the Effloiency and Economy Committee, Illmois. 1915. Prob- ably the best and most thorough-going of reports of its kind. State Regulation of PuUic Utilities. 1914. (Annals of the American Academy of Political and Social Science, whole No. 142.) Sym- posium of articles on particular phases of the subject. VII. State Jtjdiciaby. *Baldwin, S. B., The American Judiciary. (American State Series.) 1905. Careful exposition of the. federal and state judiciary. Beard, C. A., The Supreme Court and the Constitution. 1912. Inquiry whether the framers of the constitution intended the court to pass on constitutional questions. Concludes that they did. Corwin, Edw. S., The Doctrine of Judicial Review. 1914. Presents the author's views concerning a number of important questions in American constitutional history, especially the doctrine of judicial review. f)avis, Horace A., The Judicial Veto. 1914. Three essays concluding that deciding upon the constitutionality of statutes is a political and not a legal function. *Haines, C. G., The American Doctrine' of Judicial Supremacy. 1914. Presents the history, scope and results of judicial control over leg- islation in the United States. Judson, F. N., The Judiciary and the People. 1913. Discusses from the conservative point of view most of the current questions con- cerning the judiciary. McLaughlin, A. C, The Courts, the Constitution and Parties. 1912. Five essays upon American constitutional problems. Pound, Roscoe, Th^ Scope and Purpose of Sodoligical Jurisprudence. In Vols. 24 and 25, Harvard Law Review, 1910-12. Discusses the historical development and present status of the subject. 10 STATE CONSTITUTION-MAKING. Ransom, Wm. L., Majority Rule and the Judiciary. 1912. Sets forth the reasons for the proposal that the people should reserve the power to recall judicial decisions. Reform in the Administration of Justice. 1914. (Annals of the Ameri- can Academy of Political and Social Science, whole No. 141.) iSymposium of papers on particular phases of the subject. Storey, Moorfleld, The Reform of Judicial Procedure. 1911. Dis- cusses particularly the reduction of litigation by legislation, the law's delay and criminal procedure. VIII. The Initiative, Referendum and Recall. *Barnett, Jas. D., The Operation of the Initiative, Referendum and Recall in Oregon. 1915. A minute and exhaustive study of the operation of direct legislation In the state where it has been most extensively employed. Beard, C. A., and Shultz, B. L., Select Docwments on the State-Wide Initiative, Referendum and Recall. 1912. Includes all of the con- stitutional amendments providing for a state-wide system of ini- tiative, referendum and recall then in force, several of the most significant statutes elaborating them, pending amendments, six important judicial decisions, etc. Equity. Quarterly. Best publication for current news of direct legis- lation development. *Initiative, Referendum and Recall. 1912. (Annals of American Acad- emy of Political and Social Science, whole No. 132.) Symposium of papers on particular phases of the subject. Munro, Wm. B., Editor, The Initiative, Referendum and Recall. 1912. Papers on important phases of the subject by prominent statesmen and publicists. Oberholtzer, E. P., The Referendum, Initiative and Recall in America. New Ed., 1911. Thorough discussion of the historical development of direct legislation and the recall. The author is opposed to their adoption. Wilcox, D. F., Government hy All the People. 1912. Discusses the initiative, referendum and recall as Instruments of democracy. IX. Suffrage and Emictions.- ♦Commons, J. R., Proportional Representation. (Snd Ed.) 1907. A thorough exposition. Shows historical significance of present move- ment for proportional representation. Crothers, Samuel McChord, Meditations on Votes for Women. 1914. Entertaining and lucid presentation of arguments for woman suf- frage; delightful from literary point of view. STATE CONSTITUTION-MAKING. 11 Dallinger, F. W., Nominations for Elective Office m the United States. 1897. (Harvard Historical Studies, Vol. 4.) Historical and criti- cal study of nominations by convention. Humphreys, J. H., Proportional Representation. 1911. Treatment of tie subject with especial reference to the English Parliament. Hearings before the Committee on Woman Suffrage. United States Senate. 1913. Gives arguments as presented on both sides of the question. Hoag, C. G., Effective Voting. 1914. Senate Document 359; 63d Con- gress, 2nd session. Discusses proportional representation and ex- plains the various systems of preferential voting. ♦Jones, C. L., Readings on parties and Elections in the United States. 1912. Collection of extracts arranged carefully for the student. Jenks, J. W., Principles of Politics. 1909. Contains interesting chap- ter on suffrage. Macy, Jesse, Party Organization and Machinery. (American State Se- ries.) Rev. Ed. 1912. Chiefly a description of party committees. Mathews, Shailer, Editor, Woman Suffrage. (Vol. 7, of Woman Citi- zen Series.) 1913. Collection of historical and informational ar- ticles. Murphey, E. G., Problems of the Present South. 1914. Study of suf- frage questions. Phillips, J. B., Educational Qualifications of Yoters. 1906. University of Colorado Studies. Summarizes educational qualifications of the several states. Stephenson, G. T., Race Distinctions in American Law. 1910. Con- tains excellent chapter on negro suffrage. ♦Sumner, Helen L., Equal Suffrage. 1909. A thorough study of the operation and effects of woman suffrage in Colorado. Women in Public Life. 1914. (Annals of American Academy of Po- litical and Social Science, whole No. 145.) Symposium of articles on woman suffrage, both favorable and unfavorable, and other phases of the subject. X. State Finance. Adams, H. C, Public Debts. 1887. Sets forth the principles under- lying the use of public credit. Shows historical development of the use of public credit. , Science of FinoMce. (American Science Series.) 1912. Stand- ' ard text book on public expenditure, public revenue and public credit. * Agger, E. E., The Budget in the American Oorrvmonwealths. (Columbia doctorial dissertation.) 1907. Discusses the methods used in the states for the safeguarding of public financial operations. 12 STATE CONSTITUTION-MAKING. * Annals of the American Academy of Political and Social Science: Whole No. 147, Readjustments in Taxation; whole No. 151, Public Budgets. Thorough-going symposia on the subjects. Bastable, C. F., Public Finance. (3rd Eld.) 1903. Thorough exposi- tion by a professor in the University of Dublin. Bullock, Cias. J., Selected Readings in PubUc Finance. 1906. Illus- trative articles from standard authors both American and foreign. Cooley, Thos. M., A Treatise on the Ln/w of Taxation. 2 Vol. (3rd Ed.) 1903. The standard work on tfie subject. Includes the law of local assessments. Ford, H. J., The Cost of Our National Government. 1910. Deals with tbe budgetary methods of the federal government. Greorge, Henry, Progress and Poverty. 1879. Reprint, 1912. Setfe forth the social and financial philosophy of the single tax. Haig, Robert Murray. The Exemption of Improvements from Taxa- tion in Canada and the United States. A report prepared for the Committee on Taxation of the City 'of New York. 1915. Gives the results of the author's investigations in a large number of cities, with generalizations and conclusions. Judison, F. N., Treatise on the Poiier of Taxation, State and Federal, in the United States. 1903. Complete treatise. Emphasizes dis- tinction between the taxing power and the construction of par- ticular statutes passed in the exercise of the power. *t(0wrie, S. Gale, The Budget. 1912. An investigation made for the Wisconsin State Board of Public Affairs. Discusses American and foreign budgetary methods. Need for a National Budget. 1912. Report of President Taft's Com- mission on Economy and Efficiency, House Document 854, 62nd iCongress, 2nd session. Result of a thorough investigation of con- gressional methods of financial control. Plehn, C. C, Introduction to Public Finance. (3rd Ed.) 1911. An excellent brief account. *Proceedvngs of the National Conferences on Taxation of the National [formerly International] Tax Association. 1907 to date. (Formerly State and Local Taxation. ) Reports and papers dealing with every phase of the subject. *Report of Special Tax Commission, State of Kentucky. 1912-14. Sets forth the results of a careful investigation and gives interesting suggestions for reform. Seligman, E. R. A., Essays in Taxation. (8th Ed.) 1913. Historical and critical discussion of the more important phases of the subject. , The Income Tax. (2nd Ed.) 1914. An exhaustive discus- cussion, historical and critical. STATE CONSTITUTION-MAKING. 13 Stourm, Rene, Le Budget. 1888. Tlie standard treatment of the bud- get. Wealth, Deht and Taxation. 13th Census. 1913. Includes an exposi- tion of the taxation systems of all of the states. West, Maac, The Inheritance Tax. (2nd Ed. Completely revised and enlarged.) 1908. (Columbia University Studies in History, Eco- nomics and Public Law, IV. 2, 1893i-4.) A careful and complete statement of the development of inheritance taxation in the United States. XI. SociAi, Legislation. American Lator Legislation Review. Vol. 1. 1911 to date. Quarterly. Current news and discussion. Bulletins of the Bureau of Labor Statistics. Issued at frequent but irregular intervals. Contain discussions of topics of particular cur- rent interest, statistics, c-ompilations of statutes, decisions, etc. Clarke, L. D., The Law of the Employment of Laim: 1911. Covers the field of law affecting the employment of labor in the United States. ♦Commons, Jno. R., and Andrews, Jno. B., Principles of Lalor Legisla- tion. 1916. Thorough-going discussion, both critical and construc- tive. Ely, R. T., Property and Contract in Their Relation to the Distribution of Wealth. 2 Vol. 1914. Treats of what the author considers the fundamentals of existing social and economic life from the point of view of distribution. Freund, Ernst, The Police Poiver. 1904. Standard treatise on what the author defines as "the power of promoting the public welfare by restraining and regulating the use of liberty and property." *Goodnow, F. J., Social Reform, and the Constitution. 1911. Shows the possibilities of constitutional development, through judicial inter- pretation, to meet current social needs. Hollander, Jacob H., The Abolition of Poverty. 1914. Discusses briefly the possibilities of the various currently projwsed reforms. Orth, Samuel P., Readings on the Relation of Government to Property and Industry. 1915. Brings together some of the most significant of current discussions of the subject, especially from the law re- views. Proceedings of Conference of Governors. 1908. Papers and discus- sions upon the conservation of natural resources. Rubinow, I. M., Social Insurance. 1913. A thorough discussion of insurance against industrial accidents, sickness, unemployment and old age, invalidity and death. Seager, H. R.^ Principles of Economics. 1914. A standard treatise; especially to be recommen-ded for its discussion of labor problems 14 STATE CONSTITUTION-MAKING. * , Social Insurance. (American Social Progress Series.) 1910. Presents a program of social reform. Discusses some of the problems. *Van Hise, 0. R., The Conservation of Natural Resources in the United States. 1910. Reprint, 1914. Careful treatment of the conserva- tion of minerals, waters, forests and soils. XIT. Ijocal Govjsenment. *Annals of the American Academy of Political and Social Science. Symposia ou commission government in American Cities, 1911 (Vol. 38, No. 3) ; County Government, 1913 (wiole No. 136) ; Effi- ciency in City Government, 1912 (whole No. 130) ; Proceedings of Conference of American Mayors on Public Policies as to Municipal Utilities (Vol. LVII), January, 1915. Beard, Ohas. A., American City Qovernmeni. 1912. A survey of recent tendencies — particularly of municipal functions. Bradford, E. S., Commission Govemmsnt in American Cities. (The Citizens' Library.) 1912. Gives history of the movement and com- pares the several forms of commission government. Cooley, Roger W., Municipal Corporations. (Hornbook Series.) 1914. Concise presentation of the general principles of the law of mu- nicipal corporations. *Cushman, R. E., City Planning am,d the Courts. In the Proceedings of the Second Annual Convention of the Illinois Municipal League, Nov. 2, 3, 1915. An exceptionally clear statement in concise form. Demlng, Horace E., The Oovernment of Amerioam, Cities. 1909. A study of municipal organization and of the relation of the city to the state. Contains reprint of Municipal Program of National Municipal League. Dillon, J. F., Commentaries on the Law of Municipal Corporations. 5 Vols. (5th Ed. Revised and enlarged.) 1911. The standard work on the subject. Pairlle, Jno. A., Municipal Administration. 1901. Reprint, 1910. A study In munipical history, activities, finances and organization. , Essays in Municipal Administration. 1908. Reprint, 1910. Series of articles on special topics. , Local Government in Counties, Towns and Villages. (American State iSeries.) 1906. Deals with the local institutions of the United States. Goodnow, F. J., City Oovernment in the United States. 1904. Treats of the relation of the city to the state and of the organization and functions of city government. * , Municipal Oovernment. 1909. Comparative study of Amer- ican and European methods. STATE CONSTITUTION-MAKING. 15 , Municipal Home Rule. 1895. Reprint, 1906. Delimits the sphere of action of an American city ; comparison with European methods of securing home rule. Howe, F. C, The City, the Hope of Democracy. 1905. Largely devoted to a study of municipal ownership and the land question. , The Modem City and Its Problems. 1915. Discusses both European and American cities and emphasizes the unfulfilled pos- sibilities of the latter. King, C. L., Editor, The Regulation of Municipal Utilities. (National Municipal League Series.) 1912. Collection of articles on regula- tion through franchise and state and city public utility commis- sions. *McBain, Howard Lee, The Law and Practice of Municipal Eom^ Rule. 1916. A very thorough and discriminating treatment from the legal point of view. *Munro, W. B., Government of American Cities. 1912. An excellent systematic treatise, showing both historical development and pres- ent practice and tendencies. , Government of European Cities. 1909. Thorough discussion of municipal government in Eng;land, France and Germany. * , Principles and Metlwds of Municipal Administration. 1916. Intended to supplement the author's work on the government of American cities. Deals with the business management of cities. Municipal Research. Monthly. Issued by New York City Bureau of Municipal Research. Object — "To promote the application of scien- tific principles to government." National Municipal Review. Vol. I, 1912, to date. Quarterly. Dis- cussion of city problems and chronicle of current events. Nolen, John, City Planning. 1915. Symposium by leading writers on the subject. Robbins, E. Clyde, Selected Articles on the Commission Plan of Mu- nicipal Government. 1909. Contains a selected bibliography of books, pamphlets and magazine articles. ♦Robinson, C. M., City Planning, 1916. Deals especially with the func- tional planning of streets and lots. Rosewater, Victor, Special Assessments ■ A Study in Municipal Finance. 2nd Ed. 1898. (Columbia University Studies in History, Eco- nomics and Public Law. Vol. II, No. 3, 1898.) Thorough presen- tation. Shurtleff, Flavel, in collaboration with Olmstead, F. W., Carrying Out the City Plan. Russell Sage Foundation. 1914. Discusses from the legal point of view the principal methods of realizing a city's plans for physical development. 16 STATE CONSTITUTION-MAKING. *Toulmin, H. A., Jr., The City Manager. (National Municipal League Series.) 1915. Discussion of every phase of the latest develop- ment in city governmental organization. Wilcox, D. F., The American OitV: A. ProWem in Democracy. 1904. Chiefly a discussion of the newer activities of cities. Woodruff, C. R., Editor, City Government by Commission. 1911. Col- lection of papers discussing the essential features of the subject. *Zeublin, Charles, American MuMcipal Progress. (New and revised.') 1916. A study of city problems from the sociologist's point of view. Indicates the vast scope of present-day municipal activity. XIII. MlSCELLAJVTEOTJS. ''American Political Science Review. Vol. I. 1907, to date. Quarterly. Articles on political matters, surveys of legislation, reviews, etc. *Annals of the American. Academy of Political and Social Science. Vol. I, 1885, to date. Bi-monthly. (Occasional supplements.) Articles on current topics. Symposia of discussions upon political and social matters of especial current interest. Bagehot, Walter, The English Constitution. (New Ed.) 1909. An ex- ceptionally keen analysis, by an Englishman. Considered a classic. Bourinot, J. G., How Canada is Governed. (9th Ed.) 1909. A clear but very elementary account. Cleveland, F. A., Organized Democracy. (American Citizen Series.) 1913. Discusses efficiency In democratic government. Coman, Katherine, Industrial History of the United States. (Kev. Ed.) 1913. Brief, but the best exposition of the economic development of the United -States. Croly, Herbert, Progressive Dem,ocracy. 1914. A penetrating discus- sion of present-day political thought ; takes thoroughly progressive attitude. , The Promise of American Life. 1909. Essay on the tendencies of American politics. Dickinson, G. L., Justice and Liberty. 1908. A political dialogue set- ting forth diverse attitudes toward various social and political questions. Howe, F. C, Wisconsin, an Experiment in Democracy. 1912. Sets forth the accomplishments of Governor La Follette. Shows the posibilities of state governmental development. Kales, A. M., Unpopular Government in the United States. 1914. A plea for changes in governmental organization and political meth- ods to meet modern requirements. STATE CONSTITUTION-MAKING. 17 Keith, A. B., ResponsiMe Government m the Dominions. 3 Vol. 1912. Relates to the self-governing British colonies. In 1909 the author published a much shorter work of the same name. Lippman, Walter, A Preface to Politics. 1914. A plea for a more ra- tional and vigorous attitude toward politics. Lowell, A. L., The Government of England. 2 Vol. 1909. The stand- ard American work oi; the subject. , The Governments of France, Italy and Germany. 1914. An abridgment of the author's "Governments and Parties in Conti- nental Europe," published in 1897. Ogg, F. N., The Governments of Europe. 1913. A thorough and scholar- ly exxwsition of government in the western European countries. *PoUtical Science Quarterly. Vol. I, 1886, to date. Articles on economic, political and histprical matters, reviews, biennial survey of political history, etc. *Proceedings of the Academy of Political Science. Vol. I, 1910, to date. Symposia discussions of political and economic topics of especial current interest. Proceedings of the American Political Science Association. Vol. 1, 1904 to Vol. X, 1913. Miscellaneous papers and discussions. Riverside History of the United States. 1915. 4 Vol. : I. Beginnings of the American People, by Carl Lotus Becker ; II. Union and De- mocracy, by Allen Johnson ; III. Expansion and Conflict, by Wil- liam E. Dodd; IV. The New Nation, by Frederic L. Paxson. An extremely readable account, kept within moderate length. Empha- sizes economic development. Walling, Wm. E., Progressivism — and After. 1914. Current political development discussed from the socialist's i>oint of view. Weyl, Walter E., The New Democracy. 1912. Criticises American I)olitics from the Progressive point of view ; emphasizes the tre- mendous complexity of modern life. 2 State Constitution-Making INTRODUCTION. What a Constitution Is. The development of democracy is a reflex of the evolution of popular intelligence. Democracy's success depends upon the intelligence of the people, just as the success of any other ruling i. , , fr, .\ ,,. ^ ^, , , * The Essential power depends upon the intelligence of the ruler. Any people, of Democratic therefore, that would ' develop a wise and just government through which to rule must look first to their own education and must prepare themselves thoughtfully and laboriously for the task of governing. How well the people of an American state have done this is apparent first of all in the written in- trument in which they have sought to express what they con- ceived to be their fundamental "rights" as individuals under the common government they have set up, and to provide in broad outline the manner in which the process of government shall be carried on and through what agents the functions of government shall be accomplished. Such written instruments are what Americans call their constitutions. They usually contain the results of the experi- ence gleaned through many years preceding their adoption ; and 2. immediately after their adoption in the very fact of their use, are Subject '' ^ ■' 'to Evolution. they begin to undergo change. The latter far-reaching truth was clearly realized by the framere of the Fundamental Constitu- tions under which the proprietors of Carolina sought to establish what they considered a model commonwealth in the latter half of the seventeenth century, and there was included the stipula- tion that, in order to avoid multiplieity of laws, which by degrees always change the right foundations of the original, all acts of parliament whatsoever, in what- soever form passed or enacted, shall, at the end of an hundred years after their enacting, respectively cease and determine of themselves, and without any repeal become null and void, as if no such laws had ever been made. (21) 22 STATE CONSTITUTION-MAKING. Furthermore, since multiplicity of comments, as well as of laws, have great incon- veniences, and serve only to oibscore and perp-lex, all manner of com- ments and expositions of any part of these Fundamental Constitutions or any part of the common or statute law of Carolina, are absolutely prohibited.' The notable development and expansion which the Constitu- tion of the United States experienced under the masterful guid- ance of Chief Justice Marshall forms the most palpable evidence of change in fundamental law without formal amendment; yet it is equally true that whenever the people, functioning through their legislators, administrators or courts, perform any govern- mental act, they are interpreting the meaning of the constitu- tional instrument; and as they do this their thoughts concern- ing its meaning gradually change and custom makes the con- stitution something that formerly it was not. This by no means amounts to the statement that the constitution is always just ■ what the people at a given time want it to be. Frequently they refuse to interpret it to mean what they wish it meant because the language of the written instrument is very plain or because a particular interpretation has become a petrified custom. But it is true, none the less, that no constitution can remain static. Like everything else in life, the fundamental law of a living people is always evolving, though the words called the constitu- tion remain the same.^ The Tennessee court has been a strict-constructionist court.^ 3. The people of Tennessee have preserved, as perhaps it has been tion of preserved in no other part of the country, the individualism Tennessee "^ ' Constitution, which pervaded the thought of the times when the first state con- ^Thorpe, American Charters, Constitutions and Organic Lans, Vol. 5, p. 2772 (2783, sec. 79-80). The constitutions were chiefly the worlj ol John Locke and were prepared at the instance of the Proprietors of Carolina. Loclje's Works, (8th edition) X, 175. "Prof. Beard (American Government and Politics, 72, seq.) shows clearly how, In addition to formal amendment, constitutions are subject to develop- ment through statutory elaboration, judicial expansion and such changes, brought about by custom, as occurred when the electoral college, designed to choose the President, became merely a figure head, bound by party command. 'In interesting confirmation of this statement — to cite a single one from the groat number of cases — is the decision that the legislature in making the con- tinued operation of a local law contingent upon the lavorable vote of the county was delegating its legislative powers to the extent of transcending its constitu- tional authority. The law in question was an amendment to a law that pro- hibited the running at large of hogs, sheep and goats in Rhea County. Wright V. Cunningham, 115 Tenn., 445, 91 S. W., 293 (1905). STATE CONSTITUTION-MAKING. 23 stitutions were being made,* and, in an era of development away from individualism, they have characteristically frowned upon change. It is evident, nevertheless, that the state's funda- mental law has not been static^ arrd in a sense it is inaccurate to speak of the constitution as of 1796 or 1834 or 1870. These are, indeed, years in which conventions have been commissioned by the people to change the formal wording of their constitu- tional instrument so as to make it more nearly conformable to what experience has shown can be readily interpreted accord- ing to the popular desire, but they have not determined the status of fundamental law for all the intervening years. Viewed thus strictly there is no constitution of Tennessee except the con- stitution of today, and the people of the state in criticising it are criticising themselves alone. In changing it clearly and distinctly through the utterances of a convention or a specific amendlment to the written instrument, instead of uncertainly through slow and not always well-proportioned development, they will be merely accomplishing efBciently and directly what in time would to some extent come about through the action of public oflflcials and the evolution of popular thought. That the people cannot by inaction altogether obstruct constitutional change is a fact which should always be borne in mind. Viewed historically, there is no inherent reason why there „ 4. •' ' ■' Constitutions "should be written constitutions. England's constitution of more ??„*'}"(. ^^ permanent principles, according to which the government func- tions, is not a written document, nor yet a specific instrument with superadded judicial and other ofQcial interpretation, but a vast collection of treaties, solemn engagements, like Magna Gharta, parliamentary statutes setting forth governmental powers, the great body of legal lore known as the Common Law » and, finally, the habits, practices and understandings — "the con- ^For the social and historical reasons for this, see Individualism in Tennea- see History, University Day Address, 1904, hy Prof. Charles W. Turner, — Uni- versity of Tennessee Record, Vol. 7, No. 5, p. 281. 'For interesting cases in which the court has clearly occupied new ground to conform with new needs and new conditions, see Arnold v. Knoxvtlle, 115 Tenn., 195; 90 S. W., 469; 3 L. R. A. (N. S.), 837n (1905), reversing the court's for- mer holding and permitting special assessments for local improvements ; and Frasier v. Telephone Co., IIB Tenn., 416; 90 S. W., 620; S L. R. A. (N. S.), 323n (1905), holding that telegraph poles erected in a street in which the public has an easement do not constitute an additional burden upon the fee. 24 STATE CONSTITUTION-MAKING. ventions"" — which are enormously influential, even controlling, in the actual process of government/ But the political experience of the colonies — with charters and written orders from across the seas — made the enactment of similar charters natural and logical when sovereignty passed from king to people. Implicit in the constitutions, furthermore, was the idea of the social contract — ^between the people and the governments they set up.' It is not the intention of this book to depart from the cus- tomary American usage of the word "constitution" to denote simply a written instrument, nor to undertake the discussion of constitutional questions beyond those suggested by the formal texts of the states' organic law. In a statement of ordinary length it would obviously be impossible to trace through their many ramifications the purely evolutionary changes to which constitutions are subject. There remains to be carefully noted, however, a brief state- Tht Function ^^^^ ^^ what is the function of a state constitution. The early cons«tution Constitutions were founded upon the theory expressed in the following language of the instructions which the county of Mecklenburg, famous for the so-called Mecklenburg Declarations of Independence,' gave to its delegates to the North Carolina constitutional convention of 1776, — Political power is of two kinds, one principal and superior, tbe other derived and inferior. . . . The principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ.' The superior power, by means of the constitutional instru- ments, specified certain of its prerogatives which the govern- ments might exercise and confided most of them to the legisla- tures, the governmental agencies most in favor with the people. "Name given by Dicey ; see Ogg, F. A., Governments of Europe, p. 41, seq. '"The term constitution was sometimes applied to the charters or written instruments binding particular colonies, but this term as usually employed both in England and America before the Revolution was understood to refer to the general and more permanent principles upon which government is based." Dodd, W. F., The Revision and Amendment of State Constitntions, p. 2. »Dodd, op. cit., p. 3. "The resolutions declaring the indepeudeuce of Mecklenburg County are usually supposed to have been adopted in May, 1775, but their authenticity has been rendered doubtful, if not entirely disproven, — see Hoyt, Wm. H., The Mecklen- burg Declaration of Independence (1907), 'Quoted by Dodd, op. dt. p. 14, (N. C. Colonial Records, X, 870a-f). STATE CONSTITUTION-MAKING. 25 Judicial interpretation built up the theory, which has ever since persisted, that the legislatures of the states,^ which were orig- inally sovereign bodies, unlike the United States, which was primarily a federation, are supreme in so far as they are not restrained by the constitutions.^ The state constitutions, there- fore, as they exist today, are in the first place .essentially limita- tions upon the otherwise plenary power of the legislature.* In the second place they are statements of the powers and func- tions which may or must be exercised by the governor^ and other ofBcers created by the constitutions and charged with putting into operation the commands of the constitution or of legisla- tive enactments.' The people, the fountain of all power, have delegated their sovereignty to their state governing agencies, the nature and organization of which are set forth in the con- stitutions; they have placed certain restrictions both positive and negative upon the powers granted and have usually included in the constitutions some means for making eflPective their own power to resume that which they have delegated. ^The reverse theory obtains, of course, tor congress : — "The powers of the legislature [i. e.. Congress] are defined and limited," — Marshall, C. J., In Mar- bury V. Madison, 1 Cranch, l."?7 (1803). 'Said Judge Haywood in Montgomery Bell v. The Bank of Nashville, Pecls's Tenn. Reports, 269 (1823), — "The first of these . . . questions is this: Could the Legislature of Tennessee create a banljing corporation? To which the answer is, that the Legislature of Tennessee, lilse the Legislatures of all other sovereign States, can do all things not prohibited by the Constitution of this State or of the United States, and, amongst other things, may establish a banii- ing corporation, with a capacity to sue and be sued, and, of course, to Institute and maintain this action." See also, — Concerning the limits of legislative power, including discussion of the validity of statutes alleged to contravene natural justice and common right, 8 Cyc 776, seq., and 806, seg. Concerning the latter, especially the dictum of Story, J., in Wilkinson v. Leland, 2 Pet. (U. S.), 627 (657). •From the express limitations others may be Implied. The subject of limita- tions on the power of the legislature is interestingly discussed by Prof. Ernst Freund in Proceedings of the Academy of Political Science, V., 98, seq. "The constitutional grant of powers to the governor is confined for the most part to those which are clearly expressed in the instrument. — Goodnow, Admin- istrative Law of the United States, 94, seq., citing Ea: Parte Holmes, 12 Vt., 631 ; Field v. People, 3 111., 79 ; Fox v. McDonald, 101 Ala., 51 ; French v. State, 141 Ind., 618 ; also In re Fire, etc.. Commissioners, 19 (Jolo., 482, 503. 'Strictly speaking provisions granting powers to or creating administrative ofllcers are themselves limitations upon an all-powerful legislature. PART I. CONSTITUTIONAL DEVELOPMENT IN TENNESSEE. PART L' CONSTITUTIONAL DEVELOPMENT IN TENNESSEE. CHAPTER I. The North Carolina Constitution of 1776.* The constitutional history of Tennessee properly begins with the adoption by the revolutionary congress of North Carolina, in 1776, of a permanent written instrument for directing the 6. government of that state.' Having joined the other colonies in Srof*^^' declaring independence of the British king, there was palpable cons°titutfonai necessity for this action on the part of North Carolina. In place ^'^*°''''- of the discarded royal charter there must be a popular consti- tution. The revolution had resulted in a change of sovereignty. No alteration had taken place, however, in the minds of the people relative to their ordinary political institutions and no very radical changes were provided for; in the constitutional his- tory of North Carolina the 1776 instrument is but a link in the chain of development. The student may, of course, in trac- ing backward the history of anything in the present go as far as his inclination dictates, but for a brief discussion of the con- stitution of Tennessee, the North Carolina constitution as it went into effect just when the settlement of that state's western 'Part I Is a revision of the writer's article entitled The Development of the Tennessee Constitution, published in the Tennessee Historical Magazine, Dec, 1915. ^General References: Caldwell, J. W., Constitutional History of Tennessee; Sikes, E. W., The Transition of North Carolina from Colony to Commonwealth, (Johns Hopkins University Studies In Historical and Political Science, Vol. XVI, p. 477.) For text of the constitution see, infra. Appendix 1. "The congress was elected for the particular purpose and sat from Novem- ber 12th to December 18th. (29) 30 STATE CONSTITUTION-MAKING. 7. General Character- istics of the Constitution of 1776. lands, the future Tennessee country, was getting well under way, forms the only reasonable point of departure.^ This constitution is embodied in a modest instrument, of somewhat less than 5,000 words, divided into two main parts, ''A Declaration of Eights, etc," and "The Constitution, or Form of Government, etc." The former contains twenty-flve subdivi- sions; the latter forty-six, besides a lengthy preamble, justifying the action of the representatives of the freemen of North Caro- lina by reason of the withdrawal of protection by the British Crown and the declaration by the Continental Congress of the independence of the "Thirteen United Colonies." The instru- ment was finally adopted by the convention which framed it and was not submitted to the vote of the people. Its two parts are less distinct in fact than in form. The "constitution" particularly declares that it includes the bill of rights^ and, indeed, contains within itself passages suggestive of rights rather than the regulation of governmental functions, — e. g., freedom from compulsory payments for the support of any religious organization,' immunity from imprisonment for debt, except in case of fraud, provided the debtor shall deliver up all his property for the benefit of his creditors,* and the right to bail except in capital offences where the proof is evident or the presumption great.^ On the other hand, the declaration of rights contains the admonition "that the legislative, executive, and supreme judicial powers of government, ought to be foi'ever separate and distinct from each other, "^ which, in substance, declares that the type of government contemplated was that of the separation of powers, the distinct demarcation of the legis- lative, executive and judicial functions of government and the officers who should administer them, which, according to Montesquieu's doctrine^ was essential to the preservation of liberty. It will be observed, however, that the constitution so 'Concerning North Carolina colonial history see Bassett, Jno. Spencer, The Constitutional Beginnings of North Carolina (Johns Hopkins University Studies in Historical and Political Science, Vol Carolina: A Study in English Colonial of North Carolina. =XLIV. 'XXXIV. XXI. Compare Ariz. II, 1. 2XVIII. 2IX; XIV. SVI, XX. 'XI. «XIX, but see Const. XXXIV. «XIII. »XV. •VIII. «XVII. "X. 'III. 'IX. 8XXII. 'VII. 32 STATE CONSTITUTION-MAKING. 10. Organization of the Government. 11. Property Qualifica- tions. of the essential rights of the collective body of the people," recog- nizes the necessity of ascertaining the limits of the state — in order to avoid future disputes — and so proceeds to set the bound- aries of North Carolina. There follow provisions against dis- turbance of the Indians within limits secured by legislative act, against the upsetting of titles claimed by reason of grants made during the colonial period, and against the construction of the language of the declaration "so as to prevent the establishment of one or more governments westward" of the state, by consent of the legislature." The prevention of "anarchy and confusion," for which end the new government is declared to be established,^ was en- trusted by the convention to a legislature of two houses, a Sen- ate and a House of Commons, "both dependent on the people,"^ empowered to appoint a governor^ and other executive officers* and Judges of the Supreme Courts of Law and Equity and Judges of Admiralty.' The old colonial legislature had proven the faithful bulwark of popular contentions ih the days when popular authority was extending itself gradually from few to many things, and that its successor should be entrusted with the many things now attained was both natural and logical. The members of this General Assembly, however, were to be kept in close touch with the popular fountain of authority by annual elections which were to be by ballot. From the point of view of present-day conceptions, this foun- tain was of somewhat restricted flow, including the sentiments of taxpayers and land owners only, — the former, if they fulfilled certain age and residence requirements, being allowed to vote for representatives,' and the latter, if, in addition, they were freeholdiers, of six months' standing, to the extent of fifty acres in the county, being allowed to vote for senators.'' In certain towns which were entitled to separate representation in the House, freemen possessed of freeholds could vote whether resi- dent or not.* Property qualifications upon the suffrage were thoroughly characteristic of the state constitutions of that early period. "XXV. »XIII, ■Preamble to Constitution. »VIII, ^Const., I. 'VII. SXV. •IX. "XVI, XXII, XXIV. STATE CONSTITUTION-MAKING. 33 Each county of the state was represented by one senator," ^jj^. who must have "usually resided" therein for one year and must Legislature. during that time have possessed within the county three hun- dred acres of land in fee.^ In the House of Commons each county had two members^ with similar residence requirements and having similarly owned for six months one hundred acres either in fee or as a life estate.^ ■it Six of the towns of the state had each one member of the House* and the townsmen were not entitled to vote for mem- bers from their counties.^ The town members, apparently, could be citizens of the county outside the town." When assembled, these representatives were vested with all the legislative authority of the state.' Each house elected a speaker, passed upon the qualifications of members, directed writs of election to supply vacancies and prepared bills for passage.^ All bills were required to be read three times" in each house and signed by the respective speakers.^ A majority, "actually present," was necessary to form a quorum;^ on mo- tion "made and seconded" the yeas and nays of all voters had to be entered upon the journals.' These journals were to be printed and made public immediately after adjournment. Any member could have included in the journal his protest against any action taken.* Each House sat upon its own adjournments and jointly they could adjourn to any time or place.^ By joint ballot the two Houses were to elect a governor for q^%^^ one year." He must be thirty years of age and a resident of ^^^{^^ five years and must own in the state "a freehold in lands and Legislature. tenements above the value of one thousand pounds," and he must not be elected for more than three terms in six years. To advise with the governor, they were each year to elect a Coun- cil of State of seven persons, of whom four should be a quorum, and who must keep a j.ournal of their advice and proceedings.' »II. ■XI. IV. 2XLVI. mi. Hb. aVI. •XLV «III. "X. =IX. " •XV. «VI. 'XVI. 'I. »x. "This reauirement first found in this constitution of Political Science, V, 103. 3 Proceedings of Academy 34 STATE CONSTITUTION-MAKING. By joint ballot also, they were to elect the more important judges and an attorney-general who were to be commissioned by the governor and hold office during good behavior;* further- more, they could appoint certain militia and army officers and were to elect annually a treasurer or treasurers and triennially a secretary of state." All state officials were made liable to impeachment by the legislature and to presentment of the grand jury of any court of supreme jurisdiction for offending against the state, by vio- lating any part of the constitution, or for mal-administration, or corruption.^ No person could hold more than one lucrative office at a time^ — a fact stated in general, and, in several in- stances in particular,^ — but militia service and the office of jus- tice of the peace were not considered lucrative.* Officials hand- ling public "monies" were nmde ineligible to other office until they should have satisfactorily accounted for them." Officers in the service of the United States and contractors or agents furnishing military supplies were ineligible to the legislature and Council of State," as were also clergymen.^ Persons deny- ing certain Protestant doctrines, or whose religious principles were incompatible with the "freedom and safety" of the state could hold no civil office of trust or profit.^ All officials were required to take an oath to the state and an oath of office." The General Assembly was authorized to choose annually by ballot, so long as necessary, delegates to the Continental Con- gress, subject to be superseded at any time, and in no case to serve for more than three successive years.^ The Governor was given permission to exercise all executive The*Governor P*^'*^^''^ of government, within the limitations imposed by the BMcSttvf constitution and laws of the state.' With the advice of the Officers. Council of State, he could fill vacancies while the legislature was not in session, and the powers of his office, in case of his absence from the state or his disability, were to be exercised by the speaker of the Senate and then by the speaker of the House until his successor should be named.' The governor was "XIII. 'XXXV. »XII. »XIV ; XXII ; XXIV. ' 'XXV, XXVI. iXXXVII iXXIII. ■ "XXVII. 2XIX =xxxv. 'xxxr. 'lb. 'e. g., XXIX. 8XXXII. STATE CONSTITUTION- MAKING. 35 also the commander in chief of the militia and, in the absence of the legislature and with the advice of the Council, he could "embody the militia for the public safety."* He could likewise "prohibit the exportation of any commodity," for not exceed- ing thirty days, at any one time.^ "Except where the prosecution" had been "carried on by the General Assembly"" or where the law should otherwise direct, he could grant pardons. He was the keeper of the great seal of the state^ and performed the financial functions that might have been expected of a comptroller in that time f that is, he was to draw for and apply such sums of money as should be voted by the general assembly, for the contingencies of govern- ment, "and be accountable to them for the same." He had to sign all commissions and grants of the state." After making the governor little more than a dependency of the legislature, it is not surprising that the constitution- makers neglected specifically to assign any recipient of the su- 15. preme judicial power. The existence of "Judges of the Supreme judiciary. Courts of Law and Equity" and "Judges of Admiralty"^ — as well as justices of the peace- was recognized in clauses making provision for their election and appointment. The future de- velopment of the judicial department was left, however, entirely to the legislature — a fact which did not prevent the courts from declaring unconstitutional and void acts of the legislature to I6. whom they owed their existence. In the celebrated case of Bay- Beginningg ard versus Singleton,^ decided in 1787, the judges, Doctrine of Judicial Review. after every reasonable endeavor had been used in vain for avoiding a disagreeable diilerenee between tbe legislature and the judicial powers of the state, at length with much apparent reluctance, but with great deliberation and firmness, gave their opinion separately, but unani- mously «XVIII. "XIX. »/B. Tlie only cases whicli the constitution mentions to be so carried on are Impeachments. (Const., XXIII.) 'XVII. 8XIX. "XXXVI. iXIII. =XXXIII. =Court of Conference of North Carolina, 1 Martin, N. C, 42. This decision is one of the most important early precedents of the doctrine of judicial review. For early Tennessee decisions see Chap. II. See also Chap. XIII. 36 STATE CONSTITUTION-MAKING. to the effect that no act that the legislature could pass could by any means repeal or alter the Constitution, because, if they couM do this, they would at the same instant of time destroy their own existence as a legislature, and dissolve the government thereby es- tablished. Consequently the Constitution (which the judicial power was bound to take notice of as much as of any other law whatever), stand- ing in full force as the fundamental law of the land, notwithstanding . the Act on which the present motion was grounded, the same Act must of course, in that instance, stand abrogated and without any efifect.* 17. Reflection of Current Economic Conditions. Individual representatives in the general assembly were to recommend, for appointment during good behavior, justices of the peace in their counties, who were to be thereupon commis- sioned by the governor.' The constitution orders a sheriff, cor- oner or coroners and constables for every county, but does not specify the mode of their election." It has doubtless been noted that all of the contents of this constitution heretofore mentioned have been confined to state- ments of rights and provisions for the framework of government together with a few perfectly elementary directions concerning the use of the ballot and deportment in oflfice. They include al- most the entire constitution. There is, however, a noteworthy clause ordering the legislature to establish "a school or schools" "for the convenient instruction of youth," and also to encourage learning in "one or more universities.'" Furthermore, there are several passages that deserve special notice as reflecting the economic condition of the times. Among them should be mentioned first the clause, "that every foreigner, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or, by other means, acquire, hold, and transfer land, or other real estate ; and after one year's residence, shall be deemed a free citizen,"* — reflect- ing as it does the state's desire for immigration and for a mar- ket for its own and its citizens' lands. Experience had shown the confusion resulting from Indian sales to speculators or *The act in question provided lor the settlement of certain property rights without trial by jury. See Declaration of Eights of the Const, of 1776, XIV. "Const., XXXIII. Hb. XXXVIII. 'XLI. 8XL. STATE CONSTITUTION-MAKING. 37 groups of settlers — and such sales were accordingly prohibited." Indian purchase-rights were reserved for the public acting throuigh the legislature. Other clauses already mentioned sought to check encroachments on Indian hunting-grounds and to pre- serve inviolate colonial land titles.^ The manner of holding land was to some extent limited by the clause that the legislature should regulate entails so as to prevent perpetuities.^ As the provision authorizing embargoes,' already mentioned, was a diplomatic and military rather than an economic measure, it may be said that, just as the simple government set up betokened an agricultural community with no need for any but the most elementary sort of legislation and administration, so the economics reflected was solely that which concerned land. CHAPTER II. The Convention of 1796.* At the time of the Bevolution and the change of government is. ° ° Settlement in North Carolina the settlement of Tennessee had already be- of Tennessee " and Events gun and with it the great westward migration movement which Leading up was destined to be the prime economic event of the period — and organization as a State. of which the watchword was land. For many years past the wasteful methods of agriculture in use in the tidewater districts had been gradually consuming the fertility of the soil without replacing it and increasing popu- lation in the older portions of the colonies, augmented by un- precedented immigration from abroad, had been forcing the frontier farther and farther inward. The farther-most settlers, •XLII. ID. R. XXV. 2D. R. XXIII. "Const. XIX. *General References : Journal of the Convention, 1796 ; Caldwell, J. W., Con- stitutional History of Tennessee; Sanford, E. T., The Constitution of 119S, (In Proceedings of the Bar Association of Tennessee, Vol. 15, p. 92, 1896) ; Phelan, James, History of Tennessee ; Roosevelt, Theodore, The Winning of the West. For the text of the Const, of 1796, see, infra. Appendix 1. 38 STATE CONSTITUTION-MAKING. pursuing the line of least resistance, had followed in the wake of the hunter and trader down the western valleys of Virginia to the headwaters of the Tennessee river and, crossing the paral- lel 36° 30', had unconsciously entered the western country of North Carolina. Lands had been purchased from the Indians and a temporary government — independent and thoroughly democratic — had been set up on the Watauga by 1772.' Always in the vanguard were to be found men of ambitious 19- schemes, men who sought wealth in prior claims to the soil — Speculation, which they would dispose of to those who should come after, seeking to make it fruitful. Pushed on by economic necessity and led by dreaming speculators — and perhaps by some, too, who dreamed rather of fame or of empire — people come in grad- ually increasing numbers to endure the hardships of pioneer life, to tempt the bitter cruelty of the Indians and, most important, to make a clearing, plant a field of corn and seize possession of the land in fact. It was not without some misgivings that they invaded a country that seemed to belong already to its natives, but the irresistible logic, expressed long afterwards by Eobertson when he said I have doubts whether a tribe of Indians settling a hundred or two miles in villages should have, and hold, a good title to a large unsettled Country about them," must have been evident even to speculators, and gradually by fair means or foul, the white man made the land undeniably his own. In 1778, all of its western territory having been organized as Washington County, North Carolina opened a land oflBce, and allowed persons desiring land to file with the Entry Taker a description and location, giving the remarkable natural ob- jects by which it could be identified, after which it would be surveyed and a grant for it would be issued by the state.' A "Caldwell, op. clt., 16, quoting Bancroft, IJiet. of V. 8., Ill, 403. says that the Watauga settlers "framed laws for their present occasions, and set the people of America the example of erecting themselves into a state independent of the authority of the British King." "Letter to Willie Blount, 1811. Draper Mss. U, V, 192. 'See Katherine Coman. liulimtrinl History of the United Stales, 127, 128 ; Smith, L. D., The Land Laws of Tennessee, Proceedings of the Thirteenth An- nual Meeting of the Bar Association of Tennessee, pp. 49, seq. STATE CONSTITUTION-MAKING. 39 price was charged, and the amount enterable by one person limited, but the restrictions were easily evaded and special grants to individuals and companies (who did not hesitate to bring every possible influence to bear with legislatures) soon resulted in enormous and valuable holdings centered in the hands of a few. Long before Tennessee became a state, appar- ently, land near the more important settlements had become dear ; in Nashville in 1787 only a small fraction of the free white men of twenty-one years and upwards, were listed as owners of land.* The leading men were keen as to what created land values, as is interestingly indicated by William Blount, who, in writing to ask assistance for a friend in buying Cumberland lands, added, I think It would be best not to say any Tbing about the General's going to Cumberland, the Report of Men of his Rank going may raise the Price." The great desideratum was to attract settlers, and to do this trade must be started, export routes procured, and the In- dian peril definitely disposed of. The governments east of the ^^^o. mountains, restrained because of their weakness, well-nigh over- f^Pfj^^'t'^* come with the magnitude of their tasks at home and none too conversant with conditions on the frontier, failed to make head- way toward a solution of these problems. The Indians con- tinued their ravages. Spain continued to restrict Mississippi navigation. Many reckless and short-sighted frontiersmen were ready to separate from the United States and unite with Spain or drive the Spaniards from New Orleans and set up independ- ent governments of their own. The movement which resulted in the State of Franklin was but a local crystalization of the separatist instinct that pervaded the whole west ; and its leaders, having once thrown oflf the North Carolina restrictions upon the acquisition of land, were ready to unite with the United States, or, if necessary, with Spain, in order to gain their economic ends.^ *Mss. N. 1, 6, Tenn. Hist. Soc. Library. "Letter to John Gray Blount, Oct. 12, 1795. Draper Mss. XX, IT, 48. iThe Franklin Movement, that is, the separation of the eastern counties of what is now Tennessee and the setting up of an independent government took place upon the first cession of North Carolina's western territory to the United States in 1784 — an action which was shortly revoked. 40 STATE CONSTITUTION-MAKING. Happily the counsels of the conservatives prevailed. The 21^ children of the first settlers were yet young men when the In- and Industry, dians were effectually quelled in the campaigns that were most prominently featured by the destruction of Nickajack, and a stronger federal government had procured the treaty of San Lorenzo, concluding the long, bitter controversy over the navi- gation of the Mississippi by opening the great river to commerce with right of deposit at New Orleans." The time was rightly one of confident hopefulness and, with agriculture firmly established, despite occasional crop failures, the farmers could look forward not only to sending their pork, tobacco, hemp, rice and indigo over the wagon roads to eastern sea ports and down the rivers to New Orleans, but to extending their exportable produce to cereals, flax and dairy products. In exchange would come the lOnged'-for productions of the indus- trial world — only just beginning to extend itself to Tennessee in the manufacture of iron and of homespun cloth. Natural re- sources were known to be varied and abundant." The political changes which the twenty years experience be- 22 tween 1776 and 1796 had produced are scarcely less noteworthy -Development, than the economic. The sway of the North Carolina constitution had been intermittent in Tennessee. There had been several isolated communities that found it necessary to adopt temporary forms of government until the state's rule could be extended to them.* Chief of these was Cumberland, which, in 1779 and 1780, 23. was started, apparently as a part of the vast speculation schemes Cumberland of Richard Hendersou, and which adopted its celebrated com- Compaet. pact, taken up to a considerable extent with land regulations, but providing for a representative court, in which was vested all the governmental powers granted. No fixed term of oflSce for the members of this court was specified, but there was the stipulation that as often as tbe people in general are dissatisfied" with the cloings of the Judges or Triers they may call a new election at any of the . . . stations, and elect others in their stead, having due re- ^Johnaon, A., Union and Democracy (Riverside History of tlie United States), 87. 'Smltli, Daniel, A Short Description of . . Tennessee, Phila., 1796. (Publlslied by Mathew Carey.) *See Caldwell, op. clt., ch. I, and pp. 43 and 75. STATE CONSTITUTION-MAKING. 41 spect to the number now agreed to be elected at each station, which person so to be chosen shall have the same power with those In whose room or place they shall or may be chosen to act." The Franklinites adopted the North Carolina constitution ;" The^'state not, however, until a very earnest effort had been made to have °* Fiankiin. chosen a document drawn up chiefly by Rev. Samuel Houston providing for manhood suffrage, a single-chambered legislature'' and a governor elected by the people.* Finally, in 1790, the United States accepted North Carolina's Tife^Territory cession of its western possessions. During the interregnum the (^"'qmo^* °* government was for the most part under the control of a gov- ernor appointed by congress, though toward the end of the period, as already intimated, there was an assembly, including, besides the governor, a House of Kepresentatives elected by the people and a Council of five persons appointed by Congress, from ten nominees of the house." Meantime «ther states had been framing constitutions and by ^^^■ 1796 a Tennessee constitutional convention could draw material o('?^"s"ate" from outside as well as from home experience. In 1795, the year following the Nickajack expedition and the one which witnessed the San Lorenzo Treaty, an enumeration of the people showed that the country was eligible for statehood. The next year, ac- cordingly, since membership in the Union as an independent commonwealth was thoroughly desired, a convention was called together at Knoxville to frame the requisite organic law for a new state. As chief models for its work the convention had the North Carolina constitution and the constitution of the United States. The first thing that strikes one about the instrument it drew up is the now familiar subdivision into articles and sections, as in the federal constitution. A preamble declares the right of 'Putnam, A. W., History of Middle Tennessee, p. 96. The Cumberland Com- pact, preserved nearly entire, Is published by Putnam, ib., 94, seg. "The late Professor Karnes says that the Franklin gorernment was "social- istic" to the extent that the county courts not infrequently fixed the price of whiskey and tavern rates for meals — The Government of the People of the State of Tennesesee, 23. 'Also proposed in 1796 convention, see Journal of Conv. (Reprint, 1852), p. 9. 'For text see Ramsey, J. G. M., Annals of Tennessee, pp. 325, seq, 'For the text of the ordinance for the government of the Territory Northwest of the Ohio, see Haywood, Jno., Civil and Political History of Tennessee (1891 Reprint), 489. See also Thorpe, Constitutions, 957; for the act adopting it for the Southwest Territory, 8413. 42 STATE CONSTITUTION-MAKING. the people to enter the federal union as a member state and they mutually "agree with each other" to form themselvs "into a free and independent State by the name of the State of- Tennessee." There follow eleven articles and a schedule, comprising alto- gether about 7,000 words. The work of the convention was not submitted to a popular vote. While the political affairs of the state and the general pro- 27. ^ visions of its constitution are, as a rule, considerably influ- Reflection of ' . ,. . Economic enced, directly or indirectly, by prevailing economic conditions, only a small proportion of the provisions of the constitution, as was seen in the previous chapter, can be expected clearly and palpably to reflect the economic life of the times. These clauses are of sufficient interest and importance, however, to permit separate treatment and to be set forth at the beginning of the discussion of each of the Tennessee Constitutions. The provisions of the constitution of 1796 reflect in several ways the economic interests of the state as conceived by the members of the convention. The most striking of these provisions is the resounding decla- ration that an equal participation of the free navigation of the Mississippi, is one of the inherent rights of the citizens of this State ; it cannot therefore, be conceded to any prince, potentate, power, person or per- sons whatever.' It was expressly declared that no law should be made iha- pairing the obligation of a contract^ — a provision of some im- portance to the commercial and moneyed interests. Its inser- tion, however, was scarcely necessary in view of the similar re- quirement of the federal constitution.' Industry, not to be left behind by trade, found recognition in the clause that "no article manufactured of the produce of this State shall be taxed otherwise than to pay inspection fees."* As in 1776 the prohibition of perpetuities and monopolies'' was an ancient political principle rather than an indication of cur- rent economic abuse, and should not be included here. The re- maining economic provisions pertain to land, and are (1) decla- 'XI, 29. This provision is still In the constitution. Const. 1870, I. 29. =XI, 20. H, 10. 'I. 27. "XI, 23. STATE CONSTITUTION-MAKING. 43 rations having in view the settlement of certain vexed questions of title to the lands south of the French Broad, Tennessee and Big Pigeon rivers by securing the residents in the tracts occu- pied by them," and (2) the method adopted for taxing land.' The tax clause is the most remarkable feature of the con- 28. The Land stitution as enunciated in 1796.* It made all privately owned Tax. lands taxable, but added that no one hundred acres should be taxed higher than another, except town-lots, which should not "be taxed higher than two hundred acres of land each;" further- more, that the free poll tax should not be greater than the tax on one hundred and the tax on slaves not greater than on two hundred acres of land. No limit was placed upon the taxation of other property, except manufactured goods, as already noted, but according to the practice of the times the property men- tioned had to be relied upon for most of the public revenue. There was nothing deserving unbridled condemnation in the fact of specific taxation instead of attempting to tax land ac- cording to its value. Such a tax was by no means unknown at that time; it was in use in some other parts of .the country" and the people of Tennessee had become used to it while under the jurisdiction of North Carolina. Anything else would .prob- ably have been administratively impracticable. Nevertheless, the possibilities of the tax for their harm or help were known to the land owners. The men who set up the State of Franklin had cited as an instance of the sacrifice of their interests an act of North Carolina in which, notwithstanding our local situation and improvement being so evidently inferior, that it is unjust to tax our lands equally, yet they [the North Carolina assemblymen] have expressly done it ; and our lands, at the same time, not one-fourth" of the same value.' Furthermore, the question of the amount of the land tax had been strenuously disputed in the territorial assembly in 1794 when the Council, a majority of which were among the landed »XI, 31. See also Sched. 8. 'I, 26. *For Interesting diverse views of this clause, see Sanford, op. clt., 92, and Phelan, op. clt. p. 253. See also Roosevelt, op. clt. IV, 118 ; Caldwell, op. cit. 138, neq., 164. »See Ely, R. T., Taxation in American States and Cities, pp. 119-120. But taxation according ro value was more usual. 'Quoted by Haywood, Jno., Civil and Political History of Tennessee. (Re- print, 1891.), p. 152. 44 STATE CONSTITUTION-MAKING. 29. Organization of the Government. 30. Declaration of Rights. barons, had appointed one of its menatoers, the largest landowner in the territory, to draw up its tax proposals, and had striven long for poll taxes and low land taxes against the reverse conten- tion of the more popular portion of the assembly.^ The interesting and significant things were that such a rule of taxation should have been placed in a fundamental law in- tended to be permanent, at a time when the country was grow- ing rapidly and when, consequently, divergences in land values must constantly become greater ; and that the taxation of town lots should have been limited by what might be deemed rea- sonable in taxing rural lands. The limitation upon the poll taxes amounted to a concession to the party opposed to the large land-owners. Politically, the constitution of 1796, while not expressly de- claring that the powers of governments are distributed or sepa- rated among three branches, devotes an article to each of the legislative, executive and judicial functions, at the beginning of each of which is the declaration that they are respectively vested in the legislature, governor and courts. To the Declaration of Riglits is accorded merely a separate article — the last one — in- stead of one of the two parts of the entire instrument. The Tennessee convention after omitting the provisions about frequent elections and "recurrence to fundamentals" and those which declared that no law should be suspended without consent of the legislature and that no man was entitled to privileges from the public save in return for services i-endered, proceeded to retain the other North Carolina "rights," express- ing them sometimes in similar, sometimes in different or qualify- ing language, and to add to them a few others. Since government is instituted for the common benefit, "the doctrine of non-resistance against arbitrary power and oppres- sion" was declared to be "absurd, slavish, and destructive to the good and happiness of mankind ;"'' the people were declared to have always the right to alter or abolish the existing govern- ment.* Religious test for public oflSce was forbidden." Freedom ^See Journals of the Legislative Council and of the House of Representatives, 1794 ; also 1795. »XI, 2. *XI, 1. "XI, 4 ; but by VIII, 2, denial of certain Christian tenets disquallfles one from holding civil office. Compare 1776 N. C, Const., XXXII. STATE CONSTITUTION-MAKING. 45 from Tinreasonable searches and seizures, in addition to freedom from general warrants, was asserted." Quartering of soldiers in time of peace without consent of the owner of the house or in time of war but in a manner prescribed by law was forbidden.' Citizens unless in the army of the United States or the militia in actual service were to be exempt from corporal punishment under martial law,* and compulsory military service was not to be required of citizens willing to pay an equivalent;' nor were any man's services or property to be taken for public use with- out the consent of his representatives and just compensation.^ Bills of attainder were forbidden and to freedom of the press was added freedom of communication;* but responsi- bility for abuse was provided for. Truth, however, was to be allowable in evidence on prosecution for publications concerning public officials, and in all libel indictments the jury was to de- termine both law and fact, under direction of the court as in other cases. The writ of habeas corpus was made suspensible by the legislature dxiring rebellion or invasion if the public safety so demanded.' "Judgment of his peers" as well as the "law of the land" might deprive one of life, liberty or property.* Prisoners were not to be treated with unnecessary rigor,' nor might any one for the same offence be put twice in jeopardy of life or limb." To the former rights of a person accused of crime were added right of hearing by himself and counsel, compulsory process for obtaining witnesses in his favor, a "speedy" trial and, finally, a jury of the county or district where the crime was committed,'' — a provision destined to remain* and cause much trouble in the future." Citizens of the state were given the privilege, under direction of the legislature, of bringing actions against the state.^ The suffrage provisions were greatly simplified and ^^^'''lo- Maniiooa cratized by the convention of 1796. Adult freemen — ^nothing Suffrage. was said about color — who were inhabitants of the state could vote in a county where they resided and were possessed of a «XI, 7. »XI, 8. Magna Charta, 39. 'XI, 27. "XI, 13. 8X1, 25. 'XI, 10. »XI, 28. 'XI, 9. iXI, 21. sConst. 1870, I, 9.— "district" omitted, 2X1, 19. 'Infra, ch. 5, 23. 'XI, 13. »XI, 17. 46 STATE CONSTITUTION-MAKIXG. freehold ; if inhabitants of the county for six mouths they could vote without further qualification.^ Electors were to be privi- leged while going to and from the polls.^ Elections continued for two days.^ The general assembly provided for consisted of a Senate and 32. a House of Eepresentatives,^ "both dependent on the people." Legislature. Members of the House were apportioned among the counties according to the number of taxable inhabitants, to be ascer- tained by periodical census, the number to be not less than twenty-two nor greater than twenty-six until the number of tax- able inhabitants should be forty thousand, and after that event at such ratio that the whole number of repre.senatives should never exceed forty." The senators were to be from one-third to one-half as numer- ous as the representatives and were to be apportioned among districts fixed by the legislature containing such number of tax- able inhabitants as to be entitled to not more than three." No county was to be divided in forming a district and counties joined must be adjacent.^ The term of oflSce was two years for both senators and representatives." To be eligible to either house one must be twenty-one years old and "possess in his own right" two hundred acres in the county he represented. He had to be a resident of the state three years, and of the county one year.^ The powers of the legislature were more fully specified than in 1776. The quorum was raised to two-thirds, but a smaller number could compel the attendance of absentees.^ The issu- ance of writs of election to fill legislative vacancies passed from the legislature to the governor.^ Each house could make its own rules,* punish disrespect,^ and with concurrence of two- thirds expel a member, though not a second time for the same "III, 1. =1, 12. =111, 2. "I, 9. «I, 5. «I, 11. "I, 1. »I, 9. "I, 2. 'I, 3. 4. 'I, 4. »I, 5. 'I, 7. ''I, 8. This provislou makes It possible for a minority to prevent legislative action by absenting themselves from the state. Houston's constitution proposed that in case of no quorum the absentees without "reasonable excuse" should pay the expenses of the house until a quorum was reached. (Sec. 5), — Ramsay, J. G. M., Annals of Tennessee, p. 327. STATE CONSTITUTION-MAKING. 47 offence." Members had limited privileges from arrest going to or from sessions and were not elsewhere responsible for utter- ances therein." Instead of voting jointly on extraordinary ad- journments the two houses were now merely required to agree.* Rejection of a bill was to be final for the session." Sessions were ordinarily to be open.^ To the former safeguards of the public purse was added the definite requirement that no money should be drawn from the treasury but in consequence of appropriation by law.^ Ineligi- bility of an individual to more than one lucrative ofiice was pro- vided for^ but the North Carolina clause rendering contractors of military supplies ineligible did not commend itself for reten- tion in times of peace. Justices of the peace and officers of the militia, though their offices were not "lucrative," were expressly declared not ineligible to the legislature.* The governor, elected for two years,^ and ineligible for more 33 than three consecutive terms, was to be chosen by the qualified and other ' •' ^ Executive voters and the election returns were to be opened in the presence Officers, of a majority of each house, who, in case of tie or contest, were to decide who should be governor.' The minimum gubernatorial age was reduced from thirty to twenty-five years,' the property qualification was to be simply a freehold of five hundred acres, and residence in the state four years.* The new powers given the governor were (1) to grant pardons without limitation, save in cases of impeachment,'' (2) to require information from executive officers,^ (3) to convene the legislature on extraordi- nary occasions, stating to it the causes therefor.^ His powers to draw money from the treasury and to lay embargoes as set forth in the North Carolina Constitution were not retained. The gov- ernor was given the duty of informing the legislature concerning the state of the government and of recommending legislation,' 'I, 10. n, 13. n, 16. II, 19. =1, 21. H, 23. *I, 23. »II, 4. eil, 2. m, 3. Hb. »II, 6. III, 8. ^11, 9. The veto power originated in the 1870 const. «II, 11. 48 STATE CONSTITUTION-MAKING. and was, finally, commanded to take care that the laws should be faithfully executed.* The expressed succession to the office of governor extended only to the speaker of the Senate." The term of the secretary of state was increased to four years and he was expressly given the duties of keeping records of the governor's acts and doing whatever the legislature might require". The treasurer's term was increased to two years.'' All appointments not otherwise directed were expressly stated to be by the legislature.* The power of impeachment of civil officers was vested in 34. the House of Representatives. Conviction could be obtained Impeachment. '^ only by a vote of two-thirds of the Senate, sitting on oath as a court of impeachment, judgment to extend to deprivation of and disqualification from oflice. Liability to trial in the regular manner existed irrespective of impeachment." An article^ of twelve sections defines in considerable detail ^35- the judicial system of the state, but leaves the establishment Judiciary. of the courts and appointment of the judges entirely to the leg- islature within the general mandates for "superior and inferior courts of law and equity'"* which must be accorded certain speci- fied powers. Judicial officers were to serve during good be- havior.^ A certain number of justices of the peace were required to be established in each county.* Later on, as the function of The^boctrine *^^ courts to decide upon alleged conflicts between constitu- Eevtew"'^' tioual provisions and ordinary legislation grew apac^ depend- ence by the courts for their very existence upon the legislature, jealous of this judicially-assumed power, became more and more illogical. There was the possibility of a legislative response in the nature of abolishing the court — which, indeed, actually oc- curred in Kentucky in the 1820's. The act for overthrowing the court was in turn declared unconstitutional and the whole mat- ter became an issue of partisan politics." VI, 1. 'VI, 2. A frequent arrangement for both judicial and administrative officers. Originally merely geographical, the grand divisions are now politically significant. ^VI, 3. «VI, 4. Hi. "For text. see Appendix 1, "VI, 5. 'VI, 6. «VI, 15. S6 STATE CONSTITUTION-MAKING. constable;" and the justices of the peace, in whom was expressly vested a portion of the judicial power of the state,^ were like- wise to be elected by the voters of the districts instead of by the legislature — though their jurisdiction was to be coextensive with the county. Their tenure was made six years/ instead of during good behavior. The election of the sheriff, trustee and register was taken from the county court and assumed by the people.^ The elec- tion of the coroner and ranger remained with the justices,* who were accorded the power of filling vacancies in the other oflSces. 51- The long-complete cessation of Indian warfare and the con- Miscellaneous ° '^ Provisions, sequently diminished importance of the militia resulted m a great simplification of the constitutional provisions concern- ing it.° Beligious disqualifications for office were continued," but the increasing civilization of the people was manifest in a sec- tion disqualifying duelists from office and making them punish- able as the legislature might direct.' A disposition to limit the activity of the legislature in vari- ous incidental ways was apparent — the fruit of unhappy experi- ence. Divorces must henceforth be granted only by the courts.' The authorization of lotteries was prohibited." The power of passing private legislation was restricted and there was added the provision that powers over local affairs might be vested in the courts.^ Education^ was discussed in a declamatory section', which, however, sought to protect the school fund and made it the duty of the legislature to appoint a board to superintend it. All land or money from land granted to the state by the federal govern- ment was to be devoted to education or internal improvements. »VI, 15. iVI, 1. 2VI, 15. »VII, 1. Register to serve four years instead of during good behavior ; the others as formerly for two years. Sheriff Ineligible for more than three terms in eight years. ■■Coroner, as before for two years ; ranger the same, though formerly to serve during good behavior. "VIIl. «1X, 1, 2. 'IX, 3. Dueling was already a crime at common law. ' 'XI, 4. »XI, 5. >XI, 8. ^XI, 10, 11. Concerning education in Tennessee before the civil war, see Whitalser, A. P., The PuhHe School System of Tennessee, 18341860, — ^Tenu. Hist Maga., II, p. 5 (March, 1916). STATE CONSTITUTION-MAKING. 57 Finally, instead of the provision for calling a convention to change the constitution, there was devised a method of amend- ing it by vote of two successive legislatures and submission to the electorate.^ The convention of 1834 did its work well. It met because 52. Estimate the state wanted constitutional revision, not because the people of the Convention's Simply wanted a constitution, as in 1796, nor yet, as was the work, case in 1870, because a political party wanted to regain for the majority of the white men of the state their anti-bellum control of its affairs. The time was one of prosperity and peace when men could look forward with unbounded hope and even Tennes- seans could in some measure forget their conservatism and, in addition to meeting courageously the needs that time and the progress of the state had brought forward, could prepare an instrument that would stand the test of long future use. The changes that have been made in the constitution since 1834 have been suflSciently non-essential to warrant the statement that Tennesse today is living under the organic law framed in that year. Its faults are largely those that the succeeding years have brought. In its day, it worthily marbed the accession of the people to power, the triumph of democracy, and the beginning of a new era of progress, of activity and of State leadership.* CHAPTER IV. The Convention of 1870.' The years following the adoption of the democratized con- 53-, stitution, as framed in 1834, are usually thought of as Tennes J^|4^]'|^g- see's golden age. Brought to the forefront of the nation's poli- tics by the leadership of Jackson and later by the presidency of "XI, 3. Concerning this see, infra, ch. 22. 'CaldweU, op. cit. 192. "General References : Journal of the Convention, 1870 ; Caldwell, J. W., Conetitutional History of Tennessee; Garrett and Goodpasture, History of Ten- nessee; Goodspeed Publishing Company's History of Tennessee. For text see Appendix 1, infra. 58 STATE CONSTITUTION-MAKING. Polk, the state stood in the very midst of the new democracy of the time. In the production of its great staple of pioneer days and ever afterward the state took the lead and when the agricultural census was taken in 1840, Tennessee proved to be the greatest corn-producing state. In the same year and in 1850 it was the fifth state in population. Between 1830 and 1870 the state grew from 081,904 to 1,258,520, about eighty-five per cent. Great schemes for internal improvements were undertaken. Early in the thirties railroad-building began to be agitated and, though little had been accomplished before 1850, the following decade witnessed the construction of upwards of 1,200 miles. Progress was by leaps and bounds and lacked in steadiness, — which, doubtless, would gradually have been achieved had not one of the economic foundations of the state's agricultural pros- perity — slavery — paved the way for secession and the d^b^cle of civil war. The convention of 1870 met as a result of a successful polit- , ¥• ^ i ical coup, made possible by dissensions in the ranks of the Ee- Antecedents r-: i- v °« S'i'iTP""''" publican Party. A split in its convention resulted in two can- or loiU. didates for governor in 1869 and the disfranchised Southerners, uniting in the support of the more conservative candidate, suc- ceeded, by irregular methods, in casting a large vote and in win- ning the election; they also elected a majority of both houses of the legislature, which submitted the question of calling a convention to an electorate composed of the adult male citizens of the state. The constitution of 1834 contained no provision for calling a constitutional convention. This action was taken, therefore, under authority of the plenary power of the legislature and of the constitutionally declared" right of the people to "alter, re- form, or abolish their government." Ample precedent for such action existed, if any were needed, in the manner of the adoption, in 1865, of two amendments forever abolishing slavery. Governor Johnson, addressing a convention assembled apparently to dis- cuss the calling of a constitutional convention, but which de- cided to submit amendments on its own account, is reported to have said, — "Const. 1834, I, 1. See Preamble to Const. 1870 STATE CONSTITUTION-MAKING. 59 The people have a right to amend, alter or abolish their government, as they may see fit. You are a part of the people. Any man may draw up resolutions, which when ratified by the people become law. This is Constitutional and consonant with the rights of popular government.' The amendments were ratified by the people and became a part of the constitution.^ A large majority of those voting favored the calling of the convention of 1870. It was, says Tennessee's constitutional historian,^ really a political expedient for the purpose of restoring the citizenship of the majority of the white voters of the State, and securing to them the control of affairs which justly belonged to them, and perhaps, also of giving them an opportunity to show that they accepted the results of the war. Beyond accomplishing permanently these results, the conven- tion as a whole did not care to proceed, and evidently thought that more settled times were at hand when a succeeding conven- tion could more eflBcaciously revise the constitution. The revised instrument, like its predecessor contains a pre- 55. amble setting forth the outline of the previous constitutional Features of Ngw enactments of the state, and eleven articles, the first of which constitution, is a declaration of rights, followed by a schedule of temporary adfjustments. It contains approximately twice as many words as the 1796 instrument, that is, about 14,000. Though much longer, it is, as has been intimated, very similar to the work of the conven- tion of 1834. There are few provisions which can be said to be the direct 56. . . Reflection of voluntary results of the economic developments of the period pre- Economic f r jr- Conditions. ceding its adoption. The old economic provisions were generally retained, with some extensions, as that the interest rate must not be more than ten per cent,^ and that laws for the creation of corporations must be general and alterable at will, provided such alteration does not disturb vested rights.^ There are also 'Fertig, J. W., The Secession and Reconstruction of Tennessee, 57. See Bedford v. Williams, 5 Cold. (Tenn.), 210. 'For text, see Appendix 1. "Caldwell, — op. cit. 296. iXI, 7. =XI, 8. 60 STATE CONSTITUTION-MAKING. provisions concerning the state finances and state aid to private undertakings, but these can be more appropriately mentioned Ge^Je'iai later. The property tax section^ making mandatory the taxa- Propeity Tax. tion of all property, merely puts into the constitution what statutes, gradually adding items to the list as the. variety of property increased, had already accomplished. Its all-inclusive- ness naturally led to certain specific exemptions, permissive save in the case of products of the soil in the hands of the producer and his immediate vendee,* and one thousand dollars' worth of personalty to each taxpayer. The latter provision and tne homestead exemption from sale under legal process, within cer- tain circumstances,^ may be evidenced as signs of growing social democracy, as may also the absolute prohibition of imprison- ment for debt in civil cases" and the provision ordering comfort- able prisons and humane treatment of prisoners.' The per- missive income tax on -stocks and bonds not taxed according to value was apparently intended to draw revenue from the holders of federal government bonds.^ The convention's first answer to the policy of the Unionist party is found in the fourth section of the Declaration of Eights, which adds to the prohibition of a religious test for eligibility to office that no political test "other than an oath to support the Constitution of the United States and of this Stale," shall be required for that purpose. This party had enforced a variety of oaths" not only for oflflce-holding but for voting, and had in that way maintained its power. Denial of the suffrage "to any person entitled thereto" was accordingly forbidden, save on con- viction of crime. ^^ To the Unionist policy of enforcing its decrees by a free use of military power it was replied 58. Ovei'throw of Recon- struction Measures. that martial law, In the sense of the unrestricted power of military officers, or others, to dispose of the persons, liberties, or property of the citizen, is inconsistent (with the principles of free government, and is not confided to any department of the government of this State.' «II, 28. *Thls must be extended to Include products of the soil of otlier states Bar- nail V. Memphis, 208 U. S., 113 (1908). »XI, 11. »I, 18. »I, 32. »II, 28. "Teste oaths aimed against Confederates, in, 5. n, 25. STATE CONSTITUTION-MAKING. 61 The possibility of the passage of laws by a minority of the . 59. ,.,. I..,.,, .. , Additional legislators was ehmmated by requiring therefor a maiority of checiis and Ha Ifl rippB all the members of each house.^ The quorum was changed from "two-thirds of each house" to "not less than two-thirds of all the members to which each house shall be entitled."' Further- more, a bill was not to become law until it should have received the governor's signature, or, in case of his veto, should have been passed again (by the same majority).* If the governor should neither sign nor veto it, the bill would become law after five days, Sundays excepted, unless the adjournment of the leg- islature should prevent its return. Joint resolutions, save con- cerning adjournments, must be similarly approved or repassed.^ The regular legislative session was effectually limited to seventy-five, and an extraordinary session to twenty, days, by denying the legislators their pay after those periods should have expired." The governor's power to enforce his will on the people was checked by providing that the militia shall not be called into service except In case of rebellion or invasion, and then only when the General Assembly shall declare by law that the public safety requires It.' The influx of negro voters into the electorate stimulated the convention to include the provisions that each voter shall give to the judges of election, where he offers to vote. 60. satisfactory evidence that he has paid the poll taxes assessed against gSaiiflcations him for such preceding period as the legislature shall prescribe, and at for Voters, such time as may be prescribed by law ; without which his vote cannot be received,' and that the General Assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of election and the purity of the ballot box." ^11, 18, !. e., all to which each house entitled. ^11. 11. The requirement of more than a majority to form a quorum makes possible such filibustering tactics as the breaking of the quorum by a minority whose members are willing to absent themselves from the state. *1I, 18 ; III, 18 ; i. e., same in practical effect. »III, 18. «II, 23. 'Ill, 5. »1V, 1. Hb. 62 STATE CONSTITUTION-MAKING. The legislature was declared to have power to grant relief from the penalties imposed upon any person disqualified from holding office by a court of impeachment." This provision was the direct result of the impeachment of the judge who had granted habeas corpus to the legislators who were arrested to secure a quorum for approving the fourteenth amendment to the federal constitution. The provision was added that there- after no convention or legislature should pass upon a federal amendment submitted after the election of its members.^ Schools receiving state aid were not to receive both white and colored pupils,^ and the inter-marriage of the races was pro- hibited.^ County offices created by the legislature must be filled by the people or the county court.* In addition to these varyingly partisan changes, a number Miscellaneous '^^ minor alterations resulted from the development of the state Piovisiona. and Its experience since 1834, or were made mandatory by the Constitution of the United States. Among them are the substitution of "every male person"' for "every free white man" in detailing the qualifications for the suffrage; the provisions, which had already been placed in the Constitution by amendment in 1865, that slavery and involuntary servitude, except as a punisbment for crime, whereof tlie party shall have been duly convicted, are forever prohibited in this State ;° and that the General Assembly shall make no law recognizing the right of prop- erty in man ;' the sections forbidding state aid to private companies and mu- nicipalities, state ownership of banks, or the stock of private companies or municipalities,' and the issuance of state bonds to any railroad defaulting in its interest payments on bonds previ- ously loaned or having absolutely disposed of any of the same i» v, 4. "IV, 1. 'II, 32. "I, 83. 'XI, 12. 'I, 34. »XI, 14. 'II, 31. *XI, 17. STATE CONSTITUTION-MAKING. 63 for less than par.^ The state debt was the chief political question for the decade and more following 1870.^ The legislature is expressly authorized "to regulate the wear- ing of arms with a view to prevent crime."^ To the passage of special legislation no additional restric- tions were imposed except to prohibit the creation of corpora- tions by private act.^ Experience with acts of the legislature embracing a most heterogeneous subject matter led to the pro- vision that no bill shall embrace more than one subject, which subject shall be expressed in the title.* The comptroller is made a constitutional ofl&cer;^ the cir- cuit and chancery courts are made constitutional courts," and the election of the attorney general is taken from the people and vested in the judges of the Supreme Court,' the places of hold- ing which are specified.^ The authorization of game and fish laws was not considered beneath the dignity of the state's organic law." Keligious liberty is given an additional safeguard in pro- hibiting the requirement of public service in time of peace from any person on the day set apart for rest by his religion.' Finally, there was inserted a clause permitting the legisla- ture at its discretion, to submit to the electorate the question of holding a constitutional convention, to be called if a majority of the votes should be favorable.- The convention of 1870 accomplished its purpose. It com- jj^^f^^^g ^j pleted the work of wresting from a minority the control of the ^^^^«°*'°"'^ state government and restoring to the former Confederates their rightful influence as citizens of the state. In doing this, how- ever, it framed an instrument the effect of which was distinctly =11, 33. 'The question of the state debt is well treated by Caldwell, op. cit. Chap. 10, and by W. A. Scott, Repudiation of the State Debts, pp. 131ff. n, 26. 'XI, 8. Does not apply to municipal corporations ; Williama v. Nashville, 89 Tenn., 487 (1890), and other cases. XI, 15. "Xi, 3. 64 STATE CONSTITUTION-MAKING. reactionary. Reaction against the arbitrary tactics of the re- construction governments was natural. But that additional checks and balances should have been introduced into the gov- ernmental organization just at the time when railroads and other corporations were beginning to become so powerful as to call for state administrative control, when the number and com- plexity of governmental functions in other directions was on the eve of substantial increase and when responsible financial man- agement was becoming rapidly more imperative, impresses one as peculiarly unfortunate. Experience has conclusively proven that a government planned with a view to inaction always plays into the hands of reactionary interests, whilst a government that can operate eflflciently and that is given clear-cut leadership most often represents the public at large and accomplishes the popular will. By the constitution of 1870 the governor — the natural leader in state government — was left with diminished powers^ and the powers of the legislature were made subject to increased limi- tations,* yet no instrument was provided whereby the people might have any additional means of self-expression.' The key- note of the convention's attitude toward the task of constitution- making, it should, however, in justice be noted, was expressed by one of its most distinguished members when he said, Let us be careful ; let us do no more than is absolutely necessary. Id ten years from now all tbis must be done again.' The constitution of Tennessee has remained without formal 63. alteration since 1870 — a fact which, when considered in the light Development »,,,,, .,,,., of the State ot the State's very considerable economic changes, betokens a Since 1870. /, . , , „,.,., . "" //high degree of political stagnation — primarily the result, most *The convention "preceded to curtail the powers of Governor, until now it mates very little difference who is Governor, so long as he is a good-looking fel- low, with good manners, and can speak at coiintrv fairs and school commence- ments. He is the most harmless citizen of the State." — E. N. Hood, Proceed- ings of the Bar Association of Tennessee. VI. 184 (1887). *Tbe veto, to be overruled by practically the same vote that passed the bill, was a check upon legislation rather than a means of strengthening the governor. "Concerning the work of the convention, Caldwell says, "the changes and additions are mainly critical or explanatory notes, Inserted In the text, or pro- visions which are too much dignified by places in the organic law, and should be relegated to their proper rank as statutes." — Proceedings of the Bar Asso- ciation of Tennessee. XIII, 87 (1894). "Judge A. 0. P. Nicholson. Quoted by Caldwell, Const. Hist. Tenn., 800. STATE CONSTITUTION-MAKING. 65 probably, though also, perhaps, an accompanying cause, of the failure of Tennesseans to keep pace with the general progress of the country as a whole. In population, for instance, Ten- nessee has increased from 1,258,520 in 1870 to 2,184,789 in 1910 — seventy-eight per cent., — but the population of the nation as a whole has much more than doubled, and in the production of wealth the divergence has been greater still.' Meantime, how- ever, the absolute growth of the state has been very considerable and its increasingly complex life renders more and more palpable the inadequacy of the government dictated by its constitution. Agriculture, though still predominant, has become relatively less important.^ The value of farm property increased between 1870 and 1910 from 227 to 613 millions of dollars," about 170 per cent., but the cajiital emploj-ed in manufacturing establish- ments increased from 16 to 168 millions, or 950 per cent.,^ and that in mining from one to more than thirty-three millions — 3,200 per cent. At the same time there has been of late a cen- tering of population in towns and a general tendency on the part of agricultural counties to decline in rural population. These brief illustrations fairly describe the change that has been taking place. Meanwhile efforts have been made to change the state's 64. Attempts to organic law. The legislature in 1896^ passed an act for sub- Revise the Constitution. mitting to the people the question of calling a convention, which was later repealed and another act substituted for it^ — but the popular vote was a decisive negative. In 1904* seven amend- ments submitted by the legislature were likewise rejected. They proposed (1) a four-year term for the governor, (2) popular election of the secretary of state and (3) treasurer and comp- 'In 1840 when Tennessee was the first corn producing state, 4,873,584 bushels were raised ; in 1870 it stood seventh, though producing 41,343,614 ; in 1909 It stood twelfth, though producing 67,682,489 bushels. 'Concerning conditions In 1870, see Killebrew, J. B., Resources of Tennessee (1874). 72.6% of those gainfully employed were agriculturalists. See also Reports of Ninth Census. 'Implements and machinery 8 to 21 millions. >It Is worthy of note that in 1870 more than half the horsepower employed was developed by water. ''Acts of Forty-ninth General Assembly, 2nd extra session, ch. 1. Chapter 2 provided for the election of delegates. 'Acts of 1897, ch. 11 ; ch. 12 provided for the election of delegates. »Acts of 1903, ch. 532. For constitutional amendments proposed by preced- ing legislature see Acts of 1901, ch. 73, 74, 79 ; Senate Joint Resolutions 12 and 50 ; House Joint Resolution 61, ch. 80, and Senate Joint Resolution 51 pro- posed amendments which were not concurred in by the 1903 legislature. 66 STATE CONSTITUTION-MAKING. troller, with an increase in the terms of the latter from two to four years; (4) increasing the terms of certain county oflScers from two to four years and making them ineligible to succeed themselves; (5) that the legislature should have power to pass laws for the establishment and maintenance of public roads, for enclosing lands and lots and for the protection and control of domestic animals and make them applicable to particular counties; (6) that localities, by two-thirds vote of their legis- lative bodies should have power to exempt new manufacturing enterprises for not exceeding ten years and, finally, (7) that local indebtedness should be limited to ten per cent, of the aver- age assessed value of their taxable property for the preceding period of ten years. Popular interest in constitutional problems, both in 1897 and in 1904, was insuflicient to overcome the purely selfish but always to be expected opposition of the oflSce holders. In 1897 the Eepublican Party, chiefly from narrowly partisan motives, joined with the Democratic office holders to defeat the conven- tion. Consideration of the proposed amendments of 1904 shows that, however desirable some of them may have been, they prom- ised no change that would really solve any governmental prob- lem. The needed administrative reorganization and centraliza- tion of responsibility could not have been accomplished merely by longer terms of office and certainly not by increasing the number of popularly elected officials. It is probable that more local self-government was wanted rather than expressly author- ized legislative control of fence and stock laws. The propriety of tax exemption in order to attract new industries may be granted and the limitation of indebtedness' insisted upon, but it must be admitted that neither of these proposals is of a kind to evoke widespread popular enthusiasm. In 1915° enabling acts for calling a convention were again passed by the legislature. The people will vote upon the matter in August, 1916. "Acts of 1915, cli. 110 and 111. For text, see, infra. Appendix 3. PART II. CURRENT THOUGHT AND ACTION UPON CONSTITUTIONAL PROBLEMS. PART II CUEEENT THOUGHT AND ACTION UPON CONSTITUTIONAL PEOBLEMS. CHAPTER V. What Constitutions Contain.^ The forty-eight state constitutions, if published together, 65. • *' . , . 'Nature and would form a volume many tames the size of the present one. scope of ^ Chapter 5. They contain in the aggregate something like one million words and vary in length from six thousand words as exemplified by the Ehode Island constitution of 1842^ to the fifty thousand words of the instrument adopted in Oklahoma sixty-five years later.^ Obviously it is to be expected that they will display a widely varying range of contents, and that they cannot be easily described as a whole. Their more interesting and important topics will require treatment in separate chapters, but intro- ductory to these discussions brief account may appropriately be taken of the historical development and present tendencies of the state constitutions, of their general range of subject mat- ter and of those portions of them which are of comparatively slight importance or which at present are not the subject of suflflcient controversy to make particular exposition urgent. It seems well, furthermore, to describe entire one illustrative con- iQeneral References : Dealey, J. Q., Cfrowth of American State Constitutions ; Stimson, F. J., Federal and State Constitutions in the United States; Willoughby, W. W., The American Constitutional System; Dodd, W. F., The Revision and Amendment of State Constitutions; Beard, Clias. A., American Government and Politics; Wilson, Woodrow, The State. The Conn, const, of 1818, as amended, contains about 10,000 words. Tlie New Jersey constitution of 1844 is about the same length. sThe most recent and second longest of the state constitutions is that of La. (1913). It was adopted in convention and not submitted to the p'eople. (69) 70 STATE CONSTITUTION-MAKING. 66. Development and Group- ing of Con- stitutions. stitution, and for this purpose that of Ohio* has been chosen because among the constitutions of the older and larger com- monwealths it displays most clearly the leading modem ten- dencies in constitution-making. The rejected work of the most recent constitutional convention, that of New York in 1915, will also be discussed for similar reasons. When the states first became free commonwealths and began to frame constitutions for their government, conditions were simple and needs that could not be fulfilled by individual en- deavor were few ; consequently no elaboration was required and the early instruments undertook almost nothing save a state- ment of their makers' ideals of free government, especially what ought not to be done under a free government, and provisions indicating what the governmental framework should be.'* As American life became more developed and complex, constitu- tions naturally contained more provisions and were more and more altered to meet the improvements suggested by growth and experience. Nevertheless several of those whose size and general content bear the impress of colonial times remain in force today and form a distinct group among the state constitu- tions. Massachusetts, indeed, still retains the constitution adopted in 1780, though with numerous amendments." A second fairly distinct group of constitutions comprises those adopted mainly during the second half of the nineteenth century. They illustrate the intennediate development — in- creasing attention to detail, new restrictions, both positive and negative, upon the legislature and more definite governmental organization.' The second quarter of the ninteeenth century had witnessed many remarkable changes in the state constitu- tions. The democracy of the country asserted itself; property qualifications upon voting and oflace-holddng were swept aside and the number of elective oflficers was greatly increased. The augmented electorates were distrustful of the governments and 'The Ohio constitution of 1S51 was extensively amended in 1912 Mlchisan (1908) is also a good example. "The development of the state constitutions will be discussed in chapter 8 from the point of view of governmental organization. »In this group, also, should be placed Conn. (1818) ; R I. (1842> ■ N H (1792). See Beard, op. eit., 445-6. ' ' 'e. g., la. (1867); 111. (1870); Ind. (1851); Ky. (1891); Minn. (1857) • Mo. (1875) ; Neb. (1875) ; N. t. (1894) ; Pa. (1873) ; Teni. (1870) ;Wis: ( 1848) . STATE CONSTITUTION-MAKING. 71 eager to assume more functions themselves — a tendency which continues today in the movement for the initiative and referen- dum. A third group of constitutions is found in those adopted in several of the southern states near the close of the last century, characterized by ingenius devices for restricting negro suffrage together with a number of rather eccentric details, of various kinds,* and occasional carefully drawn statute-like clauses" for accomplishing purposes not usually deemed of fundamental nature.^ This latter characteristic is the distinguishing feature of the fourth and last group that may be set apart among the state constitutions.^ They are found among the newer states in the west, beginning with the California constitution of 1879,' and they exhibit pa/r excellence the determination of the people to restrict the powers and functions of the legislature. It will be remembered that the chief function of a state con- j^gJening stitution is to limit the otherwise plenary power of the state gj.^^^^^^''"'^ legislature and that in this respect are the state constitutions g°°|"*^;;j most fundamentally different from the constitution of the United statutes. States, which is a grant of power beyond the terms of which Congress has no authority to proceed. This function of the state constitutions is carried so far in some of these newer ones, however, as to leave little residuary authority. Furthermore, they lay down so many mandates that it is diflflcult for the courts to determine whether their makers intended the expres- sion of the particular powers to. exclude others, not expressed.* Numrous lengthy and detailed provisions^ make these consti- tutions resemble codes of statutes and., of course tend to lessen the difference between the constitution and ordinary laws — a difference which is being further obliterated by the introduction of the initiative and referendum — already adopted by about one- third of the states.' »e. g.. The Miss, method of electing state officers. ^€. g.. La. Juvenile court clause. >e. g., Va. (1902) ; S. C. (1898) ; Ala. (1901) ; Miss. (1890) ; La. (1913). 2Many of them do not fall clearly in any one of the groups, but partake of the characteristics of two or more of them, — e. rj., Ohio (1851, extensively amended, 1912). =e. g., Okla. (1907) ; Ore. (1857, amended 1902, 1906, 1908). The Okla. constitution is the most famous of this group. *Does the doctrine Expreasio unius eat exclusio alterius apply? ■^Concerning public service corporations, (or example. Hnfra, ch. 11. 72 STATE CONSTITUTION-MAKING. It has been the custom of political writers to decry this ten- dency. For example, Woodrow Wilson, in The State,'' after remarking that "one of the most characteristic circumstances connected with our state law is the threatened loss of all real distinction between constitutional and ordinary law," asserts that the objections to the practice are as obvious as they are weighty. Gen- eral outlines of organization, such as the Constitution of the United States contains, may be made to stand without essential alteration for long periods together ; but, in proportion as constitutions make provi- sion for interests whose aspects mus.t change from time to time with changing circumstance, they enter the domain of such law as must be subject to constant modification and adaptation. Not only must the dis- tinctions between constitutiona/l and ordinary law hitherto recognized and valued tend to be fatally obscured, but the much to be desired stability of constitutional provisions must in great part be sacrificed. Those constitutions which contain the largest amount of extraneous matter, which does not concern at all the structure or functions of gov- ernment, but only private or particular interests, must of course, how- ever carefully drawn, prove subject to most frequent change. In some of our states, accordingly, constitutions have been as often changed as important statutes. The danger is that constitution-making will be- come with us only a cumbrous mode of legislation. To so careful an observer as Professor Dodd,' however, this danger furnishes little occasion for alarm. "A state constitu- tion," he reminds us, "is an instrument, a means to an end, and is of no importance for its own sake alone."" It may be true that the national constitution should be primarily an instrument embodying fundamental provisions and defining the respect- ive powers of the state and national governments. Yet this is not be- cause the instrument is called a constitution ; it is because the success- ful operation of a federal system requires some fairly permanent de- marcation of national and state powers. There is no Inherent reason why an instrument of state or national government should contain only provisions of fundamental law. A constitution must be judged not by its name but by the function which it has to perform. 'pp. 474-5 (1906 Ed.). ^Functions of a State Constitution, XXX Political Science Quarterly 201 (215, 221)— June, 1915. "Compare Wilson, op. cit., 636 : "Society, it must always be remembered, is vastly bigger and more important than its instrument, Government. Gov- ernment should serve Society, by no means rule or dominate it. Government should not be made an end in Itself ; it is a means only,- — a means to be freely adapted to advance the best interests of the social organism. The State exists for the sake of Society, not Society for the sake of the State." STATE CONSTITUTION-MAKING. 73 Consequently even with the tendencies such as they now are, the state constitution still has a function distinct from that of statute. The constitution ■can never contain the great mass of general legislation of the state, and should deal with matters legislative in character only when, and in so far as, such matters are relatively more important. State constitutions contain and will continue to contain much of purely legislative detail, but such detail should, and is likely to, remain incidental to the main function of the constitution as an instrument organizing a state gev- ernment and determining its powers. And even with the larger func- tion of state constitutions, the constitution itself need not be materially lengthened. . . . Many provisions in state constitutions have been in- serted to meet conditions that no longer exist. Such provisions tend to persist, and the constitution lengthens by a process of cumulation. If constitution makers will winnow out provisions no longer desirable, they need not lengthen the constitution, even though at the same time they place in it many new provisions not properly fundamental in char- acter. According to a well-known writer upon constitutional sub- ^ 68. ° ^ Essential iects^ the essential elements of a written constitution such as^^iements •" of a Con- is found in the states of the Union are (1) a statement of the stitution. organization and functions of the political state, including the electorate, the public offlcials and the character of the laws, if any, to be enacted by the electorate ; (2) the organization and functions of the government, (3) the restrictions upon the gov- ernment, especially the Bill of Rights, and (4) the mode of amending the constitution. State fundamental law, however, includes much besides these essentials.^ Taking as a whole the constitutions as they exist today, the Tht^iypicai typical one is found to contain about 22,000 words' and may be constitution. described as beginning with a preamble, the words of which are, iHarry Pratt Judson, in OyclopecHa of American Government, I, 431, seq. See, also, his Essentials of a Written Constitution, Univ. of Chicago decennial publications, Vol. IV. ^Prof Beard (op. cit., 447) classifies the contents of the state constitutions into six parts, — (1) bill of rights; (2) sections providing framework of gov- ernment, central and local and the fundamental limitations of each branch ; (3) sections dealing with state finances, principally to fix debt limits and pre- • vent failure to meet obligations ; (4) control of economic interests, such as railroads, insurance companies, banking and labor; (5) education and social ■welfare ; (6) amending clause. Judge Cooley's classification {Constitutional Law 385) is (1) description of the frame of government; (2) generally the qualifications upon the right of suffrage; (3) the usual checks and balances of republican government, recognizing the three separate departments ; (4) some recognition of local self-government; (5) declaration of rights for the pro- tection of individuals and minorities — general principles of republican govern- ment ; fundamental rights of citizens ; impartial trial and the protection of life, liberty and property. 'This is the average length. 74 STATE CONSTITUTION-MAKING. -, grateful to Almighty God for our We, the people of the State of - freedom, to secure its blessings, and promote our common welfare, do- establish this Constitution.* 70. Schemes of Subdivision. 71. The Declarations of Eights. Next in order follow perhaps seventeen articles/ subdivided into brief sections and entitled (1) a declaration of rights; (2) the distribution of the powers of government; (3) the legisla- tive department ; (4) the executive department ; (5) the judicial department; (6) impeachment and removal from office; (7) suffrage and elections; (8) the militia; (9) finance and taxa- tion; (10) state institutions and public works; (11) social rights;" (12) education; (13) corporations; (14) cities; (15) counties; (16) miscellaneous, and (17) amending the constitu- tion. Finally there is a schedule, prescribing how the consti- tution shall go into operation and relating the old order with the new. The method of subdivision is itself interesting. In most of the constitutions the sections or minor parts are numbered with reference only to the article in which they are contained. Sev- eral of the newer ones, however, number their smallest subdivi- sions continuously from the beginning of the instrument, thus avoiding the necessity of naming the larger divisions in cita- tions. Kentucky and Louisiana are divided into brief num- bered paragraphs, with nothing resembling the articles of most of the constitutions. Several of the early constitutions have very complex arrangements of subject matter. That of Massa- chusetts, for instance, is contained in two parts, the latter of which is divided into chapters, sections and brief paragraph articles. Needless to say the headings of articles and other divisions form only the roughest sort of index to their actual contents. Every constitution has its bill or declaration of rights, usu- ally forming its first article, though in a few instances to be 'This or a similar preamble, having as its leading thought that of gratitude for freedom and desire to perpetuate it is found in a majority of the constitu- tions. Occasionally the preamble is not placed at the beginning. That of Massachusetts is perhaps the most interesting (see also the opening words of Part II). Tenn. and Va. describe in their preambles the legal antecedents of their constitutional conventions. Vt. and W. Va. have no preambles. "The average number of articles in the 43 constitutions having a fairly uni- form method of subdivision. »No such title Is actually found in any constitution, but there exists a variety of articles on eminent domain, water rights, homestead exemptions (social wel- fare as opposed to enforcement of individual contract), etc., which may be so termed. STATE CONSTITUTION-MAKING. 75 found second or even well toward the middle of the instru- ment. It has always been considered of prime importance and, indeed, several states'' divide their constitutions into two "parts," the bill of rights and the frame of government, while several others have somewhat similar classifications. In con- tent the declarations of rights, while of like general purport, vary considerably in detail, as well as in number of provisions. Less than twenty sections may be regarded as exceptional ; the , upward limit is forty-five.' About half of the declarations begin by enumerating certain "inalienable rights," inherent in all persons. For example, the constitution of Pennsylvania" declares that all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defend- ing life and liberty, of acquiring, possessing and protecting prop- erty and reputation, and of pursuing their own happiness ; and Wyoming,^ after asserting that, in their inherent right to life, liberty and the pursuit of happiness, all members of the iuman race are equal, provides that all laws affecting the political rights and privileges of its citizens shall be with- out distinction of race, color, sex, or any circumstance or condition what- soever other than individual Incompetency, or unworthiness duly ascer- tained by a court of comjvetent jurisdiction.^ Among the other rights regularly declared to exist is that of popular assembly for the purpose of instruction of represent- atives, petition for redress of grievance, or otherwise to consult for the common good. One state, however, cautiously adds that "secret political societies are dangerous to the liberties of a free people, and should not be tolerated."^ The right to bear arms is usually asserted, but a number of states expressly stipulate that this shall not authorize the carry- ing of concealed weapons. The statement that 'Mass., N. H., E. I., Vt. ^I, 2. sMaryland. ^l, 3. =1 1. "N. C, I, 25. 76 STATE dONSTITUTION-MAKING. standing armies, in time of peace, are dangerous to liberty, and shall not be kept up ; and the military shall be in strict subordination to the civil power usually follows ;* and two states^ declare that the right to bear arms shall not authorize individuals or corporations to organize or employ an armed body of men. Persons conscientiously op- posed to bearing arms are sometimes excused from doing so in time of peace, on condition, a few constitutions add, that they shall pay an equivalent. The right of trial by jury is declared to be inviolate by a large majority of the states — in criminal cases in all of them — but various exceptions, for instance that it may be dispensed with in petty cases, that the common law provision for twelve men need not be followed or that unanimity is not necessary for reaching a verdict, are often found.^ Fourteen states re- quire that in criminal cases the jury must be of the county or district in which the offence was committed.^ All of the con- stitutions provide for the w'rit of habeas corpus, subject, as a rule, to suspension when, in case of rebellion or invasion, the safety of the state may so require. The right of all persons accused to be bailable by suflScient sureties is provided for almost invariably. Capital offenees, "where the proof is evident and the presumption great" are excepted, but excessive bail must not be required, and "cruel and unusual"' punishments are forbidden. As a rule accused persons cannot be tried except on indictment or presentment of a grand jury, but in more than a dozen states trial after in- formation to the public prosecutor is also allowed.* About half the bills of rights forbid banishment from the state or corruption of blood as a punishment for crime ; severaP add "whipping" to the prohibited list and most of the states also prohibit "unreasonable searches and seizures." E.r post facto laws are generally forbidden. *New York Is one of the states which does not cbntaln the last clause. The failure of the 1915 convention to insert it was urged by former Chief Justice CuUen and others as a reason for the defeat of its proposals at the polls. "Wash., I, 24 ; Ariz., II, 26. 'e. g., Va., I, 8; Mich., V, 27; K.v.. 248. 'Pa. requires that it he frota the "vlcinlt.v" ; Tenn. from the county. See, also, Vt., I, 10. «e. 0; Cal., I, 8. »e. g.. Ga., I, 7. STATE CONSTITUTION-MAKING. 77 Imprisonment for debt is frequently prohibited, though ex- ceptions are common, especially in case of fraud on the part of the debtor. About two-thirds of the states provide that the courts shall be open to all, that there shall be a remedy for any injury done a person and that justice shall be administered "without denial or delay." The prohibition of hereditary privileges is still found fre- quently. One s.tate,^ in a more modern spirit, provides "that no office shall be created, the appointment to which shall be for a longer time than during good behavior." Clauses protecting the inviolability of private property are always found. The famous expression that no person shall be deprived of life, liberty or property without due process of law^ occurs in a majority of the constitutions and the provision that private property shall not be taken without compensation is all but universal. More than three-fourths of the states forbid their legislatures to make any law impairing the obligation of a con- tract.^ The clause, born of pre-revolutionary days, that no soldier shall in time of peace, be quartered in any house, witbout tlie consent of the owner, nor in time of war, except in the manner pre- scribed by law, continues in force in a majority of the states. Slavery and in- voluntary servitude, except as a punishment for crime, are for- bidden in nearly half of them.* Freedom in religious matters and freedom of speech and of the press are usually provided for, but the latter are limited by responsibility for abuse and the former by a variety of restrictions — especially in the older New England constitutions. Perhaps the most interesting as well as one of the longest of the clauses concerning religion is that of Washington: — ^ lAla., I, 29. ^"Law of the land" in other constitutions means the same thing as "due process of law." 'In Mo. (II, 6) a person must he held liable upon a voluntary contract to attend or support a place of worship. 'Vt. (I, 1) has the unique provisions that no male over 21 or female over 18 ought to be holden by law to serve any person as slave unless bound by own consent after arriving at such age, or bound by law for payment of debts, damages, lines, costs or the like. °I, H, amend. 4. 78 STATE CONSTITUTION-MAKING. Absolute freedom of conscience in all matters of religious sentiment, belief and worship shall be guaranteed to every individual, and no one shall be molested or be disturbed in person or property on account of religion ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices incon- sistent with the peace and safety of the state. No public money or property shall be appropriated or applied to any religious worship, ex- ercise or instruction, or support of any religious establishment. Pro- vided, however, That this article shall not be so construed as to forbid the employment hy the state of a chaplain for the state penitentiary, and for such of the state reformatories as in the discretion of the legisla- ture may seem justified. No religious qualification shall be required for any public office or employment, nor shall any person be incompe- tent as a witness or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to effect the weight of his testimony. In conclusion, all political power is generally declared to be inherent ii the people, who can, therefore, it is often added, alter or abolish the existing government at will. More than one- third of the states expressly declare that their enumerations of rights shall not be construed to impair or deny others retained by the people, in whom remain all powers not delegated by the constitution. Succeeding chapters discuss the subjects of the articles fol- Dillussion lowing the declaration of rights in the typical constitution out- conte°nt?^ lined above, with the exception of the militia, state institutions, education, corporations and some of the "social rights." Varied and elaborate articles governing the militia have come down from early times and are found in many of the con- stitutions. Most of them provide that it shall contain all able- bodied male citizens within certain ages, but those religiously opposed to bearing arms are commonly exempted. The organiza- tion of the militia is often minutely prescribed. State institutions, particularly those established for char- itable and penal purposes, are the subject of much minute con- stitutional regulation. Their administration and officers are often dealt with and methods for their financial control pre- scribed. Public property, ranging from obligations owned by the state to public lands, is frequently protected by the consti- tutions from alienation or misuse. State ownership of certain STATE CONSTITUTION-MAKING. 79 kinds of property is sometimes forbidden. A few states, how- ever, expressly authorize their governments to engage in indus- trial pursuits or business enterprise." Educational institutions are recognized in most of the con- stitutions and usually the establishment and support of com- mon schools' — and sometimes of colleges or universities — is made mandatory upon the legislature. Occasionally such matters of detail as the age limits of persons entitled to free education and even subjects of instruction'' or methods of teaching are speci- fied. Compulsory education of children within certain ages is now and then authorized* or prescribed." The protection of school funds and their sources, the regulation of school districts and the administration of the school system lare the subjects of most extensive constitutional treatment. Numerous detailed directions concerning the organization of business corporations, their regulation by the state and even their private management, occur. They must as a rule be char- tered under general laws only. The most notable constitutional clauses, however, are those governing public service companies. A number of states, unwilling to trust their legislatures with the creation — and possible abolition-^of public service commis- sions, have provided for them in their constitutions and have minutely set forth their powers and functions.^ In their anxiety to secure to individuals their private ^'rights" constitution-makers have frequently set up standards of personal liberty and governmental non-interference that have proved inconvenient or intolerable under the more complex con- ditions that have later developed. Chief among these is the famous "due process" clause already mentioned.^ In more re- cent years, as a result, there has grown up a body of constitu- tional provisions which seek to guard the welfare of society as a whole, or of considerable portions of the people. They are 'e. g., Ariz., II, 34 ; N. D., XIV (Amend. 1914) ; Okla., II, 31. 'e. g., Okla. (XIII, 7) requires the elements of agriculture, horticulture, stock-raising and domestic science in the common schools. «Colo., IX, 11; Del., X, 1; Ida., IX, 9; N. C, IX, 15; Nev., XI, 2; Va.. IX, 138 ; Wyo., VII, 9. The legislature may, of course, without constltutiona! authorization, make school attendance compulsory. °N. M., XTT, 5 ; OMa., XIII, 4. •e. g., Va., XII. ^See, infra, ch. 17 and ch. 20. 80 STATE CONSTITUTION-MAKING. usually the result of economic needs, like the clauses concern- ing irrigation in some of the western constitutions, or of social or industrial conditions, like the provisions authorizing work- men's compensation and other protective laws.^ The limitation of the liability of debtors, especially the provision that their homes may not be taken by forced sale, is perhaps the most fre- quent of such provisions. Though incidentally they secure "rights" to individuals their main purpose is that of social wel- fare. Scattered through the constitutions is a very great variety 73. of miscellaneous provisions of all kinds. Some of them are Provisions""^ obsolete — as the occasional disqualiflation for voting based on race or color/ — others pertain to the particular state's peculiar needs or situation — as the articles relating to harbors and navi- gation in some of the seaboard states. Frequently the boun- daries of the state are set forth in its constitution. A careful study of the constitutions would reveal many provisions reflecting the states' prevailing economic activities and interests. The relations of the various parts of a constitution as well as their arrangement are illustrated by the following descrip- tion of a single typical instrument, that of Ohio. The constitution of 1851, which still remains in force in 74. Ohio,'^ contained, prior to its revision in 1912, the provision that Constitution proposed constitutional amendments or proposals for calling a convention must receive, in order to make them effective, a majority of all the votes cast at a legislative election. Since a large proportion of any electorate, while voting for the candi- date of their choice for oflQce, invariably remain silent upon constitutional questions, such a provision makes constitutional change nearly impossible in the absence of extraordinary methods. Accordingly, in 1910, the legislature of Ohio passed an act permitting political parties to make the question of calling a constitutional convention a part of their tickets. Consequently evei-y voter who marked his ballot so as to vote the straight 'See eh. 17. 'e. g.. Ore., II, 6 (Negroes, Chinese). "The work of the convention of 1873-4 was rejected at the polls. of Ohio. STATE CONSTITUTION-MAKING. 81 party ticket would ipso facto vote upon the calling of a con- vention. The leading parties declared in favor of the conven- tion, and it was called by an almost unanimous vote." The convention met early in 1912 and at a special election held September 8, submitted to the voters forty-two separate proposals' for amending the constitution. Thirty-four were ac- cepted and the constitution was far more radically changed by them than some so-called new constitutions have differed from their predecessors. Of the eight rejected proposals, woman suffrage, abolition of capital punishment and the issuance of bonds for the construc- tion of a state roads system were the most noteworthy.' The constitution as it at present stands, including the sched- ules, is an instrument of forty-two closely printed octavo pages, containing approximately 20,000 words. It is divided into eighteen articles following a brief preamble. The first article is the Bill of Rights, in twenty sections, em- bracing for the most part the subjects commonly found in the constitutional enumerations. Amendments of 1912 authorize verdicts by three-fourths of the jury in civil cases," laws per- mitting suits against the state,^ trial of misdemeanors without presentment or indictment of a graiid jury, regulation by law of the number of persons constituting a grand jury and of the number whose concurrence is necessary to indict, and the use of depositions in criminal cases. The accused is given the right to be present when the depositions are taken and counsel may comment upon the fact that a person accused fails to testify at the trial.^ Without pausing to deal with any distribution of the several powers of government, the second article proceeds at once to declare the "legislative power" vested in a "general assembly "Patterson, I. F., Constitution of Ohio and Allied Documents. See Laws of Ohio, 1910, pp. 169 and 18 ; see, also, act of May 31, 1911. Laws of Ohio. 1902, p. 352. in force until 1908, allowed political parties to make an amend- ment part of their tickets. 'Separate in accordance with the requirements of legislative enactment. See Tennessee note to ch. 22. 'For a most interesting analysis of the vote, see Mr, E. B. Cushman's article. Voting Organic Laws, Political Science Quarterly, XXVIII, 20T (June, 1013). »I, 5. n, 16. ^I, 10. 6 82 STATE CONSTITUTION-MAKING. consisting of a senate and a house of representatives," imme- diately adding but the people reserve to themselves the power to propose to the gen- eral assembly laws and amendments to the constitution, and to adopt or reject the same a,t the polls on a referendum vote as hereinafter pro- vided. Elaborate provisions are set forth for popular initiative in law- making and for popular demand for a referendum on laws made by legislatures to extend, with certain exceptions, to "any law, section of any law, or any item in any law appropriating money."^ The initiative applies both to constitutional amendments and ordinary statutes. For the former a petition, signed by ten per cent, of the electors* and containing the full text of the proposed amendment, is filed with the secretary of state ninety days "before the next regular election and at that time submitted to the electors.' For the latter a petition signed by three per cent, of the electors and reciting the text in full is filed with the secretary of state at least ten days before a session of the general assembly convenes, to be transmitted to the general assembly. If such proposed law is passed or amended by the general assembly it is subject to referendum just as in the case of other statutes. If not passed, or if amended, or if no action is taken on it for four months, an additional three per cent, of the electors may procure its submission to popular vote at the next regular election.' In case a proposal so submitted is adopted Iby the electorate, an act of the legislature adopting 'II, 1. The popular legislative powers are in addition to those of the legis- lature and constitutional limitations apply equally to both. The initiative and referendum provisions are "1012 amendments. *Such petitions must be headed "Amendment to the Constitution Proposed by Initiative Petition to be Submitted Directly to Electors." =11, la. °The supplementary petition "must be signed and filed with the secretary of state within ninety days after the proposed law shall have been rejected by the general assembly or after the expiration of such term of four months, if no action has been taken thereon, or after the law as passed by the general assem- bly shall have been filed by the governor in the office of the secretarv of state. The proposed law shall be submitted In the form demanded by such supple- mentary petition, which form shall be either as first petitioned for or with any amendment or amendments which may have been incorporated therein by either branch or by both branches of the general assembly." Such petitions "shall have printed across the top thereof, in case of proposed laws : 'Law Proposed by Initiative Petition First to be Submitted to the General Assembly.' " (II, lb.) STATK CONSTITUTION-MAKING. 83 the original initiative proposal in amended form becomes void.'^ Laws passed by the general assembly go into effect after ninety days from the time they are filed by the governor with the secretary of state, unless, meantime, a petition, signed by six per cent, of the electors shall order a submission to the electorate at the next regular election at least sixty days after the petition is filed, and the law or part of the law must await the verdict of the voters before going into effect.' Initiative and referendum upon all subjects which the leg- islature may authorize them to control is reserved for munici- palities." The legislature is elected biennially and its members hold office from the first of January following the November election.^ To the ordinary legislative functions and duties, is expressly added the power to obtain, through committees or otherwise, information affecting legis- lative action under consideration or in contemplation, or with reference to any alleged breach of its privileges or misconduct of its members, and to that end to enforce the attendance and testimony of witnesses, and the production of books and papers.^ 'If approved by a majority of those voting thereon, popularly initiated stat- utes and amendments take effect thirty days after the election. In case con- flicting proposals are submitted the one receiving the greater number of affirma- tive votes prevails. Statutes initiated by the petition of voters are not sub- ject to veto by the governor (II, lb). The Initiative and referendum must not be used "to pass a law authorizing any classification of property for the purpose of levying different rates of taxa- tion thereon or of authorizing the levy of any single tax on land or land values or land sites at a higher rate or by a different rule than is or may b.e applied to improvements thereon or to personal property" (II, le). "Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety," setting forth the reasons for the emergency (in one section of the law, which section shall be passed only upon' a yea and nay vote, upon a separate roll call thereon), and passed upon a yea and nay vote by two-thirds of each branch of the legislature, are not subject to the referendum, and go into effect Immediately (II, Id). *II, Ic. Eegulations governing the exercise of the initiative and referendum are set forth in great detail. It is provided, for example, that "no law or amendment to the constitution submitted to the electors by initiative and sup- plementary petition and receiving an affirmative majority of the votes cast thereon, shall be held unconsitutional or void on account of the insufficiency of the petitions by which such submission of the same was procured ; nor shall the rejection of any law submitted by referendum petition be held invalid for such insufficiency." Printed copies of the proposed laws and amendments to- gether with "arguments and explanations, not exceeding a total of three hun- dred words" for and a similar number against each, shall be distributed by the secretary of state "to each of the electors of the state, as fai as may be rea- sonably possible." (II, Ig.) "11, If. Ill, 2. ni, 8. Amendment 1012. 84 STATE CONSTITUTION-MAKING. Pending bills must be "fully and distinctly" read on three dififerent days, unless three-fourths of the house agree to dis- pense with this rule. Acts reviving laws must contain them entire, as must also acts amending sections of former laws. Three-fifths of each house^ may pass over the governor's veto a law that was originally passed by a majority vote. The gov- ernor may disapprove items in appropriation bills, subject to repassage as in the case of entire acts.* The utilization of power by the legislature is made manda- tory in a number of cases. For instance, laws "shall be passed" for removing oflflcials, upon "complaint and hearing," who are guilty of misconduct "involving moral turpitude or for any other cause provided by law."^ Laws must also be passed pro- viding for the employment of prisoners; contract prison labor is, however, forbidden. Except in cases of extraordinary emergencies, not to exceed eight hours shall constitute a day's work, and not to exceed forty-eight hours a week's work, for workmen engaged on any public work carried on or aided by the state, or any political sub-division thereof, whether done by contract, or otherwise." Express permission is given to pass certain kinds of legis- lation, especially : (1) "To secure to mechanics, artisans, labor- ers, sub-contractors and material men, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material."' (2) To fix and reg- ulate the hours of labor, to provide for the welfare of all em- ployees: (3) to establish a minimum wage,^ and (4) to enact workmen's compensation laws." sTwo-thirds before 1912. *He has, however, only ten days after the bill Is presented to him or after adjournment for this purpose, as in the case of other bills. The constitution maUes it mandatory that he shall file approved acts with the secretarv of state (11, 16). "II, 38. Amendment 1912. This method of removal is in addition to im- peachment, which power is invested solely in the House of Representatives, trial to be by the Senate (II, 23). 'II, 37. Amendment 1012. For restrictions upon the legislative power, see II, 28, 29, 32. 'II, 33. Amendment 1912. The equal deference paid to "labor bestowed" and to property is significant. "11, 34. Amendment 1912. See, infrn, p. 286. »II, 35. Amendment 1912. See, infra, p. 283. STATE CONSTITUTION-MAKING. 85 Laws to efifect forest growth and conservation^ and laws to establish a system of land-title registration^ may also be passed. The third article declares' that the executive department "shall consist of a governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, and an attorney gen- eral," to be elected by the people.* In the governor is vested the "supreme executive power of the state."^ The lieutenant gov- ernor presides over the senate, unless called upon to succeed to the governorship. '* The officers of the executive department, and of the public state in- stitutions shall, at least five days preceding each regular session of the General Assembly, severally report to the governor, who shall transmit such reports, with his message, to the General Assembly.' The fourth article vests the judicial power of the state in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law,* concerning all of which additional provisions of greater or less minuteness are incorporated. When the supreme court is equally divided the judgment of the court below is affirmed. No law shall be held' unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in • the aflirmance of a Judgnjent of the court of appeals declaring a law unconstitutional and void. In cases of public or great general interest the supreme court may, within such limitation of time as may be pre- scribed by law, direct any court of appeals to certify its record to the supreme court, and may review, and affirm, modify or reverse the .ludg- ment of the court of appeals." Ill, 36. Amendment 1912. "Laws may be passed to encourage forestry, and to that end areas devoted exclusively to forestry may be exempted, In whole or in part, from taxation. Laws may also be passed to provide for converting into forest reserves such lands or parts of lands as have been or may be for- feited to the state, and to authorize the acquiring of other lands for that pur- pose ; also, to provide for the conservation of the natural resources of the state, including streams, lakes, submerged and swamp lands and the development and regulation of water power and the formation of drainage and conservation dis- tricts ; and to provide for the regulation of methods of mining, weighing, meas- uring and marketing coal, oil, gas and all other minerals." 'II, 40. 'Sec. 1. Amendment 1885. *III, 1, 2. The term of the auditor is four years; the others, two years. 'Ill, 5. «III, 16; 15. 'Ill, 20. siv, 1. Amendment 1912 "IV, 2. Amendment 1912. 86 STATE CONSTITUTION-MAKING. Supreme Court judges are elected by the people for six years or longer as may be prescribed by law.^ The chief justice of the supreme court of the state shall determine the disability or disqualification of any judge of the courts of appeals and he may assign any judge of the courts of appeals to any county to hold court.^ Courts of conciliation may be established and their powers declared by the legislature, but these courts are not to render final judgment except upon submission by the parties of the matter in dispute and their agreement to atoide by such judg- ment.^ The fifth article provides for manhood suffrage* and elec- tion by ballot.' Nominations must be by direct primary election or by petition in case of all elective oflflcials except township ofQcials and officers of municipalities of less than 2,000 people.* The legislature must provide for a preferential vote for United States senators. Delegates to national conventions must be elected by direct vote of the electors and must state their first and second choices for the presidency.'' The sixth article is entitled Education, and provides for the inviolability of school funds and for the provision and adminis- tration of public schools.* A school district embraced in whole or in part within any city may by referendum determine the organization of its board of education. The governor appoints a state superintendent of public instruction for a term of four years." The seventh article provides briefly for the maintenance of state eleemosynary institutions. ijS. The supreme court consists of a chief justice and six associates ; but the legislature may change the number by t^yo-thirds vote of the members elected to each house, provided that no such change shall vacate the office of any judge or abolish an existing court (IV, 15). nv, 6. 'IV, 19. On application of the supreme court the legislature, by two-thirds vote, may authorize the appointment by the governor and senate of a commis- sion of five men to assist the court in clearing its docket (IV, 22). •V, 1. "Made mandatory in all cases (V, 2). CJltizenshlp Is not permitted to United States military and naval ofHcials merely because tfiey are stationed within the state (V, 5). Mental derelicts are disfranchised (V, 6). "Unless petitioned for by a majority of the electors. 'V, 7. «VI, 1, 2. »VI, 3, 4. Amendments 1912. STATE) CONSTITUTION-MAKING. 87 The eighth article, entitled PuMic DeM and PuMic Works, provides that no debt shall be created on behalf of the state except to the amount of seven hundred and fifty thousand dol- lars, to meet casual or unexpected needs in the ordinary busi- ness of government, and "to repel invasion, suppress insurrec- tion, defend the state in war, or to redeem the. present outstand- ing indebtedness of the state."^ -i Localities must not join in private enterprise, but public buildings may be insured in mutual insurance associations. All insurance rates charged by companies doing business for profit may be regulated by law.^ A superintendent of public works, to be appointed annually by the govenor, is provided for, so long as there shall be state works requiring superintendence.^ The militia, provided for by article nine, is composed of all white male citizens of the age of eighteen and under forty- five. The members elect their own ofQcers and may be called into action by the governor to execute the law and defend the state. Commissions for ofiicers issue from the governor, who appoints his own staff — as do also the higher militia officers. Article ten deals with county and township organization, which is left largely to the legislature. Terms of office must not exceed three years; the legislature may prescribe methods for removing officers. Article eleven is upon the subject of Apportionment, which must be made decennially according to the federal census or otherwise.* iVIII, 1-3. State credit not to be loaned to private parties, nor local debts assumed unless incurred for defence or the suppression of insurrection (VIII, 4, 5). For the payment of the state's existing debt a sinking fund is made manda- tory to be derived from receipts from public stocks and works, supplemented by other resources to be provided by law and, if necessary by taxation "sufBcient to pay the accruing Interest on such debt, and, annually, to reduce the principal thereof, by a sum not less than one hundred thousand dollars, increased yearly, and each and every year, by compounding, at the rate of six per cent, per annum." An ex officio sinking fund board is charged with its administration (VIII, 7-11). 2VIII, 6. Amendment 1912. 8VIII, 12. *rhe ratio of one hundredth of the population is established for the house of representatives, but the rule is modified by county lines ; for instance, a county having a population equal to half the ratio is accorded a representative. The senatorial ratio is one thirty-flfth of the population, and the state is divided into thirty-three districts. One district has three senators, the others one each. The rules of apportionment of senators to districts are very complex. To the governor, auditor and secretary of state or any two of them is en- trusted the decennial re-apportlonment of senators and representatives. Judicial districts are, furthermore, provided for. 88 STATE CONSTITUTION-MAKING. The twelfth article, Finance and Taxation^ starts with a pro- hibition of poll taxes,'' Intangible personalty must be taxed "by uniform rule" and "all real and personal property accord- ing to its true value in money,'' except school bonds and out- standing bonds of Ohio or pai'ts of the sitate. Burying grounds, public school houses, houses used exclusively for pub- lic worship, institutions used exclusively for charitable purposes, public property used exclusively for any public purpose, and personal property, to an amount not exceeding in value tive hundred dollars, for each indi- vidual, may, by general laws, be exempted from taxation. Such laws, it is expressly reserved, shall be subject to repeal." Especial provision is made that all property employed in bank- ing shall always bear a burden of taxation equal to that im- posed on the property of individuals,'' and inheritance, income, and franchise taxes and "taxes upon the production of coal, oil, gas and other minerals" are authorized..* Income and inherit- ance taxes may be at uniform or graduated rates and in the latter direct and collateral rates need not be the same. Not less than half of the receipts from these two taxes must be paid over by the state to the "city, village or township" in which they originated." Corporations, provided for in the thirteenth article, must be formed only under general laws, which are subject to altera- tion and repeal, and must submit to such varj-ingly elaborate regulation as the legislature may think wise.^ ''XII, 1. Amendment 1912. The requtrenient of "service which may be com- muted in money or other thing of value" is also forbidden. The original Ohio constitution (1804) had declared "that the levying of taxes by the poll is grievous and oppressive ; therefore the legislature shall never levy a poll tax for county or state purposes." "XII, 2. Amendment 1912. 'XII, 3. ■XII, 7, 8, 10, respectively. Amendment 1912. »II, 9. Amendment 1912. The legislature must provide revenue for the needs and obligations of the state (XII, 4) : tax laws must specify the ob.1ect of the levy and proceeds can be used for no other purpose (XII, 5). Legislation incur- ring bonded indebtedness must provide taxes sufficient to pay current interest and establish a sinking fund sufficient for redemption at maturity (XII, 11). ^Stockholders in banks and similar institutions "shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such corporations, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares" (XIII, 3). "No act of the General Assembly, authorizing associations with banking powers, shall take effect until it shall be submitted to the people, at the general election next succeeding the passage thereof, and be approved by a majority of all the electors, voting at such election" (XIII, 7). The exercise of the right of eminent domain is allowed corporations only on payment or deposit of full compensation in money (XIII, 5). STATE CONSTITUTION-MAKIXG. 89 Article fourteen, Jurisprudence, commands the legislature at its first session^ to provide for the appointment of three com- missioners to prepare a code of procedure, to abolish so far aS expedient, "the distinct forms of action in law" currently used, and to provide for the "administration of justice by a uniform mode of proceeding without reference to any distinction be- tween law and equity."^ The fifteenth article deals with a variety of miscellaneous subjects, such as the seat of government, state printing, duelists, lotteries, the liquor traffic,* and civil service.^ Article sixteen provides that amendments to the constitu- tion may be proposed by three-fifths of the legislature and rati- fied by a majority of those voting upon them at a general or special election, voting on each amendment separately, after five weeks' publication in each county." Two-thirds of the mem- bers of each branch of the legislature may submit to the elec- torate the question of calling a constitutional convention. Dele- gates must be nominated by petition and voted for on a sepa- rate ballot, without party designation.' In 1932 and every twenty years thereafter the question of calling a convention must be submitted to the electors of the state. All amendments proposed by a convention are required to be submitted to the electorate for approval or rejection.^ Article seventeen, dealing with elections, repeats much al- ready stated in previous articles," but adds nothing of im- portance. The eighteenth and final article. Municipal Corporations,^ is celebrated for its home. rule provisions. These, in a word, H. e., after 1852. "Report to be subject to the action of the legislature. 'Local option is provided for. ""Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascer- tained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision." (XV, 10, Amendment 1912.) "Women who are citizens may be appointed as members of boards of, or to positions in, those departments and institutions established by the state or any political subdivision thereof involving the interests or care of women or chil- dren or both." Otherwise only electors may be appointed to any office (XV, 4. Amendment 1913). «XVI, 1. Amendment 1912. 'XVI, 2. Amendment 1912. sXVI, 3. Amendment 1912. •II, III, IV. "Entirely the product of the 1912 convention. 90 STATE CONSTITUTION-MAKING. lay down the mandates that municipal incorporation shall be by general law,^ that special laws applying to individual cities must be submitted to the municipal electorates and that cities may frame their own charters, subject to such limitations, in financial and other matters, as may be prescribed by the leg- islature.^ By two-thirds vote or on petition of ten per cent, of the electors the "legislative authority" of a municipality may sub- mit to the electors the question "shall a commission be chosen to frame a charter." Ballots must be without party insignia and must provide also for the election of fifteen commissioners to frame the charter in case a majority of those voting on the question desire it. When framed copies of the charter must be mailed to all voters.* Amendments may be made in a similar fashion by vote or petition and submission to the voters.^ Municipalities are classified into cities and villages accord- ing to population, — 5,000 and less than 5,000, respectively,' and are vested with authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.' Municipal ownership of public utilities is elaborately pro- vided for. No ordinance for such acquisition can take effect until after thirty days, during which a referendum may be de- manded.* Excess condemnation is authorized for municipalities ac- quiring property for public use, and the excess above the amount actually used may be sold with "such restrictions as shall be appropriate to preserve the improvement made." Bonds issued for the excess property are not a municipal liability, but a lien upon the property bought for the use in question and upon the excess." Assessments upon abutting property to the extent of 2A1S0 required by XIII, 6. 5XVIII, 2, 7, 13. *XVIII, 8. "XVIII, 9. "XVIII, 1. 'XVIII, 3. 'XVIII, 5. The debt limit of a municipality may be exceeded In the case of mortgage bonds for the acquisition of a public utility (XVIII, 12). »Sec. 12. Text, ^nfra, p. 342. STATE COXSTITUTION-II.VKING. 91 the benefit to be derived from the improvements, not to exceed one-half of its cost, may be made by a city for the construction of improvements.^ The Ohio constitution, among those of the distinctly large 75. commonwealth, stands most clearly for government by the the Ohio ana people. The amendments of 1912, headed by those establishing Proposed New York the initiative and referendum, sought to establish a government constitu- responsive to the people governed and to give to the electorate — in whom rests final responsibility for governmental action — the tangible means for making its power effective. Toward making the government itself a more efficient organ for the execution of the wishes of the people, however, the Ohio con- vention contributed almost nothing. The New York convention of 1915, on the other hand, made an eflScient governmental machine the first principle of its en- deavor. It sought responsibility by making each official's duties and powers definite and by reducing the constitutional checks through which responsibility could be shifted from one officer to another and lost in the general confusion. Centralized con- trol was emphasized, administrative organization was simplified and the governor's position made more distinctly than before the fountain and center of the entire state government. The diflferences are excellently typified — personified — in the presidents of the two conventions. Herbert S. Bigelow, pastor of a non-orthodox Cincinnati church, whose religion is democ- racy and social progress, was elected to preside over the Ohio convention because in him centered the aspirations of those who sought more direct popular government and whose thoughts and studies had not narrowed down to the technical details of the government itself, who believed in the efficacy and wisdom of the common will and sought above all things else to give it expres- sion. Elihu Eoot, world famous statesman and intellectual leader among senators and presidential advisers, but endowed with little faith in the masses of the people, was the natural choice for the chairmanhsip of a convention which was keenly alive to the evil effects of popular apathy and saw the enormous wastefulness of a governnj^nt already highly popular in form but clumsy and beset by friction when in operation. The New 'Bee. 11. 92 STATE CONSTITUTION-MAKING. York convention was thoroughly aware that in a government in which diffused responsibility is made inevitable by law party ••bosses" — extra legal and utterly irresponsible functionaries — must necessarily arise in order to cement the warring govern- mental elements into a workable if not a graceful or eiBcient political organ. This convention was determined to set up a state government that could run itself. Unfortunately the new instrument produced was ahead of its time — and also behind the times. The people were jealous of their powers and feared to lose them in a too workable — hence, too powerful — government whose new functions they little understood or appreciated. The convention failed to un- derstand the people and so failed to offer them additional safe- guards or additional means of control. At a special election held in New York in April, 1914, in 76. which less than one-fifth of the electorate participated, a consti- Wor)£ of the f f , New York tutional convention was ordered by an insignificant maiority of Convention J b j j of 1915. those voting. Under the constitution of 1894^ i)roviding for a periodic submission to the electorate of the question of calling a convention, a vote would naturally have been — and will be — taken on the subject in the present year.^ Delegates were elected at the November election, 1914, and assembled in the spring of 1915. On September 10 a constitu- tion was adopted in convention by the vote of 118 to 33 but was overwhelmingly defeated by a popular majority of more than half a million* in the election of November 2. The convention decided to submit separately its taxation and apportionment amendments. Three other amendments which had been pro- posed by the legislature, (1) to extend the suffrage to women ;^ (2) to alter the interest rate upon state indebtedness^ and (3) to ratify a bond issue for the barge canal, ^vere voted on at the same time. All save the last were defeated, though with vary- ing majorities. In its address to the people the convention pro- nounced as most important in its work of amendment ten pro- =XIV, 2. "1016. *893,635 to 388,966. The convention cost the state about half a million dollars. 'The vote was 553,348 for ; 748,322 against. 'of. proposed constitution, IX, 4. STATE CONSTITUTION-MAKING. 93 posals, given as follows, for the most part in the language of the address: — (1) The reorganization of the state government on its ad- ministrative side into seventeen civil departments, a reduction in the nuniber of elected officers, and provisions for the appoint- ment of all other officers.'' These changes, the convention be- lieved, would put an end to the present unsystematic, wasteful and irresponsible organization of the state government, under .^ which the state's executive and administrative agencies are dis- tributed among more than one hundred and fifty bureaux, de- partments, commissions, boards and officials, many of which duplicate the work of others. The proposed departments of law and finance were to be headed by the elective attorney-general and comptroller. The heads of several departments whose terms of office were to extend beyond the term of a single governor and who were invested with both legislative and administrative func- tions^ were to be appointed by the governor with the advice and consent of the senate and removable for cause by the gov- ernor after opportunity to be heard. The department of educa- tion was continued under the administration of the University of the State of New York." The other departmental heads were to be appointed by the governor and removable by him.^ (2) Provisions affecting the legislature, designed to remove from it the consideration of local matter's and private claims, and to restore it to its true function of enacting laws of general application and of making necessary appropriations for the con- duct of the state government. With this end in view the conven- tion increased the prohibited classes of private or local bills so as to embrace those granting to any corporation, association or individual the right to prove a claim against the state, or 'The seventeen departments were to be (1) law, (2) finance, (3) accounts, (4) treasury, (5) taxation, (6) state, (7) public works, (8) health, (9) agri- culture, (10) charities and corrections, (11) banking, (12) insurance, (13) labor and industry, (14) education, (15) public utilities, (16) conservation, and (17) civil service. The elected officers to be made appointive were the secre- tary of state and treasurer. The elective office of state engineer was to be abolished and the duties to be tranferred to the proposed department of public, works, the head of which was to be appointed by the governor (VI, 1, 2, 4). 'Preceding note, (15), (16), (17). These department heads were to be com- missions. The head of the department of labor and industry, to be a com- mission or commissioner, was to be likewise appointed, but removable at the governor's discretion. •Composed of nine regents chosen for nine-year terms by the joint vote of the two houses of the legislature. 'Proposed Constitution, Art. VI ; VII, 1. 94 STATE CONSTITUTrON-MAKING. against any civil division thereof, and bills authorizing any civil division of the state to allow or pay any claim or account. It prohibited legislative auditing of private claims against locali- ties and retained or added other minor restrictions. Publica- tion of legislative debates and journals of proceedings was pro- vided for. The legislative salary was to be increased from 11,500 to 12,500 per year; that of the governor from |10,000 to $20,000. The legislators were also to have as traveling expenses the railroad fare actually paid in going to and returning from their place of meeting on the most usual route, but not oftener than once each week during any session of the legislature. Such railroad fare was to be repaid only on the verified voucher of the member entitled thereto after audit by the comptroller.^ (3) A careful regulation of and change in the method of making a/ppropriations for the expenses of the state, hy means of an annual executive budget. At the same time the practice of emergency messages which the governor has been accustomed to send to the legislature during the closing days of the session and which authorize appropriation bills without the usual con- sideration, was to be abolished. Instead of leaving the legisla- ture to make appropriations without any comprehensive and systematic study of the needs of the various departments of the state government, and the sources of its revenue, leaving to the governor the power and duty after the adjournment of the leg- islature to go over the appropriation bills and cut out items which appear to him to be unnecessary or improper, the new constitution was to "restore the true American ideal"' by re- quiring (1) the preparation by the heads of departments, in advance of each legislative session, of itemized estimates for appropriations to meet the financial needs of each department for the ensuing year, and (2) the preparation by the governor, after public hearing, for submission to the legislature, of a com- plete budget or plan of proposed expenditures and estimated revenues. The right was to be given to the governor and the heads of departments to appear before the legislature and be heard respecting the budget and they would have to appear if Hb., Ill, 19, 20, 12, 8; IV, 1. 'At the beginning congress babitually sought the coSperation of the secre- tary of the treasury ; hia advice was asked and taken in almost everything per- taining to finance. STATE CONSTITUTION-MAKING. 95 requested to do so by either house. The legislature was to have power to reduce or eliminate but not to increase any item, and executive budget bills were not to be subject to the governor's veto. Appropriation bills for expenses of the legislature and judiciary were to remain subject to the governor's veto, as a whole or in particular items.* (4) Improvements in the method of contracting indebted- ness for the purposes of the state, and the siCbstitution of serial for sinking fund bonds. This method is more certain and eco- nomical. The coupons fall due so that equal amounts are paid each year until the time when all are paid — which was not to be beyond the estimated life of the thing for which the debt was contracted." (5) The grant to cities of as large a control of their own municipal government and affairs as is consistent with state sovereignty. Every city was to have exclusive power to manage, regulate and control its own property, affairs and municipal government, including, among others, the right to organize and manage the departments of the city government, and to regu- late the compensation and method of removal of all city officers and employes, thus enabling them to obtain what is just and fair, both for themselves and the taxpayers, without the neces- sity in the first instance of application to the legislature; but the legislature was to retain power to enact laws applicable to all cities of the state. New charters made by cities and fun- damental amendments were to be submitted to the legislature and become law unless disapproved by it. The legislature was to be required to enact regulations governing municipal indebt- edness, similar to the constitutional regulations for the state. Such indebtedness was in no event to be for a longer period than fifty years." (6) Authority in the legislature to provide hy general laws for optional forms of county government, to he adopted only hy vote of the electors, and prohibiting the passage of local or special laws relating to a county, except at the instance of its Hb., V ; IV, 9. The full text of Art. V is giyen, infra, p. 254. Hb., IX, 2, 4. Infra, p. 286. m., XV ; XI, 12 ; IX, 4. Infra, pp. 322-4. 96 STATE CONSTITUTION-MAKING. local authorities.' The New York constitution in force pro- vides simply that there shall be in each county, except in a county wholly Included in a city, a board of supervisors, to be composed of such members and elected in such manner and for such period as is or may be provided by law.' (7) Reform in civil procedure in the courts of the state, and provisions affecting the orgoMization and jurisdiction of the courts, designed to prevent delays in the administration of jus- tice and to simplify litigation and make it less expensive. The legislature at its first ensuing session was to enact a short and simple civil practice act which it could not alter or amend ex- cept at intervals of five years, unless at the request of the judges empowered' to frame civil practice rules, and then only after report by a commission appointed to consider the subject. De- tails of civil practice were to be left exclusively to the Court of Appeals." The idea was to substitute for the present statutory Code of Civil Procedure and rules regulating practice, a simple code and court -made practice rules. A number of changes in the state judiciary were provided for. Some courts were to be consolidated and some additional justices provided. The court of claims was made a constitu- tional court to eliminate the constant partisan legislation con- cerning it. The number of justices of the Court of Appeals was to be increased and the court was to be divided into two parts each of seven judges, each part having equal jurisdiction to hear and dispose of the cases which should be distributed be- tween them by the chief judge. The accumulated cases had reached 600 and it commonly required two years after appeal to secure a hearing. The special double court was to last only till the number should have been rediuced to 100 and in no event after the end of 1917. The legislature was to be empowered to confer upon any inferor local court power to try misde- meanor eases Avithout a jury. Persons accused of offences pun- ishable by not more than five years imprisonment were to be authorized to waive trial by jury in the manner prescribed by law after examination or commitment by a magistrate.' 'i6.. Ill, L'5. Certain exceptions. nu, 2G. "The court of last resort in New York. "Proposed Constitution, Art. VIII. STATE CONSTITUTION-MAKING. 97 The legislature, of its own motion, in such manner as should be provided by joint rule, was to be empowered to convene to take action upon the removal of a judge of the court of appeals or supreme court or for impeachments.^ (8) State control over the assessment of taxes on property. There were to be provisions under which the legislature, for the assessment of real property locally assessed, might, with the approval of the electors, establish tax districts embracing one county or any part thereof. The assessment roll for such dis- trict might by law be made to serve for all the lesser tax dis- tricts within its boundaries, thus providing a uniform rule of assessment for all purposes throughout the district. The power to prescribe rules for assessment and to provide for oflcers to assess personal property and the property of public service com- panies was also conferred upon the legislature.^ (9) TTis protection of the natural resources of the state un- der a conservation cominission. This commission was to be charged with the development and protection of the natural re- sources of the state, the encouragement of forestry and the sup- pression of forest fires throughout the state, with the exclusive care, maintenance and administration of the forest preserve, with the conservation, prevention of pollution and regulation of the waters of the state and with the protection and propagation of its fish, birds, game, shell-fish and Crustacea, except migratory fish of the sea within the limits of the marine district. Annual appropriation for increasing state-owned forest lands, reforesta- tion, and surveys was required of the legislature.* (10) Provisions for the benefit of wage earners ty creating a constitutional department of labor am,d industry, ly extend- ing the benefits of the workmen's compensation act to embrace occu/pational diseases, and by empowering the legislature to regulate or prohibit manufacturim,g in tenement houses. The workmen's compensation clauses were significantly included in the bill of rights,* as was the amendment of 1913, which was merely enlarged upon by the 1915 convention.^ 2i6., Art. Ill, sec. 10. Hb., Art. X. Hh., VI, 2 (16) ; VII. Hb., I, 19. "Concerning tenement-house manufacturing, see, ib.. Ill, 29. 98 STATE CONSTITUTION-MAKING. This by no means exhausts the work of the convention. Its proposed constitution contained eighteen articles and about 30,000 words — of which perhaps 17,000 words remained un- changed from the existing constitution. The new instrument was variously assailed for alleged faults both of omission and commission, among the more reasonable of which, probably, were its complexity, making it, as one critic said, beyond human understanding, and the fact that it was the result of so many compromises and so much dickering as to fail genuinely to carry out any of the aims of the leading members of the con- vention. Distrust of change, the fears of ofiSce-holders, the fact that partisan politics was dragged into the question from the very beginning and the widely-shared opinion that some of the changes were anti-democratic or even deliberate attempts at reactionaryism and favoritism to privileged interests,^ were doubtless among the causes contributing to its downfall.* Tennessee Note. — Viewed as one among the great company of the constitutions of the states the Tennessee constitution presents nothing that is in any way striking. It is shorter than the average by some 8,000 words, but the progressive increase in length which it has under- gone at the hand's of each succeeding convention is typical of the growth of the constitutions generally. In the nature of its contents it is similar to other constitutions that stand intermediate between the very early and the modern types, though it has more in common with the former than with the latter. Unchanged since the convention of 1870 completed its labors, the Tennessee constitution has naturally been unaffected by any of the profound changes that recent years have wrought in constitutions. None of the distinctly modern provisions that characterize, for good or evil, the far western constitutions and have been to some extent copied in the East, are found in its brief — but not always clear or comprehen- sive — articles. 'This last accusation was strikingly expressed in a cartoon in the New York World of Aug. 14, 1915, paraphrasing the preamble so that it read, "We the Corporations of the State of New Yorls, grateful to Corrupt Politics for our Privileges, In order to secure their blessings, Do establish This Constitution." 'For discussion of this constitution and the reasons for its rejection, see Benjamin, G. G., The Attempted Revision of the State Constitution of New York, American Political Science Review, X, 1, p. 20 (Feb., 1916). STATE CONSTITUTION-MAKING. 99 CHAPTER VI. The Electorate.^ On the theory that all power and authority is inherent iiiT,J''^- the people as a whole, the electorate — the voters — may be Electorate ' ■'an Organ of thought of as constituting an organ of government, existing for Government, the purpose of determining the nature of governmental organi- zation and functions and of choosing the individuals who are actually to perform the work of government. As democracy becomes more and more a fact, the electorate and the people become more nearly synonymous. The electorate is in practice an irresponsible and self-perpetuating body; it dictates certain qualifications for those who would enter its closed corporation. What these qualifications are— who shall compose the all-pow- erful electorate — ^is the question of first importance in American fundamental law and is accordingly given first place among the present chapters discussing separately the leading provisions of the state constitutions. Every constitution prescribes certain requirements which a _ '^8. person must fulfill in order to vote. Eequirements of citizen- :^o».s for ship,^ residence^ and age* are always found and every state ex- cludes certain specified classes of people, chiefly criminals and persons of unsound mind.^ Interesting clauses requiring that the voter must be of good character," or must have paid taxes^ 'General Eeferenees : Sumner, Helen L., Equal Suffrage ; Crothers, Samuel MeChord, Meditations on Votes for Women; Hearings of Committee on Woman Suffrage, U. S. Senate, 63rd Congress, 1st Session; Mathews, S. (Ed.), Woman Suffrage; The Woman's Journal (weekly) ; Stephenson, G. T., Race Distinctions in American Laic; Phillips, .1. B., Educational Qualifications of Voters. Hn the state, United States or both. The following states do not require voters to be United States citizens : Ala., Ark., Ind., Kan., Mo., Neb., Ore., S. D., Tex., in all of which intention to become a citizen must have been de- clared, in Ala., before the ratification of 1901 constitution. Mass (Amend. Ill) requires that voters must be "citizens." 'In the state from three months (Me.) to two years (e. g., N. C), and usu- ally for varylngly less periods in county and precinct. *21 years, invariably. ''Paupers are occasionally excluded. An interesting and unique exclusion is found in the Ida. (VI, 3) requirement that a person is disfranchised who be- longs or contributes to an order, corporation or society teaching or advising that the laws of the state prescribing rules of civil conduct are not supreme law of the state. »See Ala., VIII, 180 ; Conn., VI, 2 ; Ga., II, sec. 1, par. 4 ; Vt. II, 34. 'Pa., VIII, 1 (4). See, also, e. g., Ga., II, 1; Miss., XII, 241; N. H., II, 30. 100 STATE CONSTITUTION-MAKING. are found in a few constitutions. The most noteworthy qualifi- cations for voting* today are, however, those of sex, education, ownership of property, payment of poll taxes and the so-called "grandfather clauses." Of these by far the most important is that of sex. The question of allowing women to vote is the one big unsettled problem concerning the composition of the elec- torate that is today receiving wide public discussion. Eleven states have completely abolished the requirement that 79. voters must be of the male sex." Wyoming began the movement Qualification, in 1869, but by the end of the century only three states had fol- lowed the lead. The latest states 'to adopt equal suffrage were Nevada and Montana in 1914. In the fall of 1915, constitutional amendments for granting it received 1,234,470 votes in the great eastern states of New York, New Jersey, Massachusetts and Pennsylvania, but in each of these states the amendment was overwhelmingly defeated. During the campaign the Literary Digest^ polled the press of the country and ascertained that of 526 editors, replying freely from every state, 391 favored equal suffrage, 97 opposed it and 38 were undecided. Of these editors 237 thought that their community favored it; 156 that their communities were opposed and 133 that they were undecided. Of the last a large number were reported as "rapidly becoming more favorable."^ The simplest way to amend a constitution so as to establish equal suffrage is to strike out the word "male'" or "men" in the suffrage clause, leaving the meaning that all persons are eligible to vote if they possess the other qualifications. Most of the suffrage states, however, have deemed it necessary to say positively that women may vote, or that the suffrage shall not be qualified by sex.* 80. Woman Suffrage in the Con- stitutions. ^Different qualifications for ditterent elections, state, local, scbool, etc., some- times occur. »Arlz., Cal., Col., Ida., Kan., Mont., Nev., Ore., Utah, Wash., Wvo. Also Alaska. ^Results given in the issue of Oct. 0, 1915. (Vol. 51, No. 15.) 'In 1916. S. D., W. Va., will vote upon the extension of the franchise to women. It has already been voted upon and defeated in la. "Thus the Montana amendment of 1914 simply omitted the word "male" from Art. IX, sec. 2. politics seems to have been slight, but the interest of the women was seemingly on the increase and upon the majority of them the exercise of the ballot had been influential for good. Evidence that voting had any effect upon "womanliness" was not apparent." Finally, says the investigator, the Colorado experiment certainly indicates th'at equal suffrage is a step in the direction of a better citizenship, a more effective use of the ability of women as an integral part of the race, and a closer under- standing and comradeship between men and women.' Next to that of sex, the educational qualification is probably 83. the one about which most controversy is at present waged and Educational Qualifica- in which interest is most apparent. More than a third of the tion. state constitutions provide for some sort of qualifications that may be considered educational,^ One of them" merely states that the legislature may establish such qualifications under cer- tain circumstances. Another state^ requires the legislature to Hh., 211. HT)., 258-260. 'Two of the replies received by Miss Sumner to a questionaire which was part of the investigation are interesting on this point ; — Suffrage produces a "higher standard of Ifnowledge of public affairs in the home, and has a tendency to make the home the unit rather than the individual when the tendency is to double the power of the home vote," says a male correspondent; a woman writes, "It brings husbands and wives nearer to each other. Their interests are more closely related, and wives who are able to converse intelligently . . . [are] more companionable" (p. 257). 8Ala., VIII, 181 ; Cal., II, 1 ; Colo., VII. 3 ; Conn., Amend. XXIX ; Del., V, 2 ; Ga., II, sec. I, 4 ; La., 197-3 ; Me., Amend. XXIX ; Mass., Amend. XX ; Miss., XII, 244 : N. H., I, 11 ; N. C, VI, 4 ; N. D., V, 127 ; Oisla., Ill, 4a ; S. C, II, 4 ; Va., II, 19 ; Wash., VI, 1 ; Wyo., VI, Suffrage 9. In N. M. the right to vote is not restricted, abridged or impaired on account of inability to speak, read or write English or Spanish, except as provided in the constitution, which, however, fails to make any such provision (VII, 3). »Colo. " m. D. 112 STATE CONSTITUTION-MAKING. establish educational qualifications. Several states^ make the educational qualification applicable only in case the person wishing to become an elector is unable to fulfill certain qualifi- cations otherwise required. A number of the educational clauses provide for certain ex- ceptions to their application — for instance in case the person shall have reached a certain age at the time of the adoption of the constitution or amendment, or is prevented from qualifying through physical disability. Ability to read any section of the state constitution and to write one's name is the typical test. Some of the clauses ap- parently require the reading of the entire constitution. To the requirement of an article of the constitution one' adds "or any section of the Statutes" of the state. Others* require not only the reading but the explanation of any section of the con- stitution. Another' requires simply ability to read and speak English and leaves to the legislature the duty of enacting laws for ascertaining this ability. Educational qualifications had their origin in the Know- nothing agitation of the fifties," and were revived in the attempts of several of the former slave states to rid their electorates of the masses of ignorant negroes guaranteed the ballot by the fifteenth amendment to the federal constitution. The first step was taken when the voters of Connecticut amended their con- stitution, to the effect already noted, in 1855. In 1895 the re- striction was added that the reading of constitution or statute should be in the English language. The powerful, though transi- tory, American Party was responsible, also, for the Massachu- setts amendment of 1856 — requiring ability to read the consti- tution in English and to write one's name. Persons above a certain age at the time the law was passed were excepted.'^ In the application of an educational test there must of course be considerable discretion left with the registration officers — 'e. g., Ala., La. "Conn. *e. g., MIbs. "Wash. "George H. Haynes, Qualiflcations for the Suffrage, Political Science Quar- terly, XIII, 405 (1898) ; Prof. Haynes approves the educational test. Interest- ing mention and approval of an educational qualification is made by C. S. Lob- Ingler, Efficient Democracy, in the Unpopular Eeview, Jan., 1916, p. 66. 'Immigrants were seldom old people. STATE CONSTITUTION-MAKING. 113 and therein lies much of the potency of such a method when a dominant race determines to exclude a race that is without in- fluence — save in number of heads to be counted.' The third state to adopt educational qualifications was not added to the list until a generation later, when the Wyoming constitution of 1889 adopted an educational test, apparently for its own sake. Among the first constitutions adopted by the states property 84. qualification for the suffrage was the well-nigh universal rule." Qualification. During the democratic ascendency of the first half of the nine- teenth century, however, it was generally abolished and is re- quired today in only one state, Rhode Island,^ where the amount required is only $134.^ Several states permit ownership of property to qualify one for voting who fails to meet other re- quirements.^ A property qualification is unqualifiedly forbidden in three states* and a fourth constitution^ declares that the ownership of property ought not to aflfect the right to vote. Tt is prohibited save in elections levying a special tax or creating indebtedness in a fifth state," and in elections other than school and debt- creating in a sixth.'' Finally, in one state' 'Kegulatlons to prevent such abuses have been attempted. Prof. Haynes (op. clt., p. 507) thus describes the Massachusetts process as it existed in 1898, — "In the first place, the registration board must be composed of members of more than one party, thus enlisting party jealousy in the cause of honest registra- tion.- The registrars are furnished by the secretary of the commonwealth with the constitution, printed on uniform pasteboard slips, each containing five lines printed in double small pica type. A full number of these slips are kept at all times in a special box, furnished by the state and so constructed that the box, with the slips concealed from view, may be revolved. From this box the candidate for registration must draw one slip and read the words thereon printed. After the return of the slips the contents of the box must be shaken up before the next drawing is made." "These regulations," Professor Haynes comments, "may seem absurdly fine- spun, but the danger of cramming or of collusion warrants great precaution. In former years stories were told of specially primed candidates for registration who read with great glibness the opening sentences of the constitution out of the first chapter of Genesis !" ^Beard, American Government and Politics^ p. 79. For actual percentage of population voting just prior to the Revolution, see A. E. JicKinley, The Suffrage Franchise in the Thirteen Colonies. (University of Pa. Publications). Ill, 1. "Real estate above incumbrances ; alternative, property renting for $7 per year. ^e. g., S. C, II, 4; Va., II, 19. Ala. (VIII, 181) makes ownership by one's wife of the requisite property sufficient ; taxes for preceding year must have been paid. *.Cal., I, 24 ; Kan., B. R., 7 ; Minn., I, 17. "N. C, I, 22. "Utah, IV, 7. 'Ida., I, 20. «Va., II, 30. 8 114 STATE CONSTITUTION-MAKING. the General Assembly may prescribe a property qualification not ex- ceeding two hundred and fifty dollars for voters in any county or sub- division thereof, or city or town, as a prerequisite for voting in any election for ofiicers, other than the members of the General Assembly, to be wholly elected by the voters of such county or subdivision thereof, or city, or town ; such action, if taken, shall be had upon the initiative of a representative in the General Assembly of the county, city or town affected ; . . . the General Assembly may make such exemptions from the operation of said property qualification as shall not be in conflict with the Constitution of the United States. 85. Payment of Poll Tax. The constitutions of ten states contain the requirement that in order to vote a person must have paid a poll tax." In two others^ the legislature may make the payment of a capitation tax a prerequisite of voting, but in one of these it must not be re- quired of soldiers and sailors. In Massachusetts, whose con- stitution does not require the prerequisite of poll-tax payment, non-payment must in.no event deny the vote fo honorably dis- charged war veterans of the United States army or navy.' There exist various other exceptions, relating chiefly to age and physical disabilities. 86. Alternative Qualifica- tions. , As a means of preventing the operation of restrictive clauses in the cases of certain classes of voters who might be dis- franchised by them, several cofistitutional conventions have de- vised alternative provisions whereby persons otherwise liable to be disqualified by means of educational, property or other tests, may nevertheless retain the ballot. In the north, where such provisions exist at all, they were usually intended to save cer- tain native-born persons from disfranchisement through anti- immigrant clauses ; in the south, from disfranchisement through anti-negro clauses. Thus in Virginia there was a general registration in 1902 and 1903, at which all male citizens of the United States having proper qualifications of age and residence could register if they were either, first, a person who, prior to the adoption of this Constitution, served in time of war in the Army or Navy of the United States or of the Confederate States or of any state of the United States or of the Confederate Stat1?s ; or, second, "Ala., VIII, 178, 104 ; Ark., Amend. IX ; I.*., 198 ; Miss., XII, 243 ; N. C, VI, 4 ; R. I., Amend. VII, 2 ; S. C, II, 4 ; Tenn., IV, 1 ; Tex., VI, 2 : Va., II, 18, 20, 22, 38. iPla., VI, 8 ; Nev., II, 7. ^Amendments XXVIII and XXXI. See, also, Nev., II, 3. STATE CONSTITUTION-MAKING. 115 a son of any such person; or third, a person who owns property upon which, for the year next preceding that in which he offers to register, State taxes aggregating at least one dollar have been paid ; or fourth, a person able to read any section of the State Constitution and give a reasonable explanation of the same, or, if unable to read such section, able to understand and give a reasonable explanation thereof when read to him by the officers. A roll containing the names of all persons thus registered was to be preserved, and persons so enrolled need not register again.' The Virginia suffrage provisions afford a typical illustra- 87. tion of the so-called "grandfather clause." This name is applied "Grandfather to those exemptions from certain restrictions upon voting which are made (1) in favor of persons who have reached a certain age at or prior to the time the restrictive law goes into effect and (2) in favor of specified classes of persons — usually war veterans or persons who could vote at some fixed date in the past — and descendants of such persons.* Thus California exempts from its educational test persons having the right to vote when the amendment was adopted in 3911 or persons sixty years of age at the time. Alabama and Georgia, like Virginia, make their exemption applicable to war veterans and their lawful descendants.^ Louisiana, North Car- olina and Oklahoma exempt persons who could vote at some date prior to the adoption of the fifteenth amendment to the constitution of the United States" and their lineal descendants.' The Oklahoma clause,^ providing that no person shall be registered as an elector . . . unless he be able to read and write any section of the constitution of . . . Oklahoma ; but no person who was, on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his Inability to so read and write sections of such constitution, ^Stlmson, Federal and State Constitutions of the United States, p. 225. Const, of Va., 19. *Such clauses are found In the constitutions of Ala. (VIII. 180) ; Cal. (II, 1) ; Ga. (II, sec. 2, par. 4); 111. (VII, 1); La. (197, sec. 5; 198); Me, (29th Amend.) ; Mass. (Amend. XX) ; N. C. (VI, 4) ; Okla. (1910 Amend.) ; Va. (II, 19) ; Wash. (VI, 1). Also, by statute. In N. H. (Public Statutes, compiled 1901, pp. 136-7). See, also, ». C, II, 4. °Va., son only. 'Proclaimed March 30, 1870. 'La., son or grandson only. '1910 amendment to Art. III. 116 STATE CONSTITUTION-MAKING. came before the Supreme Court of the United States for review in the case of Guinn versus the United States," decided in 1914, and was declared to violate the fifteenth amendment and so to be void. Commenting upon the clause the court, speaking through Chief Justice White, said,^ Its opening sentence fixes the literacy standard which is all-inclusive, since it is general in its expression and contains no word of discrimina- tion on account of race or color or any other reason. This, however, is immediately followed by the provisions creating the standard based upon the condition existing on January 1, 1866, and carving out those coming under that standard from the inclusion in the literacy test which would have controlled them but for the exclusion thus expressly provided for. . . . It is true it contains no express words of an exclusion from the stand- ard which it establishes of any person on account of race, color, or previous condition of servitude, prohibited by the 15th Amendment, but the standard itself inherently brings that result into existence since it is based purely upon a period of time before the enactment of the 15th Amendment, and makes that period the controlling and dominant test of the right of suffrage. . . . We are unable to discover how, unless the prohibitions of the. 15th Amendment were considered, the slightest reason was afforded for basing the classification upon a period of time prior to the 15th Amendment. Certainly It cannot be said that there was any particular necromancy in the time named which engendered at- tributes affecting the qualification to vote which would not exist at an- other and different period unless the 15th Amendment was in view.'' The "grandfather clauses^' complete the schemes by which southern states have sought to eliminate as far as possible the negro vote by singling out the peculiar characteristics of the negro race and making of them disqualifications for voting. Such requirements as the ownership of property, payment of poll taxes, an educational test and residence for a considerable time in one place obviously disfranchise more negroes than white »238 TJ. S., 347; (59 Lawyers' Ed., 1340). "pp. 364-5. ''Frequent unsuccessful attempts to have state statutes and constitutional clauses which palpably discriminated against the negro declared void have been made. The court early declared that the fifteenth amendment did not confer any right of suffrage — see V. 8. v. Reese, 92 TJ. S., 214 (1875) — and it has not been strict In Its attitude toward enactments restricting suffrage that on their face, of course, applied equally to persons of all races. In 1874 a case was decided adversely, on similar grounds, In which the plaintiffs sought to maintain that the fifteenth amendment established the right of women to vote — Minn. V. Happersett, 21 Wall., 162. STATE CONSTITUTION-MAKING. 117 men, and tliis has usually been their object.' Whether the Supreme Court will extend its adverse holding so as to include the "grandfather clauses" less obviously devised than that of Oklahoma for the express purpose of contravening the fifteenth amendment, and whether other qualifications intended as a mat- ter of common knowledge to discriminate against the negro will likewise be declared void, is probably a matter of less concern now than it would have been a decade ago. As the races become adjusted to each other in their common citizenship, and as the negro advances in education, controversies over negro suffrage will doubtless gradually disappear.* Tennessee Note. — ^Tennessee was subject prior to statehood to tbe property qualifications Imposed by the North Carolina constitution and later by the Act of Congress governing the Southwest territory, but vir- tually established manhood suffrage for freemen in the constitution of 1796 — subject, of course, to age, sex, residence and citizenship require- ments. The constitution of 1834 effectually deprived free negroes of the franchise. The constitution of 1S70 confers the suffrage upon male citizens of the United States who iave resided a year In the state and six months in the county and have paid the poll taxes assessed against them for such period as the legislature may prescribe. It forbids any other qualification." The 1&15 Legislature proposed an amendment grant- ing equal suffrage to women, which, if endorsed by the legislature of 1917 will be submitted to a vote of the existing electorate." 'See the interesting statements concerning Mississippi's efforts at disfranchis- ing the negro in RatUff v. Beale (1896), 74 Miss., 247; 20 S., 865. *Por statistics . of the actual effect of the laws intended to limit negro suffrage, see Rose, J. C, Negro Sulfrage, American Political Science Review, I, 17. Stephenson, op. cit., pp. 322, seq., gives an excellent table showing the suffrage qualifications in each state. "Art. IV; I, 5. "For rules governing submission of an amendment see Art. XI, sec. 3, infra, p. 354 ; for text of suffrage amendment, Appendix 4. The Democratic and Repub- lican state conventions of 1916 endorsed egual suffrage a month before the national conventions took such action. 118 STATE CONSTITUTION-MAKING. CHAPTER VII. Elections.^ 88. Early Simplicity and Growing Complexity of Elections. James Eobbetson, writing to Governor Sevier from Nash- ville after the gubernatorial election of 1797, said : I maid known at the opening of the ipoles, that you ware a candidate for Govener, likewise did Colo. Lewis, some few which had thare tickets wrote did not alter them, and a few that wished to shue thay ware not your Frends, voted for others, not to exceed twenty, we have 1037 voters, in this county, you had 906 in voats. I have not heard from the other Countyes, but perhaps some of them may Jiave dun as a Number ware like to do heare, and your Frends, that it was unneces- sary for all to have your name in as you had no opponant.' The simplicity of the electoral procedure indicated is illustra- tive of the times and of the Tennessee constitution which con- tained no regulations of the conduct of elections, save that they should be by ballot on specified days and be free and equal.' As citizens and voters have increased in number and social and political life has become more and more complex, electoral procedure has necessarily undergone much change. Candidates for ofiQce can no longer leave their announcements to their friends at the opening of the polls, nor can their supporters depend upon personal knowledge in making a choice. In a constituency of many thousands of voters men cannot, as in neighborhood elections, know how everyone else stood and so know whether the ballots were honestly counted. In order that the people of large communities may express their will through elections, elaborate machinery must be em- ployed to formulate their desires into clear-cut issues and afford them the means of selecting oflScials who will be in some meas- ure representative of all. To supply this need political parties "General References : Jones, C. L., Readings on Parties and Elections in the United States; Macy, Jesse, Party Organization and Machinery ; Commons, J. E., Proportional Representation; Hoag, C. G., Bftectice Voting; Proportional Rep- resentation Review (Quarterly). 'Draper Manuscripts, U, Vol. 5, No. 166. =Const. 1796, I. 5 ; III, 3 ; XI, 5. The votes for governor were to be trans- mitted to the legislature — II, 2. STATE CONSTITUTION-MAKING. 119 — groups of citizens having similar wishes in regard to gov- ernmental activities — ^have arisen and habitually place before the people at elections candidates and programs which their influential members deem most in accord with the needs of the state or most likely to meet with a favorable reception by the voters. The increasing greatness of the interests at stake in elections has led to countless abuses, such as bribery and intim- idation of voters, and the increasing diflSculty of agreeing upon issues and candidates has tended to make their selection the highly specialized business of a few party agents. To prevent the continuation of abuses and provide methods by which a complex electorate may continue to express its will, various complex restrictions and requirements have been placed in the constitutions and numerous statutory election laws of tome-like proportions have been enacted by the legislatures." Nomination systems have been legalized and the manner of con- ducting campaigns and elections minutely prescribed and the ascertainment of results provided for. Effort will be made in this chapter to present some account of the constitutional pro- visions concerning these smbjects. Nominations for office are made in several different ways. 89. Methods of Where the constituency is too large for the voters of a party Nomination, to come together in a meeting and propose candidates for office it is commonly divided into districts of suitable size in which the voters may assemble and choose delegates who will convene in some central place and, as representatives of the whole body of voters, make nominations for the office to be filled. Disre- gard by the nominating conventions of the wishes of their con- stituents has led to efforts on the part of the latter to devise more direct methods of naming candidates. These efforts have resulted chiefly in nomination by petition and primary elec- tions. According to the first method, if a certain small percent- age of the electors sign a petition to that effect a candidate's name is placed upon the official ballot. According to the second method, candidates, usually named by petition, are voted upon by the memhers of the party throughout the whole constituency and the party candidate chosen. "That o( N. T., e. g., contains more than 200 printed octavo pages (Consoli- dated Laws of New York, 1909, pp. 801-1029.) 120 STATE CONSTITUTION-MAKING, Provisions concerning nominations or nominating conven- tions are found in several constitutions. Louisiana and Missis- sippi/" for instance, declare that tlie legislature shall enact laws to secure fairness in naming party candidates w'hether in convention or otherwise, and in the latter only registered voters can take part in nominating. In Alabama^ the qualifications for voting or participating in any convention, mass meeting or other method of party action are the same as those pre- scribed by the constitujtion for voting at elections. California^ expressly authorizes laws relating' to the election of delegates to conventions. In Ohio' delegates to national conventions must be chosen by direct vote of the electors ; the ballots are to state the delegates' first and second choices among the presi- dential candidates; but the name of a presidential candidate must not be used without his written authority. Nomination by petition is authorized in Ohio and Oklahoma* and the general application of the principles of proportional representation and preferential voting may be made to nomina- tions by political parties in Oregon.^ As in the case of other state regulations of party nomina- 90. tions — originally left entirely to party control, — provisions for Primaries. direct primariesi* are usually made by legislative enactment. So important has this reform been considered in some states, however, that constitution-makers have not felt justified in utterly neglecting it. Thus in Oklahoma' the legislature is required to enact laws for a mandatory primary system, for state, district, county and municipal oflScers, including United States ^nators, but the right to place non-partisan candidates on the ballot by petition is allowed. In California' the legislature must enact a direct primary law and must determine conditions for participation of electors, parties or organizations in primaries, which pri- maries it may make "mandatory and obligatory." In Alabama,' "215, 200; XII, 247. See also Va. II, 35. >VIII, 183. =11, 25^. »V, 7. *V, 7 ; III, 5. »II, 16. 'Likewise often held by voluntary party action. 'Ill, 5. Similarly, Ariz. VII, 10. »II, 2J^. See also Ohio, V, 7. «VIII, 190. STATE CONSTITUTION-MAKING. 121 on the other hand, the legislature cannot make primaries com- pulsory. In several states" it is specified that only registered ^electors may take part in primaries.^ In over half of the states the legislatures have passed direct primary laws — which, inci- ■dentally, legalize political parties and subject them to state ■control.^ The reason underlying the very earnest and vigorous efforts' that have been made to secure direct primary nominations is the increased popular control which such a method promises. A party caucus or nominating convention, say the proponents of direct primaries, is almost invariably controlled by men who do not represent the party. The rank and file of the party should control its nominations, hence the direct primary is simply a measure of democracy within the party.* President Wilson has said, I want the people to come in and take possession of their own premises ; for I hold that the government belongs to tfhe people, and that they have a right to that intimate access to it which will determine every turn of its policy." Surely no means of controlling a government is more elemen- tary than the selection of oflScers. Direct primaries propose to lessen machine control by carrying opportunity for popular influence and control a little farther back, a little nearer the beginning of the process of election. On the other hand, it is widely argued that electorates are too apathetic to take advantage of such an opportunity for con- trol. Indeed, the argument perhaps most forcefully advanced against direct primaries is not only the increased complication of election machinery which they entail but also the increased number of elections with which they burden an already election- "Ala., 183; La., 200; Va., II, 35. iFor other regulations see — Ala. VIII, 182, 190 ; Ariz. VII, 14 ; Cal. II, 25^ ; Del. V, 9; La. 201, 215; Miss. XII, 247; S. C. II, 10; Va. II, 36. ^See Dealey, Orowth of American State Constitutions, 158-9. Under Its police power a state may regulate primaries voluntarily held by parties. See also Young, The New American Government and Its Work, 306. Including those en- forced merely by party rules direct primaries are held in 38 states. "Most notably that of Goyernor Hughes of New Tork. *See McCarthy, Charles, — The Wisconsin Idea, p. 88^ seq.; Relnsch, Paul S., Readings in American State Government, 93-103, 3.83, 394, 399-404, 404, 421 ; Beard, C. A., American Government and Politics (1910 Ed.) — 693, acq. 'The New Freedom, 77. 122 STATE CONSTITUTION-MAKING. ridden people. Furthermore, it is said, they will not greatly lessen machine control, for the machine will dictate the names to be placed upon the primary ticket just as it does the names of the candidates to run in the final election. Concerning the manner of conducting campaigns an occa- 91. sional constitutional provision is found. Thus in Arizona* the Conduct of Campaigns, legislature must provide for publicity of contributions both be- fore and after election and contributions by corporations or- ganized or doing business in the state are prohibited. In Vir- ginia^ the legislature may add disqualification for ofiSce-holding to the other penalties upon those violating such provisions.* These so-called corrupt practices acts are among the widely- advocated reform measures of the day and have already been widely adopted." They are expressly required' or permitted^ by three constitutions. Numerous other states require laws to protect the purity' or regularity* of elections and to prevent abuses of the elective franchise." Fraud ° and bribery^ have long been expressly provided against. In Kentucky^ candidates are expressly made responsible for bribery by their agents and corporations convicted of bribery are liable to forfeiture of charter or the right to do business in the state. In Maryland" the legislature may remove all pen- alties from the vote-seller so as to place penalties for purchase of votes on the vote-buyer alone. In Alabama' paying one's poll tax to influence his vote is expressly made bribery. Free- dom of elections is guaranteed by about two-thirds of the con- stitutions.^ Fifteen constitutions^ prescribe that elections shall or ought to be equal. «VII, 16 ; XIV, 18. 'II, 3G. sSee also Pa. VIII, 9. 'e. g., Ore. >W. Va., IV, 11. 2Del. V, 1 ; R. I. II, 6. "e. !J., Mich III, 8; Tenn. IV, 1. 'Va. II, 36. =e. g., Colo. VII, 11; Mont. IX, 9. "See Del. V, 1 ; OWa. Ill, 6 ; Pa. VIII, 9, 14 ; R. I. II, 6 ; Tex. VI, 4 : W. Va IV, 11. 'See, e. g., Cal. XX, 11 ; Tenn. X, 3 ; Tex. XVI, 2. >150, 151, 155. "I, 3. (Amendment 1913.) iVIII, 95. =e. (J., Ind. II, 1 ; Tenn. I, 5, IV, 1 ; Wash. I, 19. »e. g., Ind. II, 1 ; Mass. Pt. I, 9 ; Pt. II, ch. I, see. II, 2 ; Tenn. I, 5 ; Wyo. 1, 27. STATE CONSTITUTION-MAKING. 123 More than half of the constitutions contain provisions relat- uglfg^ration ing to the registration of voters prior to election. They may be mandates that the legislature shall enact such laws,* or merely permission to pass them f or they may indicate to some extent the requirements of the laws contemplated — for instance uniformity,® annual registration,' or registration for cities above a certain size.* In New York^ registration may not be required for town and village elections except by express law. Permanent registration for persons having specified quali- fications is prescribed in a few states in connection with their efforts to exclude negro voters.^ No law may be passed in Ar- kansas' .to make the right to vote depend on previous registra- tion, nor in West Virginia* to authorize or establish a board or court of registration. Application for registration is regulated in a few states,^ and occasionally an appeal from rulings of the election ofificers is provided for.® In South Carolina' registration is ordinarily decennial; but for persons not previously registered under the constitution, annual; it must be completed thirty days before election. In New York' completion must be at least ten days before election, and in Mississippi" four months.^ The making of corrections is provided for in several states.^ Registration is conclusive evidence to the judges of election of the right to vote in Maryland; also in Delaware unless the voter is disqualified for giving or taking a bribe.' Persons who will at election time be qualified electors as to age and resi- de, g., Ind. II, 14. "e. g., Mont. IX, 9. •Del. V, 4. ■'e. g., Va. II, IS, 25. 'e. g., Ky. 147, 155 ; Mo. VIII, 5 ; Tex. VI, 4 ; Wash. VI, 7. See also Pa. VIII, I, 7; wis. Ill, 1. Ill, 4. 'Supra, eh. VI. Ala. VIII, 180, 187, 190 ; La. 197 (5) ; N. C. VI, 4 ; S. C. II, 4; Va. II, 19. =111, 2. *VI, 43. »Ala. VIII, 188; Del. V, 4; La. 197 (3), (4) ; Va. II, 20; Va. requires official record of questions to and answers of applicant to be kept. =See Del. V, 4 ; La. 201, 218 ; Miss. XII, 251 ; S. C. II, 5 ; Va. II, 25. 'II, 4, 11. *II, 4. »XII, 251. 'See also Del. V, 4 ; La. 213 ; R. I. Amend. XI, 11. "Del. V, 4 ; La. 213; Miss. XII, 251 (any time before election). See also Md. I, 5. 'I, 5 ; V, 4. Tbe correction of illegal registration is occasionally authorized. — La. 201 ; Miss. XII, 248 ; S. C. II, 5 ; Va. II, 25 ; Wash. VI, 1. 124 STATE CONSTITUTION-MAKING. dence are occasionally guaranteed the right to register.* Reg- istration boards are required to be bipartisan in New Mexico and New York.° A majority of the constitutions fix dates for elections — usu- 93 ally the first Tuesday after the first Monday in NoYember/ but Regulations, also in Other months/ or as the legislature shall prescribe.* According to the Maryland and North Carolina constitutions' elections ought to be frequent, the latter adding "for redress of grievances and for amending and strengthening laws." About half of the states prescribe the frequency of elections — annual/ bienniaP or quadrennial/ often stating the purpose, general or specific. Election districts are given notice or regulation in a few constitutions.* North. Dakota' has the unique provision that the legislature may prescribe penalties for failing, neglecting or refusing to vote at a general election. In several states the legislature may* or must ^ prescribe oaths for electors. The place of election, when prescribed/ must usTially be in the election district or precinct of the voter's residence. In twenty-three states* desig- nation of the place by local or special law is prohibited. Election officers are recognized in a number of constitu- tions,^ some of which contain fairly elaborate clauses. In Pennsylvania district election boards shall consist of a judge and two inspectors, who shall be chosen annually by the citizens. Each elector shall have the «La. 213 ; Miss. XII, 251 ; S. C. II, 11 ; Va. II, 26. »VII, 1; II, 6. 'e. g. All general elections to be held on Tuesday after first Monday In No- vember, except township elections to be held at time prescribed by law and election of .iudges of courts of general or appellate jurisdiction to be held at time prescribed by legislature when no other officer shall be voted for (Ind. i;, 14). 'e. g., Zia.. 206, 207 ; Me. II, 4 ; Tenn. VII, 5. sOkla. Ill, 4. »D. B. 7; I, 28. iColo. VII, 7 ; Ky. 148, 155, — Not more than one election annually to be held in state or any city, town, district or county except as otherwise provided in constitution ; not to apply to school district elections. See also Conn. Amend. XXXII =6. g., Del. V, 1 ; O. XVII, 1 ; Wash. VI, 8. 8La. 206, 207 ; Miss. IV, 102, XII, 252. See Wash. VI, 8. be by ballot, which is unqualifiedly prescribed in BaUot. two-thirds of the states,* and with exceptions in ten others.' The Oregon clause^ is that voting shall be open or viva voce until the legislature directs otherwise. There are a number of constitutional directions concerning the form of the ballot, as H. g., Fla. Ill, 20 ; 111. II, 22 ; Ind. IV, 22. »e. g., Ala. I, 33 ; VIII, 190 ; Colo. XX, 6 ; Me. IV, Pt. I, 5 ; Mass. Amend. II ; Tex. XVI, 2. *e. g., Ind. IV, 22. =Ga. II, 5 ; Ky. 154, 155 ; La. 205. See Ala. VIII, 191, — ^Duty of legislature to pass adequate laws to protect against evils arising from use at elections. "Ala. VIII, 185 ; Del. V, 3 ; Ga. II, 1 ; N. Y. II, 2 ; Pa. VIII, 8. 'e. g., Tenn. IV, 3. »e. g., Ind. II, 13 ; Tenn. IV, 4. •Ariz. VII, 1 ; Cal. II, 5 ; Conn. VI, 7 ; Amend. VI, XXXIII ; Ky. 147, 155 ; La. 212 ; Mich. Ill, 7 ; Minn. VII, 6 ; N. Y. II, 5 ; Pa. VIII, 4 ; Wis. Ill, 3. Ill, 15. 126 STATE CONSTITUTION-MAKING. that it must be oflacially printed,^ written or printed/ written,* uniform/ open, sealed or secret according to the voter's choice," or as the legislature shall direct/ To these various constitu- tional mandates an occasional exception is allowed. Arizona* prohibits the requirement of a fee for printing the name of a candidate on the official ballot. Louisiana" allows the names and devices of independent candidates to be printed upon the ballot ; Virginia' prohibits distinguishing marks or symbols. In three states' ballots must toe numbered by the election offi- cers in the order received from the voters. Three constitutions^ require that the voters shall be furnished with official ballots. There are two types of ballots actually in use which may be said to be competing for popular favor,* — the so-called party- column ballot and the Massachusetts or office-column ballot. The distinguishing feature of the first is the listing of all of the nomi- nees of the same party, no matter for what office, in a single column, under a party designation, and the provision that a single mark by the voter will cast a ballot for the entire — straight party — ticket. The ignorant voter may distinguish the party emblem^ and the voter who, discriminately or indiscrim- inately, wishes to obey his party's dictates from first to last need not trouble himself to vote for each separate nominee. The Massachusetts ballot, on the other hand, groups the candidates according to offices and requires that a separate mark be placed beside the name of the voter's choice among the nominees for each office. Strictly there should be no party emblems, but in practice they are by no means unknown. The elimination of partisan designations — even the party names — ^from ballots seems to be growing in favor for the reason that it makes less practicable the unintelligent vote of party henchmen at the be- ^La. 212. 'Conn. VI, 7; Amends. VI, XXXIII. «Me. II, 1. "Va. II, 28. «W. Va. IV, 2. 'Okla. Ill, 6. 'VII, 14. Similarly, Wyo., VI, Suffrage 11. »212. Ill, 28. ^Ark. Ill, 3 ; Colo. VII, 8 ; Mo. VIII, .S ; Legislature may provide for same, — S. D. VII, 3 ; Tex. VI, 4. "Ky. 147, 155; La. 212; (e.\ceptions). Wyo. VI, Suffrage 11. <0n tlids point see. Young, J. T., The New American Government and its Work, p. 307. See also Garner, J. W., Government in the United States, pp. 135, seq.; Beard, C. A., American Oovernment and Politics (1910 Ed.), 675, seq. 'e. g.j a star or an eagle — used by Democrats and Republicans, respectively. In New tork City. STATE CONSTITUTION-MAKING. 127 best of a party boss and tends to encourage careful discrimina- tion in choosing among the candidates of the several parties for each office. In several states elections are specifically required to be open and not secret,® and secrecy of the ballot is provided for by at least fifteen constitutions.' Writing new names on the bal- lot is specifically allowed in Louisiana, Virginia and Wyom- ing.* In Virginia" the preparation and deposit of the ballot must be without aid unless the voter is physically unable to accomplish it or was registered before 1904.^ In California^ different methods of voting may be authorized for different parts of the state.^ During election in Virginia* ballot boxes must be kept in public view and their opening must not be in secret. Mechani- cal devices for voting or voting machines are authorized in a few states.^ Various directions regarding the counting of ballots are 95, , . ^ '^ c Ascertaining found, — ^for instance, that it must not be secret,® or that it the Election ' ' ' Results. must be by certain specified oflScials.' The official to whom re- turns from elections must in due course be sent is sometimes specified.* 'Colo. II, 5 ; Mo. II, 9 ; Mont. Ill, 5 ; N. M. II, 8 ; S. C. I, 10, II, 1 ; Wyo. I, 27. 'e. g., Ky. 147, 155 ; N. Y. II, 5 ; Pa. VIII, 4. »212; II, 28; VI, Suffrage 11. »II, 21. iThls, like several other clauses already cited in southern constitutions, is part of the propaganda to discourage voting by negroes. It may, however, be meant simply to procure secrecy and make corruption less practicable. In Ky. (147, 155), — ballots are to be marked in private at polls and then and there deposited ; legislature to provide that illiterate, blind and disabled electors may have ballots marked for them ; not to apply to school elections. ni, 6 ; see also XX, 13 ; Ohio X, 4. "Minn. (Ill, 33) and Nebr. (Ill, 15) forbid regulation of local voting by local or special laws. ■•II, 27, see also Del. V, 6. "Cal. II, 6 ; Colo. VII, 8 ; Conn. Amend. XXXIII ; Mass. Amend. XXXVIII ; Utah IV, 8; Va. II, 37. «La. 203 ; S.. C. II, 1 ; Va. II, 27. 'Del. V, 6 (superior court) ; Me. IV, Pt. I, 5 (in cities, aldermen) ; Mich. VI, 20 (for governor, etc. ; ex officio state board) ; N. M. XX, 7 (county and state boards) ; Nev. V, 4 (for state oflcers, highest court). See also Ark. Ill, 11 ; Wyo. VI Suffrage 11. 'e. g.. Miss., IV, 114. Plurality choice, which obtains almost invariably, is sometimes specifically allowed ; see Ariz. VII, 7 ; Fla. XVI, 8 ; Md. IV, 11 ; Mass. Amend. XIV; Mont. IX, 13; Nev. XV, 14; N. M. VII, 5 ; R. I. Amend. X, 1. Thus California (XX, 13) provides that "a plurality of the votes given at any election shall constitute a choice where not otherwise directed in this Constitu- tion ; provided, that it shall be competent in all charters of cities, counties or cities and counties framed under the authority of this Constitution to provide the manner in which their respective elective oiBcers may be elected and to pre- scribe a higher proportion of the vote therefor ; and provided, also, that it shall be competent for the Legislature by general law to provide the manner in which officers of municipalities organized or Incorporated under general laws may be elected and to prescribe a higher proportion of the vote therefor." 128 STATE CONSTITUTION-MAKING. 96. Securing tlie Vote for Employee and Absentees. 97. Proportional Representa- tion and Preferential Voting. Trials of contested elections must be by the court of law at the domicile of the defendant in case of all oflQcers except the- governor and lieutenant-governor in Louisiana," and analogous provisions are found in other states/ In trial the testimony- of a witness must sometimes be compelled and immunity, except in case of perjury, allowed.^ Tie votes^ for governor must reg- ularly be decided by joint ballot of the two houses of the legis- lature and sometimes tie votes for other state oflftcers must like- wise be determined. In Maryland* a new election must be or- dered by the governor. In Arizona" certificates of election of state oflflcers must be issued by the secretary of state in the- manner prescribed by law.° In Kentucky^ the legislature must provide that all employers allow employes, under reasonable regulations, at least four hours on election day to vote. In several states the constitutions per- mit or require the legislatures to provide means whereby ab- sent electors may vote — especially electors absent in military service.' In Michigan" commercial travelers and students ab- sent from their township or ward or from the state cannot be deprived of the vote, nor can members of the legislature while attending sessions. The legislature must provide for the time,, manner and place of voting and for the canvass and return of such votes. The numerous and detailed provisions which show the ef- forts that have been made to secure fair play under the present method of selecting officials stand in rather interesting con- trast to the neglect of the method itself. Almost invariably in American elections the decision is rendered according to the plurality of the votes cast. If there are ten candidates for a particular office one may be elected by one more than one-tenth »209. iSee Colo VII, 12 ; Del. V, 6 ; Mo. VIII, 9 ; Pa. VIII, 17. See also Ark. VII, 52. ''Ark. Ill, 9 ; Colo. VII, 9 ; La. 216 ; Pa. VIII, 10. See also Ala. VIII, 189. 'e. jr.— Del. Ill, 3 ; see also Mich. XVI, 4 ; Nev. V, 4 ; N. M. V, 2 ; Okla. VI, 5. *XV, 4. There are specified exceptions, »V, 11. "In regard to certiflcates of election, see also Del. V, 6 ; Ky. 153, 155 ; Md. IV, 11 ', R. I. II, 6. '148, 155. Does not apply to school elections. "Conn. Amend. XIII ; Kan. V, 3 ; Me. II, 4 ; IX, 12 : Mich. VII, 1 : Nebr VII 3 ; Nev. II, 3 ; N. J. II, 1 ; N. Y. II, 1 ; Pa. VIII, 6 ; R. I. Amend. IV : S D Vl' 19; Utah I, 17. . . , o. u. VI, »III, 1. (Amend., 1914.) STATE CONSTITUTION-MAKING. 129 of the votes cast, because it is possible that one more than one- tenth of the votes may be more than any one else receives. If there are more than two candidates it is probaible that the man elected will not be the choice of a majority of the voters. Such a system is undemocratic in so far as it makes possible minority rule. According to Mr. C. G. Hoag' there are two distinct objects to be carried out by voting: (1) to make decisions and (2) to choose representative bodies who are capable of making deci- sions on behalf of the voters. To carry out the first object, he says, what is obviously required by tbe fundamental principles of democracy is majority voting, that is, a system that will range the majority of the voters concerned against the minority. What is wanted to carry out the latter object is a "condensing system" that will insure proportional representation. Propor- tional representation demands a representative body made up of members of different parties in numerical proportion to the voting strength of the parties in the entire electorate repre- sented.^ To realize this sort of representation in practice and also to make feasible the requirement that a candidate must have at least a majority of the votes cast in order to be elected to any office, various methods of preferential voting have been devised. A preferential ballot allows the voter to express not only his first choice among the candidates for office but also his second and additional choices. If no candidate receives a majority of first choice votes, the additional choices determine, according to specified rules, who ^all be elected. Preferential voting is authorized by the constitutions of Colorado, Ohio and Oregon. Colorado authorizes it only for cities. Ohio' requires the passage of a law providing it for lop. elt., 4-5. ^In 1912, Judging by the vote for presidential electors there were in the coun- try 6,293,019 Democrats, 4,119,907 Progressives, 3,484,956 Republicans and 901,- 873 Socialists. Yet the House of Representatives elected consisted of 290 Demo- crats, 129 Republicans, 18 Progressives and no Socialists. If the vote for presi- dent was indicative of party division in legislative matters, these numbers should have been 186, 94, 124 and 31, respectively. »V, 7. g 130 STATE CONSTITUTION-MAKING. United States Senators. Oregon* provides for both preferential voting and proportional representation as follows, — In all elections authorized by this Constitution until otherwise provided by law. the person or persons receiving the highest number of votes shall be declared elected, but provisions may be made by law for elections by equal proportional representation of all the voters for every office which is filled by the election of two or more persons whose official duties, rights and powers are equal and concurrent. Every qualified elector resident in his precinct and registered as may be required by law, may vote for one person under the title for each office. Provision may be made by law for the voter's direct or indirect expression of his first, second or additional choices among the candidates for any office. For an office which is filled by the election of one person it may be required by law that the person elected shall be the final choice of a majority of the electors voting for candidates for that office. These principles may be applied by law to nominations by political parties and organiza- tions.'' In order to obtain proportional representation, to guarantee that the principles for which both minority and majority parties stand may receive adequate consideration in the enactment of the laws under which all the people must live, several methods of voting have been proposed. The most perfect of these is the Hare System." Its essential feature is the elimination of geo- graphical districts for each representative and its provision for each representative a unanimous constituency of voters who think as he does but may be scattered throughout larger terri- tory than a single representative district. Unanimity of will instead of proximity of residence determines the constituency. The Hare System was first used in the United States in the 1915 election for members of the council of the little Ohio city of Ashtabula.'^ It is, of course, subject to slight changes, but in general is operated in somewhat this fashion, — Suppose that there are three legislators to be elected from the territory in question. The number of persons voting is first ascertained «II, 16. 'See State v. Portland, 133 Pacific, 62. Such laws have been passed In some states without constitutional authorization. In Ferrell v. Hickman, 147 N. W., 815, It was declared the preferential ballot provided for in the Duluth charter requiring the voter to express his first choice was not an Interference with the right of suffrage. But In Brown v. Smallipood, 153 N. W., 593, the expression of second and third choices was declared to deprive the voters of equal suffrage. See Orpen v. Watson, 93 Atlantic. 853. "Named for its inventor, Thomas Hare ; Independently devised by M. Andree. 'About 20,000 inhabitants. See Review of Revieivs, LII, 653. STATE CONSTITUTION-MAKING. 131 and one-third of that number is the number of Totes necessary to elect because each third of the voters of the entire county should have one of the three representatives. If one-third agree upon a particular candidate they become his "unanimous con- stituency." If the voters number 1,000 and the persons to be elected three, 334 flrst-choice votes will elect. Each voter is allowed a certain number of choices, first, second, third, etc. Whenever one's first choice has already received enough votes to be elected, his vote is counted for his second choice, and so on. If one's first choice candidate has so few votes as to make elec- tion hopeless, the candidate is accordingly eliminated, but the voter's ballot is not wasted, for it is transferred to the first of his additional choices whom it can benefit. The chief practical difficulty with this scheme is the neces- sity of assembling all ballots at one place in order to count them. It would be extremely difflcult to use it in elections in which the voters of an entire state take part, but by dividing the state into districts each large enough to be apportioned sev- eral representatives, the Hare System is entirely practicable for the election of legislatures. Its use is, of course, limited to the election of representative bodies from districts having several members apportioned to each.' Minority representation can be obtained, also, by the very simple process called cumulative voting.* Where it is allowed, if the district has three representatives in the lower house of the legislature a minority party, controlling one- third of the votes, can cast all of its votes for one candidate and so be cer- tain to obtain representation. The trouble with the system is that it does more than enough : the members of another party, with two-thirds of the votes may by "plumping" votes for the most popular of their candidates, give him far more than enough to elect while leaving the others with insuflScient 'The simplest proportional system for electing a representative body is the provision that members shall be elected at large and that each voter shall vote for only one. The requisite number of members having the higest votes are elected. This method is used for electing the Japanese house of representatives. Another interesting method is the grouping of candidates of similar political beliefs into lists. A vote for any one name In a list counts (1) in determining the number of candidates who shall be chosen from the list and (2) which can- didates in the lists shall be chosen. The so-called Gove or Schedule system par- takes of some of the characteristics of both the Hare and list systems. 'Authorized for 111. House of Representatives — Const. IV, 7 and 8. 132 STATE CONSTITUTION-MAKING. votes. While securing minority representation it may deprive the majority of its proportional number of representatives. This waste of voting strength is obviated and majority elec- tion made more likely by means of preferential voting. The simplest form of preferential voting is known as the Bucklin System^ and is in use in Cleveland, Portland (Oregon), Spo- kane, and other American cities. Generally speaking, its bal- lots provide after each candidate's name three columns, for marks of first, second and additional choices. If no candidate has an absolute majority of the first choice votes, the second choices are counted and added to the vote of each candidate and, if necessary, the third choice votes and so on. As a method of voting this is simple and easily operated, but a person by expressing a second choice runs the risk of having it count against his first choice candidate if the latter does not get a majority of all the first choice votes. ^ This defect is remedied by the Nansen System,^ under which a first choice is given more credit than a second throughout the entire count, a second more than a third, and so forth. Then, in accordance with simple rules formulated ... on the basis of a complete mathe- matical solution of the problem, those candidates whose total credits show them to be unquestionably inferior to other candidates in the opinion of the voters ks indicated on the ballots are successively dropped out as defeated until the candidate preferred to any other is left and declared elected.* 'Named for .Tames H. Bucklin of Grand Junction, Col., under whose leadership it was adopted in that city. ^Somewhat similar is the Ware System — named after its proposer, a Harvard professor. "The voter is allowed to Indicate his preferences among the candi- dates — as many or as few as he pleases — by putting the figure 1 opposite the name of his first choice, the figure 2 opposite the name of his second choice, and so on. 'The first count Is only of the flrst-ohoice votes. If no candidate has a majority, the lowest candidate is excluded and Ms votes only are scrutinized again and added to the votes of the other candidates as the preferences indicate. The candidates are thus successively excluded until only two are left, of whom tho higher will have a majority vote [as between the two left] and be elected.' " — Hoag, op. cit. 6. A modified form is used in Wis. and Minn, primary elections. *Named for its inventor, a professor in the University of Jlelbourne (Aus- tralia). ■■Hoag, op. clt. 8, lb. 9. — The ultimate criterion of the correctness of a ma- jority system of voting would seem to be that clearly defined by Condorcet in 1785 in a passage translated as follows ; There exists but one rigorous method of ascertaining the wish of a majority in an election. It consists in taking a vote on the respective merits of 8,11 the candidates compared two by two. This can be deduced from the lists upon which each elector has written their names in order of merit, — Oeuvres de Con- dorcet, Vol. XV, pp. 28, 29; ed. 1804. STATE CONSTITUTION-MAKING. 133 All of the various requirements concerning elections have, of course, one general object, that of making elections more per- fect means for ascertaining the true popular will.^ As has been q^A^ ^f seen, this abject is sought in numerous ways. But whether (1) ^^^^'"'^ guarding against the undue influence of a few politicians, as in the case of the direct primary laws and other methods of regulating nominations, or (2) seeking to prevent dishonesty, as in the case of the corrupt practices acts and the provisions governing registration, the holding of elections and canvassing the votes, or else (3) seeking to encourage discrimination and discourage blind partisanship in voting, and to enable the voters to elect as nearly as possible their true choices among candi- dates and parties, as in the case of the provisions for the Aus- tralian Ballot and for preferential voting and proportional rep- resentation; the purpose of election laws, constitutional and statutory, remains the same. The electorate must govern through the polls and only as the polls furnish it an adequate method of expression can its government measure up to its ideals." TENNESSEE NOTE. — The constitution of 1870 like tliat of 1796, confines its election requirements to freedom and eqiuality and voting by ballot. The days for holding elections are not the same as in the first constitu- tion. The elections for members of the legislature and governor must be held on the first Tuesday after the first Monday in November in the even numbered years ; for judicial and county officers on the first Thurs- day in August.' The election laws of the state have been compiled and published in two pamphlets obtainable at the office of the Secretary of State.* The administration of the election laws is entrusted to a bi-partisan state board of elections" consisting of three members, appointed by joint vote "Rgistration requirements intended to render certain classes of voters eligible must be excepted. 'Other Interesting efforts look to the separation of national, state and local Issues by separating in time elections for national, state and local officials — already much in practice as between the latter two. The underlying idea is that, since the issues are in no wise connected, candidates for one set of offices ought not to be allowed to ride into power on the popularity of those of another through the vote of the undiscrlminating. — See Proceedings of Academy of Po- litical Science, V, p. 41, — article by Albert Shaw. It is often suggested that the schools should be used as voting places — for instance by Miss Margaret Wil- son in a speech at Milwaukee, Nov. 5, 1915. {Knowville Sentinel, ib.) To per- sons who have voted in the places usually selected for holding elections, the pro- priety of this suggestion needs no comment. 'I, S; II, 7 ; III, 2 ; VII, 5 ; IV, 4 ; IV, 3— electors guaranteed privileges from arrest to and from polls. *The compilation is not entirely complete. "Acts of 1907, ch. 435, 436 ; Acts of 1909, ch. 103, 104. 134 STATE CONSTITUTION-MAKING. of bottti houses of the legislature foi- terms of six years. The board ap- points three cominissiouers of election in each of the ninety-six coun- ties of the state, two from the ma.iority and one from the minority party, who in turn appoint the election otBeers of each voting place. Registration is a prerequisite to voting in the larger counties and districts. Different requirements as to ballots obtain in the larger and smaller counties and districts. For the former a regulation Aus- tralian ballot, printed and distributed at public expense, is prescribed. For the latter the requirement is simply that the ballot voted must be of plain white paper, three by seven inches in size, that it shall have the names of the offices and candidates plainly written or printed and con- tain no insignia." Primary elections, to be held at the option of political parties, are recognized and protected by law. An act making them compulsory for nominations to certain offices, passed in 1909, was, however, declared void by the supreme count.' An interesting side-light is thrown upon the question of the need for some method of securing proportional representation in the legislature by the party vote in 1914. The Democratic candidate fpr governor re- ceived 137,656 votes, the Republican candidate 116,677.^ Of the senators elected twenty-three were Democrats, seven were Republicans and three styled themselves Independents. Leaving the Independents out of the question, in order that the senate might represent proportionally the Democratic and Republican votes as numbered by the vote for governor, there should have been sixteen Democratic and fourteen Republican mem- bers." "Shannon's Code, 1231, seg., 1259-60. In Cook v. f^tate, flO Tenn., 407 (declar- ing valid the Dortch Law, Acts of 1890, 1st extra session, ch. 24) the court held that election restrictions may be made more stringent for larger places than for the rest of the state. 'Acts of 1909, ch. 102. In Ledgerwood v. Pitts, 122 Tenn., 570, it was de- clared that the passage of such law was within the power of the legislature, but that the act in question was void because (1) Us exclusion of all judicial oflS- cers except county judges was an arbitrary classification ; (2) the title of com- pulsory prijnary elections was not broad enough to include provisions for state conventions to select party presidential electors and delegates to national con- ventions, and (3) the act required the payment of fees as a condition of becom- ing a candidate. ^The socialist candidate, 1,671 votes. The Republican candidate had been endorsed by a convention of Independent Democrats. =An interesting article on proportional representation, bv Mr. Geo. N Till- man, appeared in the Nashville Banner, January 13, 1916. STATE CONSTITUTION-MAKING. 135 CHAPTER VIII. Organization of the State Government* The first thing that a people entering upon the duties of self-government usually determine is the organization of their governing agency. What manner of government will they set up, how will they divide and group its various functions, what 99- a jr 7 The First ofiflcials will they employ; what powers will they confer, and state con- what restrictions will they place upon these officials? Such questions inevitably confronted the first constitution-makers of the newly-independent commonwealths of the American Union. In answering them they did not attempt to formulate last- ing principles upon which to fix a type of government, but sim- ply sought to make "provisional arrangements to meet a casual emergency."^ The first state constitutions were, indeed, a sort of act of settlement to provide some basis for action with the expectation that poUtical experience would eventually bring govern- mental institutions into accord with the needs of the people." They were preeminently products of the thought and habits of the later eighteenth century and the particular organization of government which they provided may be considered in one sense an historical accident — though, like other accidents of history, not without its perfectly reasonable explanation. Some account of the influences which controlled the making of the early constitutions and some mention of the subsequent development of state government, as well as of present-day thought concerning governmental organization, forms a very important part of the study of state fundamental law. Two years after the American states declared their inde- loo. Turgot's pendence, the French economist and statesman Turgot, writ- criticism. 'General References: Bondy, Wm., Separation of Governmental Powers; Ford, H. J., The Rise and Growth of American Politics; Goodnow. F. J.. Politics and Administration; Haines, C. G., The American Doctrine of Judicial Supremacy ; Ostrogorski, M., Democracy and the Party System of the United States; Wilson, Woodrow, Congressional Government. Tord, H. J., The Reorganisation of State Government, Proceedings of Acad- emy of Political Science, III, 2, pp. 30 seq. 'lb. 136 STATE CONSTITUTION- MAKING. 101. The Doctrine of the Separation of Powers. ing to a friend in London, said concerning the state constitu- tions then being adopted, I see in the greatest number an unreasonable imitation of the usages of England. ... A house of representatives, a council, a governor, because England has a House of Commons, Lords, and a King. They undertake to balance these different authorities as if the same equilibrium of power which has been thought necessary to balance the enormous preponderance of royalty could be of any use in republics, formed upon the equality of all citizens, and as if every article which constitutes different bodies was not a source of divisions. By striving to escape imaginary dangers they have created real ones.' His ideal of government was a single assembly possessing all governmental powers." It was not to Turgot, however, but to his less perspicuous contemporary and fellow-countryman, Montesquieu,' that Amer- icans turned for their political philosophy. Founding his study upon an imperfect conception of the government of England, Montesquieu asserted, for the first time, that what is usually called the separation of governmental powers, that is to say, a fairly sharp constitutional distinction between the oflBcials per- forming the legislative, the executive and the judicial functions of government, is indispensable to the maintenance of civil liberty." When the legislative and executive powers are united in the same body, there can be no liberty, because apprehensions might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Furthermore, there is no liberty, if the judicial power be not separated from the legislative and executive. W«re it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the jvdge would then be the legislator. Were 'Quoted by H. L. Stimson, Proceedings of Academy of Political Science, V, 1, 23. "Bondy, op. elt., 12. Critics of the type of government being set up In America were not lacking on this side the Atlantic. For instance, Mercer of Maryland, In the convention of 1787 (Madison's Journal, Aug. 14), prophesied that American sovernments would become aristocracies unless connection should be established between the legislature and the executive. Otherwise the legisla- ture would prey upon the people. He proposed that the executive should have a council of members of both houses : — See Ford, H. J., In the Proceedings of the Academy of Political Science, III, 78 seq. 'Esprit dea Lois, (1748). i»Bondy, op. clt. 13. STATE CONSTITUTION-MAKING. 137 it joined to tbe executive power, the judge mlglit behave with the vio- lence of an oppressor. There would be an end of everything, were the same man or the same body, whether of nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals.' Of considerable influence, also, must have been the Commentaries of Blackstone, which appeared at the time of the American devolution, and contained conclusions similar to Montesquieu's. The analysis of government into three primary divisions is at least as old as Aristotle's Politics, which said that in every state there is a "general assembly deliberating upon public af- fairs," a "body of magistrates" and a "judiciary,"^ and various later political philosophers have written likewise, — notably John Locke, whose tripartite division was not, however, pre- cisely the same. The American statesmen were doubtless influenced more by 102. habit and the English models to which they were accustomed Thought and than by theoretical discussions. They had seen how the power the Latter of the crown, theoretically the center and source of power, was century. to some extent balanced over against the House of Lords ; and how both were balanced against the Commons ; more pertinently they had seen the power of their own British governors and their aristocratic councils checked by the ever-growing power of the popular assemblies — ^turbulent and often unreasoning, but resting upon the sound foundation of democracy. It was a day when individualism pervaded the thought of the learned and unlearned, when the people demanded not gov- ernmental assistance to gain their ends but that the govern- mental restrictions, by which the mistaken statesmen of the seventeenth and early eighteenth centuries had sought to build national commonwealths, should ibe abolished. The great eco- nomic thinkers' of the day were crying aloud for laisser-faire , — that the government should let the people alone and that in consequence the state would increase in prosperity. ^Montesquieu's meaning was not "that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as lUustarted by the example in his eye, can amount to no more than this ; that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free government are sub- verted." — Bondy, op. cit. 35-36. ^Bondy, op. cit- 12. "The greatest, Adam Smith, published his "Wealth of Nations" in 1776. 138 STATE CONSTITUTION-MAKING. 103. Governmental Activity Not Desired. 104. State Legislatures Entrusted ' with Most of Powers of Government. 105. Development of Doctrine of Separation of Powers. As a result, when Americans came to form governments of their own they constructed frameworks not with the idea of making a working executive organism or head of the body poli- tic designed to become an active agent for fulfilling the popular desires of a cooperative democratic society, but rather for the purpose of setting up rulers — a necessary evil — to protect them against foreign foes and domestic violence. These rulers might well be hedged about as much as possible lest, in doing anything else, they should develop into tyrants. The government seemed not a part of society but rather a rival against which the people must ever be on their guard. The habit of the time was to regard government as a thing distinct and apart from the people, so that popular liberty implied limitation of the sphere of gov- ernment.* It was only natural, therefore, that governments of diffused powers should be set up and that the "multiplicity of authorities," which Bagehot says would, save for American genius for politics and regard for law, have long ago brought our government to a bad end,° sbould be looked upon as its chief excellency. It must be noted, however, that the fundamental laws of the early days by no means always expressly sought the com- plete ideal of the separation of powers." The legislatures, which had popularly resisted the encroachments of foreign governors in colonial days were entrusted with most of the governmental power granted, though the independence of the courts, as guar- dians of individual rights, was not neglected.'^ But as time went on and the branches of the government developed their functions, the idea of the separation of powers became more firmly established. The courts early declared that they would, in making their decisions, ignore acts of the legis- lature which they deemed contrary to the constitution.* Sim- ilarly the executive officers consistently with the idea of the separation of powers, might have declared that they would not "Ford, H. J., in Proceedings of Academy of Political Science, III, 2, p. 34. "Quoted by Wilson, op. cit., p. 310. "Prior to 1787, of twelve commonwealth constitutions adopted, six — Ga., Md., Mass., N. H., N. C, Va., — inserted a clause declaring the existence of the three separate powers. 'There was no absence of rivalry between legislature and courts : see supra. p. 49. "Concerning the doctrine of judicial review, see, supra, p. 35 and n. 48 : infra, p. 238. STATE CONSTITUTION-MAKING. 139 enforce acts which they considered unconstitutional. Indeed, when Jefferson became President, he refused to enforce the Sedition Act passed during the administration of his predeces- sor, and drafted a message to Congress, in which he said, — Our country has thought proper to distribute the powers of its govern- ment among three equal and Independent authorities constituting each a check upon one or both of the others in all attempts to impair its constitution. To make each an effectual check it must have a right in cases which arise within the line of its proper function, where equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other departments. Concerning the Sedition Act, he added, 1 took that act into consideration, compared it with the Constitution, viewed it under every respect of which I thought it susceptible, and gave it all the attention which the magnitude of the case demanded. On mature deliberation, in the presence of the nation and under the solemn oath which binds me to them, and to my duty, I do declare that I hold that act to be in palpable and unqualified contradiction to the Constitution.' President Jackson^ held that the opinion of the Supreme Court ought not to control the co-ordinate authorities of this government. The Congress, the Executive and tjhe Court must each for itself be guided by its own opinion of the constitu- tion. Each public officer who takes an oath to supjwrt the constitution swears that he will support it as he understands it. It is as much the duty of the House of Representatives, of the Senate, and of the Presi- dent to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the -Supreme Judges, when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the Presi- dent is independent of both. American executives have not followed these precedents, but their mere suggestion indicates how the theory of the sepa- •This passage was struck out of the message after it had been signed by Jefferson, Dec. 8, 1801. It was discovered by Prof. Beard in, JefEerson's papers in the Congressional Library (1st Series. Vol. VIII, No. 252) and Is published in his Economic Origins of Jeffersonian Democracy, pp. 454-5. iMessage vetoing act establishing bank of the United States. 140 STATE CONSTITUTION-MAKING. 106. Separation of Powers In Present Con- stitutions. 107. Imperfect Realization of Separation of Powers In Practice. ration of powers tends in practice toward governmental paraly- sis and consequent anarchy. At the present time thirty-three of the states have a separate article briefly declaring that the powers of government pro- vided are divided into three distinct departments, legislative," executive and judicial, each of them intended, as the Arkansas constitution' expressly says "to be confided to a separate body of magistracy," and composed of persons, save in expressly per- mitted exceptions, who have no part in either of the. others.* Of these thirty-three articles, twenty are entitled "Distribution of Powers,"" whilst the others use various headings, as "Divi- sion of Powers"^ and "The Powers of Government.'" Seven constitutions mention distribution of powers in other articles* and the remaining eight leave the separation of powers into three divisions to be inferred from the fact that legislative, executive and judicial oflScers are expressly provided for and assigned powers and duties." So far as the form of the consti- tutions is concerned, the theoretical separation of powers is uni- versal. Practically, the separation of powers is non-existent in any absolute sense. The New Hampshire constitution,^ indeed, while declaring that the "three essential powers" ought to be kept separate, adds that this independence is to be only such as the nature of a free government will admit or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity. As a North Carolina judge once said, while maintaining firmly the essential powers belonging to each sphere of government, '^Sometimes executive is placed first In the order. »IV, 1. H6. sec. 2. 'e. g., Ariz. III. •Va. Ill; W. Va. V. 'Texas II. H. g., Tenn. II, 1. "See Dealey, American State OonetUiMons, 122. The Indiana provision may be cited as typical : "The powers of the Government are divided into three separate departments ; the Legislative, the Hxocutive (including the Administra- tive) , and the Judicial ; and no person charged with official duties under one of these departments shall exercise any of the functions of another except as in this Constitution expressly provided." (Art. III.) Mass. (Pt. I, XXX) provides similarly — "to the end It may be a government of laws and not of men " n, 37. STATE CONSTITUTION-MAKING. 141 the three co-ovdlnate parts constitute one brotherhood whose common trust requires mutual toleration of the occupancy of what seems to be a 'common because of vicinage,' bordering the domains of each.'' Thus the legislative function is at times assumed by both courts and executives, whose functions are not exempt from use by the legislature and by each other. The decrees of ex- pediency and custom are more potent than constitutional provi- sions declaring the existence of a separation of powers. The truth is that American governments have been guided by ex- pediency and have let logic trail behind ; — which is, indeed, the only logical course for governments to pursue. After reviewing carefully the various cases on the subject. Professor T. R. Powell has come to the conclusion that the doctrine of the separation of governmental powers, then, as a com- plete denial of the capacity of one department of government to exer- cise a kind of power assumed to belong peculiarly to one of the others, ■does not obtain in our public law beyond the confines of the printed page. But from the point of view of t!he individual whose rights are afCected by governmental action, it protects him in most of his dealings with governmental authority from the arbitrary power of a single official or group of officials, and secures to him in most instances the right not to be disturbed save by the concurrent action of two or more of the different departments among whom governmental power is appor- tioned. The eases in which such concurrence is not secured are con- fined to those spheres of governmental action Where individual privi- lege rather than individual right is at stake, or where the exigencies of government are deemed by the court so important that the Interest of the individual must not defeat the collective interesit of the whole people of wliom he is a part.' While, however, an attempt to show either in theory or practice a complete adherence to the principle of separation of powers in American state governments must prove a failure, it is certainly true that from a very early day they have required, or at least have had, extra-constitutional means to make them ^jje^'loiiygaj effective in action. Planned for inaction through separation of ^^^t^g^^f powers, state governments have achieved action through the i^^™°°'^»°| extra-legal agency of centralized power in the hands of the ir- Departments. ^Bynum, J., in Brown v. Turner, 70 N. C, 93 (1874). 'Separation of Powers, — Political Science Quarterly, XXVII, 215 (238) ; con- tinued. Vol. 28, p. 34. 142 STATE CONSTITUTION-MAKING. responsible, though not necessarily ill-meaning, leader of the political party in power — the "boss," as he is termed in political slang. The enormous burden which maintenance of this extra-legal responsi- bility has thrown upon the political party in the United States has given it a peculiar position in our political system, though its operations were almost neglected by our students until Mr. Bryce called attention to them.* Existent from the very beginning of the federal government, political parties became very much vitalized as the growth of economic interests in the country gave rise to demands for gov- ernmental action. By means of the party, for loyalty to which both governor and legislator might be induced, though separate, to act in unison, government was cemented into an agency that was workable, though withal awkward, indirect and full of friction. The sum of the entire matter is that the American political mind, which, notwithstanding the history of our written constitutions, both state and national, works directly toward its object, has devised the system of responsible party government and has created the party leader, or boss, who does exercise power, who does do somthing. He is responsible, however, to only a small proportion of the community ; and herein lies the danger of the situation. In other words, the complexity of our governmental methods, devised in the first instance to protect liberties and to prevent their sudden invasion, has produced official irresponsibility and has made the creation of a re- sponsible extra-oflBcial organization, or machine, a necessity." Original fear of an official aristocracy eventually caused us to play into the hands of an unofficial dictator.® Tui'got's prophetic statement has been fulfilled. Some writers still believe that the preservation of the tradi- tional form of our state government is necessary to the preserva- tion of liberty. Chief among these is Professor Burgess, who has just reiterated his sentiments in his book entitled The Re- conciliation of Oovemment with Liberty.'' To these writers the VII, 3, 7, 9, 11. Supreme Justices elected by districts. 154 ' iSTATE CONSTITUTION-MAKING. clerk, sheriff, county treasurer, register of deeds, county sur- veyor, superintendent of public instruction and three county commissioners.^ The constitutional oflScers to be elected in Connecticut are the members of the legislature, governor, lieutenant-governor, treasurer, secretary, comptroller, attorney-general, sheriffs, judges of probate and justices of the peace. ^ In Indiana the constitution requires the people to elect, besides the legislature, governor and lieutenant-governor, a sec- I'etary of state, a state auditor and a state treasurer, supreme court judges, by district, the clerk of the supreme court, and, locally, circuit judges, clerks of circuit courts, prosecuting at- torneys, sheriffs, coroners, surveyors, auditors, recorders, treas- urers and justices of the peace.* The voters of the entire state in Virginia must elect mem- bers of the lower house of the legislature, for two years and for four years senators, the governor, lieutenant-governor, secretary of the commonwealth, state treasurer, attorney general, snper- intendent of public instruction and commissioner of agricul- ture.' The county electorates must vote for a sheriff, attorney for the commonwealth, county court clerk and commissioners of revenue. In each district there must be elected one super- visor." City electorates must vote for clerks of court and an attorney for the commonwealth, where there exist certain kinds of municipal courts, and, in every city, councilmen, mayor, city treasurer and city sergeant.' Popular participation in the selection of any and every sort Reason for °^ official, indeed, continues to be, as it has long, remained, a t^e^Advocacy cherished principle in American political science. Its advocates Long Ballot, defend it with great tenacity of purpose against the arguments of the proponents of the short ballot. Thus, in the Kentucky convention of 1890, Mr. Hanks, a delegate, declared, I believe the voters of this Commonwealth are competent to elect their treasurer. I know full well that they are able to elect a Governor, and, =XVII, 2. County offices may, however, be created and abolished by the lesjislature. See also Schedule 18. 'Ill, 3, 4 ; IV, 1, 3, 17, 18 ; Amendments, V, VII, IX, X, XXX. *IV, 2; V, 3; VI, 1, 2; VII, 3, 7, 8, 11, 14. See XV, 1. "Sec 41, 42, 70, 77, 80, 81, 107, 131, 145. «Sec. 110, 111. 'Sec. 118, 119, 120, 121. STATE CONSTITUTION-MAKING. 155 by the way, as was said yesterday, we have universally elected a good one without one exception. If the people of Kentucky are capabJe of electing a good Governor, I think they are capable of electing a good Treasurer. . . . Mr. Hanks was ably seconded by Mr. Cox, — When the right of the great masses of the people is endangered, let us seek a rejnedy, and that remedy is found in the exercise of the elective franchise in conformity with statutory or organic law. I say here, taking the histoiy of Kentucky as the evidence upon which we should base our judgment, sitting as a jury to decide this great case under the evidence given in the history of our State, we must unquestionably say that the appointing power has proved a failure, and that we must main- tain our rights by securing to the people that sovereignty, that right, that power to which they are justly entitled. ... I love our form of government. I love it for its glory, its beauty and its grandeur. I love it for what it has accomplished ; but while I love It, I loathe in the deepest recess of my heart any effort whatever that will go in the direc- tion of taking from the people of Kentucky the right to choose their officers. I hold the taking of such a right from them is an innovation of the right which every man in this broad land should cherish. Let us, gentlemen of this Convention, maintain our rights. Let us stand up boldly and not let no man rob us of a single right." Like echoes of the words of Mr. Hanks and Mr. Cox sound passages from the debates of the New York convention of 1915. "We come," said Judge Ostrander," to the question, is representative government a failure? Don't the peo- ple know enough to govern themselves and el«ct their officrs? . . . Are our people ready to confess that they cannot elect people to carry on their business? If so. let us have the emperor come along. They say the people are too busy, they cannot find the man on the ballot. You let them put somebody on the town meeting ballot, which is two feet long, and hide him anywhere you please in there; if they want to "get" him, they will get him, either way. "TSfficiency !" cried Mr. Brackett,^ in reply to one of the arguments advanced for the short ballot, 'Official Report of the Proceedings and Debates: Kentucky Constitutional Con- vention, 1890, I, 1418, seq. (1424 and 1426). For argument favoraWe to the short ballot, see p. 1419. 'Record of the Constitutional Convention of the State of yew York, 1915, pp. 3243-4 (Vol. III). Hh., 3317. 156 STATE CONSTITUTION-MAKING. Do you want an eflScient government at the expense of self-government and at the expense of freedom? Why, Mr. Chairman, if you want an efficient government, go to the root of it and have an absolute govern- ment. Judge Ostrander^ went so far as to insinuate that ulterior mo- tives guided his opponents, — Now, this demand for a short ballot, if I may use a very homely expres- sion, is somewhat like a pile of poker chips. It grew from the top down. Tt did not grow from the bottom up. People did not go out of their own accord, and start a campaign several years ago to bring about this short ballot wio did not have any interest in it. Articles have not been printed for years at considerable expense in the papers of different political com- plexion ; have not been unanimously agreed to by the leaders of the antagonistic parties unless something was behind it and some reason was for it. Mr. Quigg' told eloquently of an experience of his while boating in the Canadian Rockies. Skimming over the surface of a lake at sunrise he beheld before him an immense cobweb, sparkling with dew drops like a million diamonds. So also sparkled the arguments for the short ballot. But as his canoe pierced the cobweb he saw beyond it crouching on the bank a big mountain lion. Likewise vicious would be the effects of the short ballot. Eloquence was not, however, confined to one side of the de- bate. Mr. Dykman replied,* 116. I wonder if the delegate with his eyes on the cobweb has not missed the Favoro°the" greatest wonder of this scene, the sun of democracy, the rising sun of Short BaUot. democracy, the sun that will rise if we get the short ballot and the people actually in control, with invisible government banished, with the real leader — and if you want to call him a hoss, the real boss out in the open, elected by the people, and responsible to the people, and to be with all his hopes and ambitions dependent on the people, and the invisible, skulk- ing boss disappears. I wonder if Mr. Quigg has not missed the rising sun of a real democracy, of the democracy that has for its watchwords, "simplicity, economy, efficiency," a government of the people "by the peo- ple and for the people. "On the whole," says Professor Beard," writing in 1909, "- . . it must be admitted that the American people retains Hb., 3289. Hb., 3301. H6., 3246. »op. clt., 598. STATE CONSTITUTION-MAKING. 157 its original confidence in the power of the ballot to do any kind and any amount of political work."" "Our elections," he adds, "continue to be the same farces in which the sovereign voters ratify the blanket tickets prepared for them by political experts," and he goes on to detail reasons for shortening the ballot. While the electorate is capable of passing intelligent judgment upon candidates for almost any particular oflSce, it is certainly incapable of selecting incumbents for all of them, or any considerable number of them at the same time ; there is no question of policy or principle involved in the selection of minor officials and the public is indifferent. "The real failure . . ., however, is due to the fact that it is abso- lutely impossible for any considerable number of voters to exer- cise any discrimination among candidates for a large number of oflfices." Only the head of the ticket — the governor or mayor — receives adequate attention. Even candidates for the legis- lature, among the multitude of persons running for oflSce, "are generally left in the same fog which envelops the candidates for the position of coroner or clerk of the municipal district court." The inevitable result is selection of ofScials by the irresponsible political boss. "If we could get the office-filling machine out of the way," Professor Beard says, in conclusion, we might possibly get an alignment of parties on real issues ; and in that event there might be a chance to carry to completion some real, con- structive, vital social reforms. That the average citizen should know nothing or nearly noth- ing of the individuals for whom he votes^ can hardly be won- dered at when one sees the ballot that citizens have to vote. To take a very common example, a ballot used in one of the assem- bly districts of New York City for the primary election of the Democratic Party is thus described, — 'The Ohio voters reieeted short ballot amendments In 1913. The rejected N. T. constitution of 1915 contained short ballot provisions. 'Mr. Richard S. Childs, writing for the Outlook (92 : 635, July 17, 1909) has given the Interesting result of an Investigation made In one of the most in- dependent districts of Brooklyn, after the 1908 election. He found that 87 per cent, of those questioned did not know the name of the state treasurer just elected ; 70 per cent, did not know the name of the assemblymen for the dis- tricts, and 85 per cent, did not know the name of the alderman. Only 2 per cent, knew how their alderman had voted on the question of Increasing the police force of the year before. 158 STATE CONSTITUTION-MAKING. It is eight and one-half inches by two feet four inches. It contains the names of 835 candidates ; 417 for members of the county general com- mittee, 104 for delegates to the county convention, 40 for delegates to the first district municipal court convention, 65 for delegates to the second district municipal court convention, 104 for delegates to the thirty-second assembly district convention, and 105 for delegates to the thirty-fourth, thirty-fifth, and thirty-sixth aldermanic district conven- lons.' In flmal elections ballots containing from two to three hundred names, or even more, are not uncommon. President Wilson, like others of the nation's leaders in thought, has taken occasion to confess publically his inability to make an intelligent choice :" — In the little borough of Princeton where I live, I vote a ticket of some thirty names. . . . Now 1 am a slightly busy person, and I have never known anything about half the men I was voting for on the ticket that I voted. I attend diligently, so far as 1 have light, to my political duties In the borough of Princeton — and y6t I have no personal knowledge of one-half the persons I am voting for. I couldn't tell you even what business they are engaged in — ^and to say in such circum- stances that I am taking part In the government of the borough of Prince- ton is an absurdity. ... I don't count for any more in the govern- ment . . . than the veriest loafer and drunkard in the borough, and I do not know very much more about the men I am voting for than he does. He Is busy about one thing and I am busy about others. We are occupied, and cannot attend to the government of the town. Later on in the same address, he said, What is the moral? . . . The remedy Is contained in one word: sim- pUfloation. Simplify your processes, and you will begin to control ; com- plicate them, and you will get farther and farther away from their con- trol. Simplification is, indeed, the remedy always proposed : "Let us," the people are thought of as saying, "let us choose only our chief oflQcials, the governor, the mayor, and let us make it a part of their official duty to select all the other administrative offi- cers. The governor and mayor are paid to take time to do this 'Beard, C. A., American Government and PolUics, 1st Ed., 473. 'Civic Proilema. An address, Mar. 9, 1909, at Annual Meeting of Civic League of St. Louis. Quoted by Beard, ib. (rev. ed.), 478-9. Bx-President Eliot of Harvard has made similar statements. STATE CONSTITUTION-MAKING. 159 thoroughly on our behalf. We number thousands and surely thousands of men at the polls cannot afford to take time to weigh carefully the merits of a dozen or a score of candidates. Nor is it needful that we should since the chief offlcer is di- rectly responsible to us and cannot shift his responsibility." As President Lowell says,^ the need of the people In this respect is similar ^to the need of a mer- chant, whose business has outgrown his old methods of personal man- agement. For successful large-scale administration, he must appoint to act under him trustworthy agents, who will relieve him of detail with- out taking from him the final direction and supervision of the business. The constantly increasing number of public oflflcials strengthens the arguments in favor of some adequate method of selection other than by popular vote. The adoption of the direct primary method of nomination makes a hitherto unknown call upon the voters' time and attention and emphasizes the need for keeping the number of elective officers at a minimum. Prefer- ential voting, if widely adopted, will demand a more careful estimate of the relative merits of candidates than is necessary at present and should also be considered in connection with the short ballot. In its larger aspect the short ballot movement is part of the ^^"^-j. ^^ ^^^ movement for more efficiently organized government, govern- o^^e^^^^^^ ment of centralized responsibility organized not simply to exist Movement. but to accomplish definite objects. Such a government requires the popular election of one carefully watched and controlled chief officer, not of a variety of seldom noticed and consequently irresponsible officials of similar rank. Proposals like those tend- ing to give states commission governments of a type somewhat like that of commission governed cities show the far-reaching changes that are being thought and written about.^ A reduc- tion in the number of elective officials and a centralization of responsibility characterize them all. Closely connected with the creation of more efficient and consequently more powerful state governments in the minds of many reformers is the use of ^Public Opinion and Popular Governmeni, 108-9. ^See Equity, July, 1913. Governor Hodge of Kansas, in a special message to the legislature In 1913, urged that the bicameral legislature should be re- placed by a small body elected from Congressional districts. 160 STATE CONSTITUTION-MAKING. new and elaborate methods of control, such as the recall and the initiative and referendum. Inseparable from the whole modem movement for better government is a change of attitude on the part of the people toward the government and of government offlcials toward the people. The transition from government imposed by the strong upon the weak, to government achieved by the willing cooperation of citizens involves; a great revolution. That revolution is yet in its early beginnings. De- mocracy wild not have had a fair trial until its principles have become generally understood and accepted. It calls for a new type of states- man, a new standard for the superior man. The old order called for a man who oould break the wills of the multitude and render them sub- missive. The new order calls for the man of insight, of sympathy and discernment, who perceives most clearly the needs and aspirations of the people.' Tennessee Note. — ^The Constitution of 1870 requires the popular elec- tion of the governor, members of the legislature, five members of the supreme court, the judges of the circuit and chancery and other inferior courts, attorneys for the state in districts in which there are judges hav- ing criminal jurisdiction, clerks, of inferior courts, sheriffs, trustees, registers, justices of the peace and constables.' The terms vary from two to eight years. There may be several senators and representatives from a single large county, in which case the ballot is correspondingly lengthened. Each civil district must have at least two justices of the peace, and districts including county towns must liave two constables. The governor and legislature are elected in the November, the others in the August, elections. A numiber of important statutory ofHcers are elected by the people, for example, the three members of the Railroad Commission, the five judges of the Court of Civil Appeals, oflicers provided for in city char^ ters, county tax assessors' and certain officers provided for in particular counties. The constitution requires the legislature to elect the secretary of state, comptroller and treasurer. It requires the governor to appoint the adjutant general and his other staff officers and special judges of the supreme court in case any or all of the regular judges are disquali- fied to sit in a particular case. It requires the judges of the supreme court to appoint the attorney general of the state and the clerks of the court, and chancellors to appoint their clerks and masters. Jlllitia oflB- cers must be elected by persons composing their companies, regiments, "Macy and Ganuaway, Comparative Free Oovernment, p. XVI. 'Ill, 2; II, 3; VI, 2, 3, 4, 5, 13, 15; VII, 1. STATE CONSTITUTION-MAKING. 161 etc. Commanding officers of feginients, etc., must appoint their staff officers. The justices of the peace must elect tie coroner and the ranger in their respective counties. No county office created by the legisla- ture can be filled otheiiwise thaq by the people or the county court.' Viewed in the light of the short ballot doctrine the number of elective state offices is not very objectionably long, but in the county elections the number of offices to be filled is not only too great for careful popular consideration, but the offices are too insignificant to call forth popular interest. The large votes piled up, especially for justices of the peace, are due to the efforts of the candidates and the personal interest or friendship of the voters in minute constituencies. CHAPTER X. The Making of Statute Law by the Eepeesentatvies op THE People/ The most striking thing about American state law-making bodies is the enormity of their output. Twelve thousand stat- iis. utes per year is an exceedingly conservative estimate of their Le^siatlon." productivity," and it is probable that not more than one-third of the bills introduced ever become law. When it is remembered that in most of the states sessions of perhaps three months' dura- tion are held only once in two years, the statistics of laws passed become incredible. The explanation of course is that a very large proportion of the statutes are ill-considered to begin with and unconsidered by the legislatures that pass them. Hastily drawn and often passed mechanically while members read their newspapers, these laws remain none the less to puzzle the courts and absolutely bewilder the ordinary man who is so officious as to aspire to ♦hi, 17; VII, 3; VI, 11, 5, 13; VIII, 1, 2; VII, 1; XI, 17. The governor may fill temporarily certain vacancies — III, 14. See, also, VII, 2, 4. 'General References : Relnsch, P. S., American Legislatures and Legislative Methods; Jones, C. L., Statute Law Making in the United States; Stimson, F. J., Popular Law-MaMng ; Dealey, .1. Q., Orowth of American State Constitutions ; Kaiser, J. B., Legislative and Municipal Reference lAbraries. "See Dealey, op. elt., 224; Stimson, op. clt., 117. 11 162 STATE CONSTITUTION-MAKING. some slight acquaintance with the 'laws under which he lives in this land of popular rule/ This legislative fecundity, irrespective of the merit of the laws enacted, gives rise to problems that need to be studied on their own account. It lends especial interest, also, to a study of the organization and procedure of the legislatures. In every state the legislature — usually called the General liegisiatures ^-ssembly — ^is divided into two houses,^ a Senate, invariably Bicameral. considered the "upper" house and in size smaller than the other, and a House of Eepresentatives^ — or, as it is called in Virginia, a House of Delegates. The number of senators varies from sev- enteen^ to sixty -three ;^ the number of representatives from thirty-flive to three hundred and ninety.^ The reasons for making the state legislatures bicameral are found in current thought and practice at the time of the Eevolu- tion : England had two houses and in the colonies, besides the lower or popular house there had been the governor's council which was elected by the lower house or chosen by the king or proprietors. The council was the prototype of the state senate, but obviously its continuation as the latter was founded on habit alone, for under the new regime both the senate and the house of representatives emanated from and rep- resented the people.'' The case was different with the federal con- gress, because the United States Senators, elected by the state 'There is a spriuliling of purely freak legislation. The following statute is an excellent example, — Be it enacted by the Legislature of the State of Kansas : Sec. 1. That the term "automobile" and "motor vehicle" as used in this act shall be construed to include all types and grades of motor vehicles pro- pelled by electricity, steam, gasoline, or other source of energy, commonly known as automobiles, motor vehicles, or horseless carriages, using the public highways and not running on rails or tracks. Nothing in this section shall be construed as in any way preventing, obstructing, impeding, embarrassing or in any other manner or form infringing upon the prerogative of any political chauffeur to run an automobile band-wagon at any rate he sees fit compatible with the safety of the occupants thereof ; provided however, that not less than 10 nor more than 20 ropes be allowed to trail behind this vehicle when in motion, in order to permit ;hose who have been so fortunate to escape with their polit- ical lives an opportunity to be dragged to death ; and provided further, that whenever a mangled and bleeding political corpse implores for merey, the driver of the vehicle shall, in accordance with the provisions of this bill, ''Throw out the life-line." — (Laws of Kan., 1903, ch. 67.) Jokers often occur In otherwise serious bills. Concerning an Interesting ex- ample, see Tennessee Historical Magazine, I, 196-7. *Three states originally had single-chambered legislatures, but they had a governor's counsel as a check. The last (Vt.) was abolished in 1836. "Del. >Mlnn. ''Five states have more than 200 representatives ; thirty states more than 100 ; only twelve less than 7B. "Property qualifications were usually greater for Senators. STATE CONSTITUTION-MAKING. 163 legislatures, theoretically represented the states as separate enti- ties. The early American statesmen were fond of studying Greek and Roman models, which likewise suggested the two- house system. Furthermore, distrust of the masses was a strong incentive toward the creation of an upper chamber, rep- resenting more particularly the propertied classes, to act as a balance to and check against the more popular house of rep- resentatives.* In three states the term of office of both senators and rep- ^ 120. ^ Term, Ap- resentatives is four years ;° in thirteen it is two years," and in portionment two it is one year.'' In the remaining thirty states the senators ^*'Y°^t°r serve for a longer term than the representatives.* In one state* senators serve two years and representatives one; in another,^ three and one, respectively, and in twenty-eight, four and two, respectively.^ Illinois^ attempts to secure some representation for parties who in no legislative district can control a plurality among the voters, by allowing each elector to "cast as many votes for one candidate as there are representatives to be elected, or . . . distribute the same, or equal parts thereof, among the candi- dates as he shall see fit; and the candidates highest in votes shall be declared elected." The legislators are sometimes apportioned among the parts of the states according to the number of the electors,* but usually according to population,^ subject to various additional restric- tions. The county or other local subdivision is occasionally the basis of representation, irrespective of population. ° Frequently the provision is found that, in forming legislative districts county lines shall not be crossed, that each county having at least a certain ratio of the population that would in due course entitle •See Wilson, The State (1906 Ed.), pp. 487-8. 'Ala., La., Miss, "e. g. Conn., Ga., Mich., Tenn. 'Me., Mass. 'Frequently half or a third of them are elected at each election of representa- tives. »N. Y. IN. J. -e. g., Cal., la., ICy., Pa, 'IV, 7 and 8, *e. g.. Aril, VIII, 1, 2, 3 ; Tenn, II, 5, 6, =e. g., Okla, V, 9, 10, 11 ; Pa, II, 16, 17, Ore. (IV, 6, 7) says "white popu- lation," "See Md, III, 2, 3, 4,. 5; R. I, VI, 1, Amend. XIII, 1, In R, I. this has de- veloped into a notorious rotten borough system. Vt, II, 13, 164 STATE CONSTITUTION-MAKING. it to a member shall have one anyway and that districts must contain a whole number of counties. Provisions of this kind are usually lengthy and complex and they vary considerably from state to state.'' The federal census is largely relied upon for the enumera- tion of the inhabitants, though many of the states provide other or additional means. Usually the legislature is specifically authorized to make the apportionment,* though a number of constitutions leave this agency undetermined. New York" especially provides that the legislature's apportionment shall be subject to judicial review, at suit of any citizen, under such reasonable regulation as the legislature may prescribe. Okla- homa^ makes it subject to the approval of the governor as bills are approved, and subject to review by the supreme court at the suit of any citizen, under such rules and regulations as the leg- islature may prescribe; furthermore, apportionment cases are to have precedence. In Missouri,^ if the legislature should fail to district the state for senators, the governor, secretary of state and attorney-general must perform the duties of apportionment within thirty days after the adjournment of the legislature. The governor is entrusted with this very delicate task in Maryland^ and in Ohio* the governor, auditor and»secretary of state, or any two of them. Usually reapportionment is to be made de- cennially." 'For example, In New York, the members oJ the lower house are apportioned among counties as nearly as may be according to number of inhabitants exclud- ing aliens, each county (except Hamilton) to be entitled to one member. Ratio to be olDtained by dividing whole number of inhabitants excluding aliens by num- ber of members of lower house. Bach county containing less than ratio and one-halt oyer to elect one member and every other county to elect two mem- bers ; remaining members to be apportioned to counties haying more than two ratios ; members apportioned on remainders to be apportioned to counties haying highest remainders in order thereof respectively ; no county to have more mem- bers than county having greater number of inhabitants, excluding aliens. In any county entitled to more than one member, the board of supervisors (or common council in city embracing entire county and having no board of supervisors) to divide county into districts, according to number of inhabitants excluding aliens, of contiguous territory, each district to be wholly within senate district formed under same apportionment ; number of districts to equal number of members to be elected. Description of such districts to be filed in office of secretary of state and clerk of county. Members to be apportioned to counties as prescribed in constitution until new apportionment made. (Ill, 5.) sAla. IX, 190. 200; Ark. VIII, 4; Fla. VII, 3; Ind. IV, 5; K^. 33: Da. 18; Mass. Amend. XXI, XXII ; Mich. V, 4 ; Mont. VI. 2 ; N. H. II, 9, 25 ; N. J. IV, Sec. Ill ; N. M. IV, 41 ; N. C. II, 5 ; N. D. II, 35 ; R. I. Amend. XIII, 1 ; S. C. Ill, 3 ; S. D. Ill, 5 ; Tex. Ill, 28 ; Utah IX, 2 ; Vt. II, 18 (senate) ; Va. IV, 55 ; W. Va. VI, 4 ; Wyo. Ill, Apportionment 2. "Ill, 4, 5. >V, 101. ^IV, 7. »III, 5. In addition to formal limitations upon the legislature there are, of course, such limitations as those "resulting" from positive provisions — as, it the con- stitution says an organ of government shall have a certain power and it is held that the legislature cannot make that power more extensive ; and such as are "inherent" In the exercise of certain powers provided, — as that the power to tax must be exercised for public purposes only, — tB., 110. Hi. 184 STATE CONSTITUTION-MAKING. and, furthermore, that direct proceedings, in the nature of quo warranto should toe' allowed to the representative of any in- terest affected by the act. Even better, perhaps, would be the constitutional requirement that no statute should be questioned in any event by reason of the alleged violation in specific respects of a formal requirement vrhere prior to its approval the attorney general had given his vsritten opinion to the effect that its form or the procedure of its enactment did not in those specific respects violate the constitutional requirements. . . . After that chance has been given and no one has availed himself of it, the violated constitutional provision becomes merely a technical loop- hole of escape from the law, and the constitution makes it possible, not to protect legitimate interests, but to defeat the legislative -will.' That these various restrictions have failed to make Ameri- can legislation technically equal to that of England or Ger- many where no such restrictions exist show how futile it is to attempt by mechanical devices to ibring about what can be achieved only by sound tradition and by voluntarily accepted restraint and influence. Professor Freund makes two significant suggestions for im- provement,* — (1) The employment of a staff of expert draftsnfen, trained 135 for the work of drawing up statutes, and secure in their posi- Drafting. tions as part of the legislative service. To the extent neces- sary to secure this the provision that each house may elect its own ofliicers should be abrogated. (2) In order to secure expert criticism of bills and expert information, on demand of the governor or the presiding oflScer of either house, any bill should be referred for opinion and suggestion to any designated official bureau or commission ; upon its being so referred action to be postponed for not exceeding a specified period ; the legislature to be free to accept or reject any suggested alteration. . . . Emergencies would have to be provided for, but only under effective safeguards; as, c. g., a special message of the governor, declaring the urgent necessity for the imme- diate passage of the bill." Hb., 108. H\>., 109-10. "Legislative reference libraries and bureaus of expert draftsmen have been established In a few states, notably Wisconsin. — See McCarthy, Charles, The 'Wis- consin Idea, ch. VIII, esp. pp. 196, seq., and 214, seg. STATE CONSTITUTION-MAKING. 185 Professor Preund believes, furthermore, that the executive (,g^^^;.^jjg^ should take a more active and responsible part in legislation — Executive that the governor should be allowed to introduce bills" and be given more opportunity for critical scrutiny of their technical character; also that the legislature's acceptance of guberna- torial suggestions should be encouraged.' In most European systems tlae two chambers represent different political elements of the state, and the executive has practically the monopoly of initiating measures. The government is thus a petitioner, parliament a critic and the final judge. The reciprocal interaction of different or- gans of the body politic creates all around a heightened sense of respon- sibility for legislation.' Tennessee Note. — The Tennessee legislature has, during its last half dozen sessions, been distinctly more prolific than ever before. In 1909 nearly 600 bills became law; in 1911 the number was 749; only 73 of which were public acts. The printed acts of 1915 comprise 180 of a public nature, covering 530 pages, and 697 of a private nature, covering 2,230 pages." There were 57 house resolutions, 30 house joint resolu- tions, 30 senate resolutions anIII, 1. 190 STATE CONSTITUTION-MAKING. Provided, that not more than five per centum of the qualified electors of the state shall be required to invoke either the Initiative or the referendum. This section shall not be construed so as to deprive the legislature or any member thereof of the right to propose any measure. The veto power of the executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be : "Be it enacted by the people of iSouth Dakota." The legisla- ture shall make suitable provisions for carrying into effect the provi- sions of this section. Ordinarily no act takes effect until ninety days after adjourn- ment,^ but by vote of two- thirds of all the members elected to each house, the legislature may declare an emergency and di- rect otherwise. By far the most famous, because most extensively used, of the initiative and referendum provisions is that of Oregon, originally 440 words in length, to which, in 1906, was added a 179-word extension.^ It requires "not more than eight per 141. cent." of the legal voters of the state to propose a measure and Provisions, jive per cent, to compel a referendum. Initiative petitions must include the full text of the proposed measure and must be filed with the secretary of state four months prior to the election. Laws necessary for the immediate preservation of the public welfare are excepted from the referendum, but the legislature may itself refer other toills and referenda may be demanded upon parts or items of bills. Petitions for referendum must be filed not more than ninety days after final adjournment of the legislature that passed the act. The governor has no veto upon bills submitted to the people. The legislature may order special elections for initiative and referendum votes, in the absence of which they are taken at the next regular biennial election, when, on an affirmative majority of all votes cast for or against them, the bills beqome law. The basis upon which the number required to sign a peti- tion is determined is the vote for justice of the supreme court 'at the last preceding election. 'Ill, 22. »IV, 1, la. See also IV, 2S ; IX, la; XI, 2; XIV, 1, ?; XVII, 1. STATE CONSTITUTION-MAKING. 191 The most recent constitutional enactment for direct popular jja'ryland legislation is that of Maryland.* Though providing for only the Referendum, referendum it contains no fewer than 1,087 words. Unless three-fifths of all the members elected to each house declare an act to be one of emergency, or unless it is a prohibition bill or an appropriation bill for maintaining the State Government, or for maintaining or aiding any public Institution, not exceeding the next previous appropriation for the same purpose," it cannot go into effect until the first of June following its passage. Emergency bills cannot include those creating or abolishing any office, or changing the salary, term or duty of any officer, or granting any franchise or special privilege, or creat- ing any vested right or interest." Before that date there may be filed with the secretary of state a petition for a referendum signed by ten thousand qualified voters of the State of Maryland, of whom not more than half shall be residents of Baltimore City, or of any one county,' in which case the act upon which a referendum is petitioned shall not become law until thirty days after its approval by a majority of those voting thereon at the next general election for federal representatives. If more than one-half, but less than the full number of signatures re- quired to complete any referendum petition against any law passed by the General Assembly, be filed with Secretary of State before the first day of June, the time for the law to talie effect, and for filing the remainder of signatures to complete the petition shall be extended to the thirtieth day of the same month with like effect. Detailed regulations concerning the manner of making the petitions and preventing fraud, for publicity and in regard to the ballot are next set forth. Each paper making up a petition *To be known as Article XVI. Adopted Nov. 8, 1915. °J6. The increase In such appropriations is subject to the referendum. "Sec. 2. 'Sec. 3 (a). For referendum upon local measures, see infra, ch. 17. 192 STATE CONSTITUTION-MAKING. must contain the full text of the legislation in question and the person procuring the signatures must make affidavit — that of his own knowledge everyone is genuine and that all signers are registered voters. Looking at the initiative and referendum provisions all to- 143. gether, it is seen that the regular method of starting the process of direct legislation is by petition. One state,' however, does not specify any method and two others" leave the matter to legislative enactment. Colorado^ authorizes the secretary of state to prescribe the contents of the inscription xipon the sheets used for gathering signatures. Michigan" allows any petition to be presented in sections, each containing a full and correct copy of the title and text of the proposed measure and each sec- tion bearing the name of the ' county or city in which it is circulated. Other states leave details to be arranged by the legislature, or make specifications not consequentially different from these. In order that the Ihickly settled sections of the state may not furnish all of the signatures, provisions that they must be scattered through a certain percentage of counties or congressional districts are frequent. Michigan and California* require persons soliciting signatures to be electors; signers must, of course, by express or implied provision likewise be electors. Colorado and Ohio expressly forbid signatures by proxy and the latter requires signing to be in ink. The date, the signer's residence address, his street and num- ber, his township and county if living outside a municipality, his post office address, his election precinct and his precinct and ward instance the various requirements for information rel- ative to signatures. Arizona* requires that each person signing shall declare that he is an elector. Maine requires the clerk of the locality where the petition is made to certify that the signers are qualified' to vote for governor in the locality. Five states* require of the circulator of petitions an affidavit verifying sig- natures; Colorado requires the affidavit of a qualified elector, and Maine of one of the petitioners. California specifies that such affidavit must be taken free of charge by any officer au- thorized to administer oaths. ^S. D. 2v, 1. 4IV, Pt. I, 1 (9). "Id ; Utah. 'V, 1 ; IV, 1. "Ariz., Cal,, Md., Mich., O. "V, 1. STATE COXSTITUTION-MAKING. 193 The basis for computing the number of signers required for a petition in order that the requisite percentage of electors may be obtained is, in Oklahoma, the total number of votes cast at the last general election for the state officer receiving the highest number of votes f in nine states,' the total number for governor ; in two,^ for secretary of state, and in one" for justice of the supreme court. In fourteen states^ the petition must be filed with the sec- .144. ■^ Filing the retary of state; in two^ each section, at the same time as the Petition, other sections, with a specified local officer, later to be forwarded to the secretary of state. In three states^ there is express pro- vision that the petitions properly verified by affidavit shall be prima facie evidence that signatures thereon are genuine and that the signers are qualified electors; in California only an official investigation can invalidate a petition when once the local officials have presented it to the secretary of state. In Ohio within forty days of election there is a conclusive presump- tion that a hitherto unchallenged petition is "in all respects sufficient." New Mexico* makes a felony the signing of a peti- tion by a false name, signing more than once or by a person not an elector of the county specified in the petition. Oklahoma' ordains that laws shall be provided to prevent corruption in respect to petitions. Lest the original petition should turn out to be insufficient, three states" allow a supplemental petition to be filed within a certain number of days after the original. Before submission to the voters, several of the constitutions' pu^f^ation ■ require publication of direct legislation measures, as in the case pamphilts of constitutional amendments' or by means of the celebrated 'Similarly in N. M. 'Ariz., Ark., Cal., Me., Mich., Mont., Neb., Ohio, Wash. 'Colo., N. D. 'Ore. lAriz., Ark., Colo., Md., Mo., Mont., Neb., Ney., N. M., N. D., O., Okla., Ore., Wash. "Csd., Mich. ^Cal., Colo., Mich. *IV, 1. »V, 8. "Cal., Mich., O. 'It must not be forgotten that by statute tliese detaUs may be supplied where the constitution is silent. Oregon's publicity pamphlet, the most famous of all, is provided for by statute. 'Ariz., Colo., Md. (until otherwise provided by law) ; Mich. 13 194 STATE CONSTITUTION-MAKING. publicity pamphlet:" "Until otherwise provided by law," or- dains the California constitution, ajll measures submlttecl to a vote of tlie electors . . . shall be printed, and together with arguments for and against each sucli measure by the proponents and o:piponents thereof, shall be mailed to each elector . . . : and the persons to prepare and present such arguments shall, until other- wise provided ,by law, be selected by the presiding officer of the Senate. Nine of the constitutions specify that the initiated or re- ferred measures shall be submitted at the next general election. Usually there is also a provision permitting the governor or leg- islature to call special elections. Five constitutions^ regulate to some extent the ballot to be used. For example, Nebraska^ provides that all propositions . . . shall be sulbmitted in a non-partisan manner and without any indication or suggestion on the ballot that they have been approved or endorsed by any political party or organization, and . . . only the title of measures shall be printed on the ballot and, when two or more measures have the same title they shall be numibered consecutively in the order of filing with the Secretary of State and in- cluding the name of the first petitioner. In case of conflict between two or more laws ratified by the people at the same election, seven constitutions' provide that the one receiving the largest number of affirmative votes shall be law — at least as to conflicting points. Washington* goes more into detail, — When conflicting measures are submitted to the people the (ballots shall be so printed! that a voter can express separately by making one cross (X) for each, two preferences, first, as between either measure and neither, and secondly, as between one and the other. If the majority of those voting on the first measure is for neither, tooth fail, but in that case the votes on the second issue shall nevertheless ibe carefully counted and made public. If a majority voting on the first issue is for either, then the measure receiving a majority of the votes on the second issue shall 'be law. »Cal., 0., Wash. lArlz., Me., Md„ Nebr., 0. =111, 1 D. "Ariz., Cal., Mich., Nebr., Nev., N. D., 0. «II, la. STATE CONSTITUTION-MAKING. 195 Nine states" make decisive the majority of the vote for and jjgguf je^ against any measure. In Washington the vote on the measure y°g'|' gan- miist equal one-third of the total vote at the election. In New Mexico the majority must not be less than forty per cent, of the total vote so cast. Arizona" provides that the secretary of state, in the presence of the governor and the chief justice of the supreme court shall canvass the vote, within thirty days of the election, upon which the governor shall by proclamation declare the result. The time for taking effect is variously speci- fied, — when approved by the people,^ from date of official decla- ration of vote,^ on the thirtieth day after the election,' upon proclamation of the governor,^ which in some states must be. within a certain number of days after the official canvass has been completed,^ and a specified number of days after the offi- cial declaration of the vote by the secretary of state.' The veto power of the governor is generally denied in case iJecuLi-ities/ of popularly enacted measures. Oklahoma* provides that tfon^Enacted by the any measure rejected by the people, through the powers of the initiative ° ^"^^^ and referendum, cannot 'be again proposed hy the initiative within three years thereafter toy less than twenty-five per centum of the legal voters. In Arizona" the legislature cannot repeal or amend meas- ures approved by the electors. Oklahoma," on the other hand, expressly declares that the reservation by the people of the powers of initiative and referendum shall not deprive the leg- islature of the right to repeal or pass any measure otherwise allowable. Washington' takes middle ground, — No act, law or bill approved by a majority of electors voting thereon shall be amended' or repealed by the legislature within a period of two years following such enactment. But such enactment may be amended or "Ariz., Arl£., Cal., Colo., Md., Me., Mich., Mo., Ore. »IV, Pt. I, 1 (13). 'Ark., Mo., OUla., Ore. ^N. M., Nev., N. D., Md., after proclamation by the governor. "Wash. 'Ariz. 'Colo., Nebr., Me., '(with further details). »Cal., Mich. *V, 6. »IV, Pt I, (6) (1914). »V, 7. 'II, Ic. 196 STATE CONSTITUTION-MAKING. repealed at any general, regular or special election by direct vote of people thereon.' In several states the constitutional provisions for initiative andl referendum are declared to be in all respects self-executing." Limitations expressed in the constitution on the power of the legislature to enact laws are declared likewise to limit the initia- tive in Michigan and Nebraska, and, scattered through the vari- ous provisions are special limitations. Several states provide that the enacting clause^ of popularly initiated acts shall read, "Be it enacted by the people . . .," instead of "by the legis- lature." Among the numerous special problems which a constitu- .148. tional convention framing an initiative and referendum clause Indirect must Consider, two of the most important are (1) whether pop- ularly initiated measures shall be submitted directly to the people or first referred to the legislature, and (2) to what ex- tent acts passed by the legislature may be declared emergency measures and made exempt from the referendum. Six of the states- provide for submission of initiated meas- ures to the legislature with provision for a popular vote in case the legislature does not enact them.^ Two of these states* pro- vide, also, that, on petition signed 'by the same^ or a larger per- centage of the voters, a measure may go directly to a popular vote. A seventh state^ simply requires the legislature to enact initiative proposals and submit them to the electorate. An eighth state' authorizes popular proposals to the legislature and does not require submission to the people even if the legis- 'See : Cal. IV, 1 ; Mich. V, 1 ; Nev. XIX, 3, for other analogous regulations. "Ariz., Colo. lb., with additional provision that laws may be passed to fa- cilitate their operation, — Cal., Md., Neb., Nev., N. D., 0., Wash. 'e. g., Mont., Nev. ^Cal., Me., Mich., Nev., N. D., Wash. Such measures are subject to the refer- endum Just as are other statutes. Sometimes they take precedence over all other measures before the legislature. Sometimes, also, if the legislature passes another bill on the subject of one initiated, both must be submitted to the voters. In Maine when there are competing bills and neither receives a majority of votes given for or against both, the one receiving the most votes shall at the next general election to be held not less than 60 days after the first vote thereon, be submitted by itself if it receives more than one-third of the votes given for or against both. H. e., without change. «Cal., Wash. "Wash. Whether measure referred to legislature depends on time of filing. 8S. D. 'O. Initiated measures are subject to referendum. STATE CONSTITUTION-MAKING. 197 lature does not act upon them unless such submission is de- manded by a supplemental petition signed by the same per- centage of the voters as was required for the original petition. The remaining initiative states authorize only the direct initia- tive, which brings the measure proposed before the voters with- out reconrse to the legislature. The latter method is, of course, more squarely in accord with the idea of direct legislation, but the requirement that the leg- islature shall first pass upon an initiated bill offers such oppor- tunity for revision and the correction of technical defects as that body affords and may save the trouble and expense of a popular election. Emergency clauses are incorporated into most of the refer- j^^l^^g^^y endum clauses to prevent the use of the referendum to delay ■*^*='^- measures of great immediate importance. If the legislature is allowed to decide which acts involve cases of emergency* or are necessary to preserve the peace, health or safety of the state,^ any act which the legislature wishes to be certain of operation may be so declared and the whole object of the refer- endum clause defeated. The way out of the difficulty seems to be either to define "emergency" by very specific constitutional provisions,^ to require extraordinary majorities for passage,- or simply to make all acts of whatever nature subject to the referendum.^ Certain named classes of bills, for example, ap- propriation bills,* may be — and commonly are — exempted from the referendum. The general argument in favor of direct legislation is chiefly i50. that it for-ms a more adaptable piece of machinery for efflectuat- for ana ing the popular will than does the representative system alone. pir?<=t That its potential use often makes unnecessary its actual use is indicated hy a governor of South Dakota who, in 1902, said, Since tbis referendum law has been a part of our Constitution we have had no charter-mongers or railway speculators, no wild-cat schemes, »e. g.. Ore. IV, 28. KaOderly v. Portland, 44 Ore., 118 (1903) ; Contra, State V. Meath, 147 Vac, 11 (Wash., 1915). »e. g., Mich., V, 1. iSee Me. IV, Ft. Ill, 16; Okla. V, 58. 2e. g., O. II, Id (2/3). 'See Idaho, Amendment 15. *See, e. g., Mich. V, 1. 198 STATE CONSTITUTION-MAKING. submitted to our Legislature. Formerly our time was occupied by spec- ulative schemes of one kind or another, but since the referendum has been made a part of the Constitution these people do not press their schemes upon the legislature; hence, there is no necessity of having recourse to a referendum." Those who deplore the rapidly spreading use of direct leg- islation urge th,at it takes law-making from responsible assem- blies and turns it over to irresponsible voters who are not only unprepared to overcome the technical diflSculties of legislation but are largely without opinion upon the subject of legislative needs. Furthermore, it is said that the preparation of bills by irresponsible persons may result in the insertion of pernicious riders in measures that are likely to prove popular, and that special interests may invoke the referendum to delay the opera- tion of wholesome laws. It must be confessed, however, that few legislatures are themselves without sin in any or all of these particulars. Probably no better summing up can be found than the fol- lowing statement of President Lowell, which, while exposing the fallacy underlying the overwrought enthusiasm of many pro- ponents of the initiative and the referendum, recognizes that they have a place in political theory and practice, a place, in- deed, of great potential utility: — That direct popular action upon laws, when wisely and scientifically applied, will prove highly useful In certain conditions of society we may well believe without expecting it to usher in the millennium. All theories based on the assumption that the multitude is omniscient are fallacious, and so are all reforms that presuppose a radical change in human nature. It is easy enough to prove that any form of govern- ment will work like a charm if everyone who has a share in the public authority is spotless in wisdom and character ; and there has probably never existed a political system of which men have not tried to demon- strate the perfection. Mankind is, and so far as we can see is likely to be, composed of some very good people, some very bad ones, and a large number who are well meaning, but more or less indolent and in- different when their personal sympathies or interests are not touched ; and the test of any institution is the fruit it will bear in a community of that kind." •Quoted by Lowell, op. clt., 228, from Arena, Aug., 1902, p. 124. "Lowell, op. cit., 233. STATE CONSTITUTION-MAKING. 199 Tennessee Note. — The state-wide initiative and. referendum for stat- utes has as yet no place in Tennessee institutions. The constitution of 1796 -was not submitted to i>opular vote, but since that date all con- stitutions, amendments and questions of calling conventions have been passed upon by the electorate. Moreover, several of the commission gov- ernment charters, which have been adopted by a number of cities, author- ize the initiative and referendum for municipal ordinances. Thus, the charter of the city of Jackson' provides that "Any. pro- posed ordinance may he submitted to the Board of Commissioners by petition signed by the qualified voters of said city, equal in number to 25 per cent, of the votes cast for candidates for Commissioners at the last preceding general municipal election, with the request that said ordinance be submitted to a vote of the people, if not passed by the Board of Commissioners." If the ordinance is not enacted without al- teration within fifteen days it must be referred to the municipal elec- torate. Furthermore, "No ordinance passed by the Board of Commissioners, unless otherwise expressly provided, except an ordinance for the imme- diate preservation of public peace, health, or safety, and which contains a statement of its urgency and is passed by a unanimous vote of the Board of Commissioners, shall go into effect before twenty days from the time of its final passage, and publication in the daily papers pub- lished in the city of Jackson, and if during said twenty days, a petition signed by the qualified voters of said city, equal in number prescribed herein to be signed to a petition for the submitting of any ordinance to the people, — viz : 25 per centum, be presented to the Board of Com- missioners the operation of such ordinance shall thereupon be sus- pended and it shall be the duty of the Board of Commissioners to con- sider such ordinance, and if it is not entirely repealed, the Board of Commissioners shall submit to the qualified voters the question of the repeal of such ordinance at an election to be held for that purpose." The general rule that the legislature cannot delegate its powers to the electorate obtains in Tennessee," but the constitution specifically authorizes such delegation in a few instances." 'Private Acts of Tenn., 1915, ch. 168, sec. 27. 'Wright v. Cunningham, 115 Tenn., 445, 91 S. W., 293 (1905). •See II, 29 ; X 4. City charters are sometimes made dependent upon popular approval — e. g. that of Knoxville, Private Acts of 1911, ch, 498, sec. 46. 200 STATE CONSTITUTION-MAKING. CHAPTER XII. The Administration of the Law.^ In the Tennessee constitutional convention of 1834, Mr. Smith submitted a resolution as follows :^ Resolved, Tliat an extensive and frequent exercise of the right of suffrage, is consistent with the principles of free government, and in order to secure a faithful discharge of the duties of public servants, and the requisite rotation in oflSce, for a strong attachment to our institu- tions, no person shall be elected to office for life or during good behavior ; but the tenure of all offices shall be limited to such a period of time, as sound policy may reqniire and incumbents placed hefore the constitutional electors to stand for reelection. 151. Changing Conditions .and New Problems of Admluistra- iion. This resolution with its leading thought of popular control by means of frequent popular pronouncements upon the useful- ness of all public servants and its secondary thought of giving numerous persons the opportunity to become attached to "our institutions" through .personal participation in their function- ing, depicts admirably the spirit of the naive democracy of its time — ^naive not in its concepton of underlying principles, but in its selection of methods. Thafattempted minute supervision by the great body of voters over minor officials still recommends itself to many has been shown by the discussion of the long and short ballots.'' That there still lingers a feeling of distinction from the fact of holding public o£Qce, which men prize and strive for, and, in their generosity, would see shared by many, is often made manifest ; — very pertinently, fpr instance, in a candidate's recent advertisement that neither he nor any member of his 'General References : Finley and Sanderson, The American Executive and Executive Methods; Goodnow, F. J., Principles of the Administrative Law of the limited States; Politics and Administration; Report of the efflciencij and Economy Committee, Illinois, 1915 ; Oovemment of the State of Kew York (Prepared by the New York State Department of Efficiency and Economy and the New Yorlj City Bureau of Municipal Research) ; Wilson, Woodrow, The Stud]/ of Administration, Political Science Quarterly, II, 197 ; Puhlic Administration and Partisan Politics. Annals of the American Academy of Political and Social Science, whole No. 153. '^Convention Journal, p. 42. 'Supra, ch. 9. STATE CONSTITUTION-MXKING. 201 family, tlie head of which was a civil war veteran, had ever sought ofSce before.* Frequent appearance before the people to render an account of one's stewardship may undoubtedly have a salutary effect upon office holders." But if the people are indolent and careless in calling their servants to account or too much preoccupied with affairs of their own to be able to examine the recoi'ds of candidates for reelection, obviously there can be no benefit in frequent elections. The number of administrative officers has vastly increased as the demand for state activity and state super- vision of private affairs has steadily grown. Consequently pop- ular supervision has become more and more inadequate. Mean- while, the character of administrative functions has changed." In the old and simple days when traditions were being formed in the United States, most public duties could be performed by any citizen of average capabilities. Today public administra- tion calls for special and often highly technical information. Experts of all kinds must be utilized. The average intelligent citizen is no longer able to fill tolerably the great majority of administrative offices. In this changed condition of affairs has originated the present problem of the administration of the law. The solution of the problem must be sought through various ^^ 152.^ channels. Obviously the first necessity is for officials who either 8^^"^,^'^ have or can acquire ability to fulfil adequately their official Adequate ^ •' . -1 ^ Organization. duties. Equally obvious is the necessity for such systematic co- ordination of administrative offices as will secure genuinely effi- cient work by the entire administrative department of the gov- ernment. The people can obtain more capable public servants in one of two ways. In the first place they are theoretically able to choose them at the polls with such care as to insure the election of those citizens who are best able to serve. Long tenure of office *Knoxville Journal and Tribune, March 16, 1914. "A different aspect of the question of frequent appearance before the people is seen in Machiavelli's statement that the stability of the state is preserved by granting opportunity for accusing public officials. Concerning this an English periodical once remarked, — "The benefit of such a provision is twofold. First, the salutary fear of the probable coming of a day of account will restrain the evil practice of some bad men and self-seekers ; secondly, the legal outlet of accusation gives vent to peccant humors in the body politic, which, if checked and driven inward, would work to the utter ruin of the constitution." (West- minister Review, LXVI, 193; quoted, Wilson, Congressional government, 275.) "Among the most important and most difficult of modern administrative func- tions is the adequate regulation of public service corporations. 202 STATE CONSTITUTION-MAKING. 153. Civil Service. may be given in order that expertness may be acquired and that public office may be more attractive to men of ability who would look upon public service as a career. In the second place, the people may choose the chief administrative oflflcers — governors, mayors, etc., at the polls, and place upon them the responsibility of selecting all other officials. The relative merits of these two methods have already been discussed.'' Minor officials and employes may be chosen according to merit demonstrated by competitive examinations. This method is gradually working itself into universal use for civil service and, indeed, is provided for in three constitutions.' * The New York section, dating from 1894, provides that appointments and promotions in tlie civil service of the state, and of all tlie 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, and that "Laws shall be made to provide for the enforcement of this section."" According to Mr. Samuel H. Ordway, of the New York Civil Service Eeform Association, this 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 con- struction and meaning are definitely settled.' 154. Situation in Illinois and Proposed Re- organization. In whatever manner appointed to office, continued efficiency usually requires that officials having long or permanent tenure of office shall be liable to removal by their superiors for ineffi- ciency. Civil service examinations are less accurate tests than is actual practice in office. The latter should, it would seem, determine the tenure of one's position. Hence, it is unwise to make removal over-difficult. Efficient administrative organization has been sought through the study and investigation of special commissions recently ap- pointed for the purpose in a number of states. In Illinois, to 'Especially in ch. 9. «Cal., XX, 16; N. Y., V, 9; 0., XV, 10. "Civil war veterans must be given preference. 'Proceedings of Academy of Political Science, V, p. constitution of 1915 made no change, — XIII, 10. 262 (1014). Tlie proposed STATE CONSTITUTION-MAKING. 203 take an excellent example, the report of the eiBciency and econ- omy committee siiows that the executive department consists of a Governor, Lieutenant-Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintend- ent of Public Instruction and Attorney General, provided for by tlie con- stitution and elected by popular vote; and of more than a hundred other state officers, boards and commissions, created by statute, and in most cases appointed by the governor, by and with the advice and con- sent of the iSenate.'' In that state, as in others, the number of State officers, boards and commissions has been rapidly increasing; and every session of the General Assembly sees the origin of new authorities. Less than a fourth of those now in existence were established before 1870 ; and more than a third of the present number have 'been created during the last decade. These executive departments, offices and institutions now employ about 6,000 persons and expend an- nually about $19,000,000." The committee then goes on to say that this constant increase of administrative oflScials, without order and without plan, has resulted in enormous waste of money and energy and a deplor- able lack of efficiency. Chief among the characteristic faults of the present arrangement are the failure to correlate the offices, the duplication of functions, ineffective supervision, the fact that offices with related objects are scattered among different cities or in different buildings of the same city, the lack of standards of compensation and of a budget system, inadequate accounting and insufficient advice from administrative depart- ments to the legislature. Under these arrangements, finally, while the general public is deluged with printed reports, it fails to re- ceive reliable Information in digestible form as to the conduct of the State administration, and is unable to locate definite responsibility for negligence or misconduct in public business. Public opinion usually con- siders the Governor responsible for the conduct of the State government ; but with the lack of effective executive control over the subordinate officials this opinion is not fully justified. At the same time, the popular conception of the Governor's responsibility, in the opinion of this Com- ^Report of Effloiency and Economy Committee, 1915, p. 7. Interesting ac- counts of efforts at administrative reform in several of the states are found in the American Political Science Review, X, 258 ; IX, 264, 273, 287 ; also see it. 294, and 488. 8/6. 204 STATE CONSTITUTION-MAKING. mittee, is based on a sound and just principle; and the machinery of State administration should be so organized as to enable this conception to be adequately realized." In order to effect such an organization as might secure a tolerable degree of efficiency and economy, the committee pro- posed a reorganization and consolidation of adminisrtrative offices into ten departments — after the manner of the executive departments at Washington, — each headed by an appointee, of the governor and senate, who should be responsible to the gov- ei-nor for the conduct of his department. The proposed depart- ments are Finance, Charities and Corrections, Education, Pub- lic Works and Buildings, Agriculture, Public Health, Labor and Mining, Trade and Commerce, Law, Military Affairs.' In addi- tion to these the contemplated administration would consist of a consolidated board of elections, the civil service commission and the secretary of state. Summaries of the various department reports should be pub- lished together in an official state manual." Incidentally, the committee protested vigorously against requiring administrative boards to be bi-partisan. Such a requirement makes it possible for a Governor by the use of patronage to exert in- fluence over the minority party in the General Assembly ; and at the same time it reduces the responsibility of the Governor for the acts of such boards, without definitely fixing responsibility on the minority members, or their party.' The rapid growth of administrative functions has been char- 155. acterized by the creation of boards and commissions, sometimes Administra- ' tive Boards, called adm,inistrative tribunals. They are variously elected and appointed and often partake of the nature of the legislative, executive and judicial functions of government — the separation of which it hasi been one of the cardinal principles of American constitutions to preserve.* They have been considered by some writers to form a fourth department and, indeed, along with the articles on the legislative, executive and judicial departments «/6. 24. =16. 28-30. "Several states publish such a manual at present, e. g.. Iowa, K5'.. R. I., Wis. ''Report, 31. 'Flnley and Sanderson, op. cit., 173. STATE CONSTITUTIOX-JIAKING. 205 a few constitutions" have a separate article on the administrat- ive department. These articles relate, however, to the duties of such constitutional offices as those of the auditor, treasurer and secretary of state rather than to the administrative boards,^ which are for the most part creations of statute law. Preceding paragraphs have, indeed, clearly indicated that the constitutions provide for a very small proportion of the state administrative officers. It is necessary to limit the present discussion to con- stitutional administrative offices, the chief of which is, in every state, that of the governor. The governor's powers and duties are of two kinds, those j,^^^- relating to the political or policy-determining functions of gov- |°^^''^P'' ^"^ ernment and those relating to the execution or administration Department. of policies already determined.^ The former have already been discussedi^ in connection with the enactment of laws by the legislature. The latter, together with the general constitutional provisions concerning the governor, will now be outlined. In every constitution save one, the supreme executive power of the state is vested in the governor. There are some clauses which make the executive department consist of other officers in addition, for instance, — The Executive Department shall consist of a Governor, in whom shall be vested the supreme executive power of the State, a Lieutenant-Gov- ernor, a Secretary of State, an Auditor, a Treasurer, a Sujwrintendent of Public Instruction, and an Attorney-General.' But Oklahoma^ alone nominally vests the executive power in several enumerated officials. In forty-six states' the governor 'e. g., Ind., VI ; Ore., VI. This book does not distinguish between "executive" and "administrative." -^Administrative boards find their prototypes in standing committees of the legislature. They were at first agencies for procuring information for the solu- tion of difficult problems. Now permanent commissions are chiefiy industrial and agricultural, scientific (e. g., boards of health), supervisory (e. g., corpora- tion and arbitration commissions), examining boards, educational, executive (e. g., highway commissions), and corrective and philanthropic. ''See Goodnow, P. J., Comparative AdmimstraUve Law, pp. 49-51, 71. ^Supra, ch. 10. "N. C, III, 1. For other examples, see Ala., V, 112 ; 111., V, 1 ; Neb., V, 1, 26 ; Okla., VI, 1 ; Pa.. IV, 1 ; Tex., IV, 1 ; W. Va., VII, 1. "V, 1, — "The Executive authority of the State shall be vested in a Governor, Lieutenant-Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner and Inspector, chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance, and other officers provided by law and this Constitution." ■ "All save Mass. and N. H. 206 STATE CONSTITUTION-MAKING. must "take care that the laws are faithfully executed.'" Sev- eral of these states' add that the governor shall expedite meas- ures resolved upon by the legislature. Half a dozen states" pro- hibit the suspension of the execution of laws without the consent of the legislature. These general provisions are, however, of little significance in practice. The governor is invariably elected by the qualified voters of Biecuon of ^^^ State. ^ The time of election also is usually prescribed.^ In Governor. order that the election returns may be officially convassed and finally declared, several constitutions provide canvassing boards made up of state officials, acting ew officio.^ The majority of the constitutions, however, provide that the two houses of the legis- lature, acting jointly, shall offlcia:lly receive and canvass the returns.* In one state,^ in case of failure to elect, the legislature, in joint convention, chooses a person to fill the office for the full term and until his successor is qualified. In another" the leg- islature is commanded to declare by law what officer shall act as governor upon the people's failure to elect a governor and lieutenant-governor. A large number of the constitutions have provisions concerning the determination of contested elections. Usually such contests must be decided by the legislature'^ or by 'South Carolina says "faithfully executed with mercy." 8N. Y., Wis., etc. 'Mass., Va., etc. 'So expressed in twenty-eight constitutions (e. g., Ala., Wyo.).' In other states the electorate is the same as that of the legislature or of the upper or lower house (e. g., Ga., N. H., La.), or is composed of adult male citizens (Me., Mass.), with some exceptions. Miss. (V, 140) provides that the person re- ceiving in any county or district the highest number of votes shall be deemed to have received as many votes as the county or district is entitled to members in the lower house of the legislature. ^The same as for members of the legislature (21 states: e. g., Ala., N. C), or of the lower house (Cal,, La., N. Y.), at the general election, (Colo., S. C), on the first Tuesday after the first Monday of November of a certain year and biennially or quadriennially thereafter, (e. g., 111., Ky.) or simply on that date biennially (Vt.), etc. In Maine It occurs on the second Monday of September biennially (In practice, even years), except for citizens absent from the state in military service, for whom provision Is made in great detail. 'e. fir., Minn., V, 2. Returns are made to the secretary of state, who acts with two or more Judges of the highest court and two disinterested judges of the district courts. In N. M. the governor Is a member of the board, of which the other two members are the secretary of state and chief justice. In Miss, this function is imposed upon the lower house of the legislature and in Vt. upon a joint committee of both houses. In a few states, the matter Is left to be pre- scribed by law. 'e. g., Ala., Ind., Mo., La., Tex., Wash. Minor details relating to procedural and other matters vary considerably. "R. I., Amend. XI, 3, 7. »Vt., II, 24. 'Ind„ V, 6 ; N. C, III, 3 ; Tenn., Ill, 2. STATE CONSTITUTION-MAKING. 207 a legislative joint committee.^ Nearly all of the constitutions prescribe a method of determining the election in case of tie votes. Usually the legislature decides among those whose popu- lar votes are equal." Forty states require that the governor shall be of a specified Q^■^^fgpJ^. age/ — twemty-flve,- thirty,^ and thirty-five years.^ Most of thegons^of^ states require that he shall be a citizen of the United States.^ many of them specifying from two to twenty years of citizen- ship, and one that he must be a "natural-born citizen."" In the thirteen constitutions which particularly specify terms of citi- zenship in the state, the variations are from two' to ten years,' five years" being the most usual requirement.^ Several states^ specify that the governor must be a qualified elector. .About three-fourths of the states^ prescribe residence qualifications, ranging from one to ten years in the state. The fact that one has already served as governor may dis- qualify him in eighteen states. In several* he may not be his own successor.^ He is, however, expressly declared to be re- eligible to the governorship in one state." In another' the dis- 'Del., Pa. In the latter (IV, 2, 17) contests are determined by a committee selected from both houses o( the legislature and formed and regulated in a man- ner to be prescribed by law and presided over by the chief justice of the highest court, who decides upon the admissibility of evidence and, on request of the committee, pronounces on questions of law. "e. g., Ind., V, 5 ; Tex., IV, 3. In Ky. (70) determination is by lot as the legislature may direct. In Me. (V, Pt. I, 3, IX, 4. Amend. 23, 24) and Mass. (Pt. II, eh. II, sec. I, 3, Amend. 23, 24) the lower house chooses two from among the four candidates having the highest vote and the senate decides be- tween them. In Vt. (II, 39) if no one has a majority the legislature decides the winner from among those having the three highest numbers of votes. In Cra. (V, sec. I, 5) similarly, from two highest. lAll except Fla., Kan., Mass., O., E. I., Vt., Wash., Wis. ^Ariz., Cal., Minn., Nev. ^e. g., Del., Ga., Ind., Me., Tenn. Thirty at time of election ; e. g., Ala., la., Mont. - r the governor shall serve until his successor is qualified, irrespect- ive of his term of office.' Twenty-one constitutions require that the governor's salary shall be fixed by law," twenty-two fix it at specified sums per 'For typical provisions, see Cal., V, 12 ; Neb., V, 2 ; also see N. H., II. 94. »N. D., Ill, 81 ; S. D., IV, 11 ; Wye, IV, 10. 'Any person who denies the existence of a Supreme Being is sometimes in- eligible to the governorship, — S. C, IV, 3 ; see Tenn., IX, 2. 'Tex., IV, 6. 'N. M., XX, 14 ; similar provisions, likewise applying to officials generally, are found in several other constitutions. *e. g., N. C. In N. H. (II, 83) he must take an oath of allegiance. 'Mass. »Ala., Cal., Del., Fla., in., Ind., Ky., La., Md., Miss., Mo., Mont., Nev., N. C, Okla., Ore., Pa., Utah, Va., Wash., W. Va., Wyo. 'N. J. «e. g., Ala., V, 110. See Vt., II, 41, and La., 64. •e. g., Ala., W. Va. STATE CONSTITUTION-MAKING. 209 annum, varying from .fl,500 in Oregon to |10,000 in California and New York.^ The constitution expressly requires the governor of Maine to reside in the state during his term of office ; one-third of the constitutions- require hiin to reside at the seat of government. Several others make the same requirement but allow exceptions, for example, during epidemics^ and when the legislature is in session elsewhere.^ Two states'* require that he shall be pro- vided with an executive mansion. His executive powers and dnties are, so far as prescribed in , isp. ^ ' ^ Adminlstra- the constitution, in the main as follows, — In the first place, he tive Powers ' ) X- 7 ^„3 Duties. must appoint many subordinate administrative officials, some of them entirely from his own selection, others subject to con- firmation by the legislature, senate or council. His own ap- pointees are comparatively unimportant and include chiefly i6i. militia officers." Other examples are notaries public,' railroad ments by the ^ '^ Governor. commissioners,^ board of charities and corrections,' two civilian memhers of the board of pardons^ and an intermediate court of appeals^ from judges of the general trial court. Subject to confirmation by the legislature in joint session the Governor of Virginia^ must appoint the members of the state corporation commission. Subject to confirmation by a majority of all the members elected to the senate, the governor of Dela- ware must appoint the secretary of state,* commissioners of agriculture,^ the chief justice, associate judges and chancellor of the state," justices of the peace and judges of inferior courts established by the legislature.' Likewise, with the approval of two-thirds of all the members of the senate, the governor of Pennsylvania appoints the secretary of state, attorney general iThe defeated constitution of N. Y., 1915, would have made the salary $20,000. It is $2,000 In Utah ; $2,500 in Neb., S. D. and Wyo. ; $3,000 in Ga., Id., N. D. ; $3,500 in Ark. and Fla. ; $4,000 in Ariz., Tex. and Wash. ; $4,500 in Md. and Okla. ; $5,000 in Colo., Mich., Mont., N. M., Va., Wis. ; and $7,500 in La. Vari- ous provisions exist regulating increase and decrease of salary, other compensa- tion, expenses, etc. H. g., Ariz. sAla., S. ( . 'N. D., Ill, 76. ''S. C, Tex. 2N. Y., VI, 2. =N. Y., Tex. 3XII, 155. «e. g.. Ind., XII, 2 ; Ky., 222. "Ill, 10. 'Ala., VI, 168. "XI, 3. seal., XII, 22. «IV, 3. »La., 295. 'IV, 32. 14 210 STATE CONSTITUTION-MAKING. 162. Division and Unity of Adminis- tration. and STiperintendent of public instruction,' and, with the ap- proval of two-thirds of the senate, the governor of Texas appoints notaries public. Confirmation merely by the senate is the most usual require- ment. Here may be mentioned as examples the trustees of the Alabama Polytechnic Institute ; the members of the California state board of prison directors and of the Colorado board of land commissioners; judges of the general trial court and crim- inal courts, the state's attorney in each judicial circuit and the prosecuting attorney for each county criminal court of record, and certain militia oflSoers in Florida; the secretary of state, commissioner of the land ofSce, chief justice (from among the members) of the highest court, justices of the peace and certain military oflScers in Maryland; judges of the highest court, trial and chancery courts, boards of levee commissioners and certain military officers in Mississippi; various judicial officers, secre- tary of state and others in New Jersey ; superintendents of pub- lic works and of state prisons and other officials in New York ; magistrates and other officials in South Carolina; secretary of state and members of the board of prison commissioners in Texas and state examiner, engineer, geologist and inspector of mines in Wyoming." These examples are adequate to indicate the relatively small proportion of the administrative officers which the constitu- tions require to be appointed by the governor. This is one of the most pertinent facts to be noted in the study of constitu- tional clauses relating to administration. While students of adminisrative needs have been advocating a co-ordinated system of administration, of which the governor should be the respon- sible leader and head, constitution-makers have continued the old-time habit of leaving the several branches of the adminis- tration independent and isolated. The constitution of Okla- homa^ even goes so far as to command the legislature to =IV, 8. "Where councils o( state are provided' by the constitution, their consent may be required for certain o£ the governor's appointees. Thus in Maine, most of the judges as well as coroners and notaries public are so appointed ; In New Hampshire, Judicial officers, the attorney general, coroners, Held officers of the mllltia and naval officers ; in Massachusetts, judicial officers, the solicitor-gen- eral, coroners and notaries public ; the "advice" of the council is necessary when certain military officers are appointed. IV, 60. STATE CONSTITUTION-MAKING. 211 provide by law for tbe establisbment and maintenance of an efficient system of checks and balances between the officers of the Executive Departmnt. This provision is characteristic of the practice found generally in the states. Whether designedly or not, administrative offl- '• cials who are not responsible to some one administrative chief are as likely to check and hinder one another as to labor together for the public welfare. The divided administration of the states stands in striking contrast to the federal administration which is united under the direction of the president. Of scarcely less importance than the careful selection and ^g^^^^i definite responsibility of administrative oflacers is the power of ^^^g^m^^i removing them not only for misconduct but for inefflciency. Ee- moval is in practice accomplished in several ways, notably by impeachment,^ by joint resolution of both houses of the legisla- ture,' by the courts,* by popular recall by means of an election held on petition of a small percentage of the electors,' by the appointing power," by methods to be prescribed by the legisla- ture,' and, finally, by the governor or governor and legislature or senate. The governor is empowered by a few constitutions to remove 164. ° r- J Removals by public oflScers, sometimes all administrative officers, sometimes the Governor, merely his own appointees. For example, in one state^ he may during the recess of the legislature remove any state adminis- trative officer for gross neglect of duty or corrupt conduct or for misfeasance or malfeasance in office. In another* he may remove his appointees for incompetency, neglect of duty or mal- feasance in office.^ In a third,^ with consent of the senate, =Every state except Ore. (VII, 6) provides for impeachment. The officers im- peachable are not specified in Id., N. Y. and N. C. In some states (e. g., Mich., IX, 1) all civil officers or all civil and judicial officers (e. g.. Me., IX, 5 ; VI, 4) are impeachable. Several constitutions do not specify grounds for impeachment ; in others, the stated grounds vary from incompetency (Ala., VII, ITS) to crime. Ordinarily Impeachment is by the lower house of the legislature (but see Neb., II, 14), and trial by the senate (but see N. Y., VI, 13; Neb., II, 14). »e. g., Ind., VI, 7; La., 220; Va., V, 73. «Ky., 172 ; Miss., VI, 175 ; Neb., Ill, 20 ; Ore., VII, 6 ; S. C, IV, 22 ; XVII, 8 ; Tenn., V, 5. "e. g.. Ore., II, 18. See, infra, p. 219. «Pa., VI, 4. 'e. jr., Ind., VI, 8. Where modes of removal are prescribed, the legislature cannot provide others. See Commonwealth v. Oamble, 62 Pa. St., 343. sMlch., IX, 7. »N. M., V, 5. •See also Del., XV, 6 ; Colo., IV, 6 ; Md., II, 15 ; XV, 1 ; Neb., V, 12 ; 111., V, 12; W. Va., VII, 10. '•Fla., IV, 15. 212 STATE CONSTITUTION-MAKING. officers not liable to impeachment may be removed by the gov- ernor for malfeasance, or misfeasance, or neglect of duty in office, or commission of felony, or for drunkenness or incom- petency. "For reasonable cause," on address of two-thirds of the members elected to each house of the legislature the gov- ernor of Delaware must remove any officer except the lieutenant- governor and a member of the legislature.^ The power of removal by a superior administrative officer raises a very important question. Shall removal be summary or shall the subordinate official be given the right to a hearing or trial? The former method prevents formalities and delays and if used carefully by conscientious officials doubtless makes for efficiency. The latter method lessens the danger of dismis- sals without cause on personal or political grounds.* The power of suspension is also occasionally conferred on the governor. One state' makes it the duty of the governor to sus- pend allegedly defaulting state and county treasurers and de- faulting tax collectors pending investigation of accounts and to make temporary appointments to fill offices during investiga- tions.^ In a few states, also, the governor must regularly inves- tigate or appoint a committee to investigate certain public offices.' In most states he must issue or at least sign commis- sions to public offices, or certain ones of them.* In about three-fourths of the states the governor may exact Miscellaneous reports from administrative — and sometimes military — officers.® GovernM^ "^ Many constitutions make the governor a member of certain administrative boards, especially, educational, penal and char- itable. He is one of the land commissioners in three states ;^ a member of the board to elect members of the state board of appraisers in Louisiana and of the board of equalization in half a dozen states.^ 2III, 13. For similar clauses, see Pa., VI, 4 (2/3 senate) ; S. C, XV, 4; Me., IX, 5 (Governor must also have advice of council). *See Civil Service Trial Boards, by Borough President Marks of Manhattan, Review of Reviews, LIII, 458 (1916), for interesting account of trials before board composed of representatives of both official and worljing forces. "Miss., V, 125. «See also Fla., IV, 15; Va., V, 73. 'See Id., IV, 8 ; Mich., IX, 7 ; Miss., IV, 60 ; Mont, VII, 10 ; Utah, VII, 5. "e. g., S. C, IV, 17; N. J., VII, sec. II, 10; Del., Ill, 12; Ida., IV, 16; Ind., XV, 6. "e. g., ma., V, 15 ; N. C, III, 7. 'Ida., Okla., Wyo. ^Colo., Ida., Mo., Mont., Okla., Utah. STATE CONSTITUTION-MAKING. 213 That powers and duties may be prescribed for tiie governor by law is occasionally specified.^ Sometimes he must conduct all business with other state and foreign governments* or trans- act necessary business with officers of government.^ With the advice and consent of the council- he may sign warrants for the issue of money out of the treasury in Massachusetts/ and in Vermonf^ he may draw on the treasurer for such sums as the legislature may appropriate. In Alabama* he may negotiate temporary loans not to exceed 1300,000. In Misouri'' he ap- proves depositary banks and their security for state money.^ In a numiber of states he must account to the legislature for moneys received and paid out- and sign grants issued by the state.^ The governor is liable to impeachment in every state except i66 ^^ Oregon.* More than half of the states specify grounds upon impeach- which the governor is to be liable to impeachment ; for instance,^ for high crimes and misdemeanors, non-feasance or nialfeasance in ofQce, incompetency, corruption, favoritism, extortion or op- pression in office, or gross misconduct, or habitual drunkenness. In many states the governor is suspended from office pending the result of impeachment proceedings." In case the office of governor is vacated there is in every i67. Guberna- state a constitutionally specified officer who forthwith either toriai . Succession. becomes governor or performs the functions of the governor. In most of the states he is an officer elected chiefly for the pur- pose and called the lieutenant-governor. The second officer in 'e. g., m., V, 1 ; Okla., V, 1. 'e. g., Tex., IV, 10 ; Vt, II, 20 ; Va., V, 73. =6. g., Ind., V, 15. «Pt. II, eh. II, Sec. I, 11. 'II, 20. »XI, 213. »X, 15. ^Por provisions in regard to the governor's duties in making financial estimates, see infra, ch. 14. 2e. g., Ala., V, 123 ; Colo., IV, 8 ; 111., V, 7 ; Mo., V, 10. »e. g., Md., IV, 13 ; N. J., VIII, 3 ; N. C, ril, 16. Concerning governor's clerical force, see, e. g., Ga.j V, sec. I, 19. One of the most important of the powers commonly conferred upon the governor is that of pardoning persons con- victed of crime. In about two-thirds of the states the governor alone may grant pardons. In Conn. (IV, 10) apparently only the legislature can grant pardons. In the other states the governor acts in conjunction with or by the' advice of a board of pardons. Thus in several states (e. g., Fla., IV, 12) pardons must issue from the board of pardons, composed of the governor, secretary of state, comptroller, attorney general and commissioner of agriculture, by vote of a ma- jority, including the governor. In Cal. (VII, 1) a convict twice convicted of a felony cannot be pardoned except, on recommendation of majority of supreme court. In Me., N. H. and Mass. associated with the ge. g., Nev., II, 9. =e. g., Cal., XXIII, 1. 'e. g., Kan., IT, 5; La., 223 (2). 220 STATE CONSTITUTION-MAKING. The recall is best considered simply as an instrument of de- mocracy — a means potential but seldom to be used, through which the people may secure control of their governing agents.* The object of the present chapter has been to outline the lead- Con^fiisi n ^^^ Constitutional provisions concerning the governor and other state administrative officials, to present the administrative prob- lem that confronts American states and mention a few of the things that have been and may be done toward its solution. The constitutional powers and duties conferred upon administrative ofiicials have been shown to be varied but seldom extensive and supplementary statutes have added to the number of officials and to the functions of those already created in a piecemeal fashion not calculated to produce efficiency on the part of the administration considered as a whole. Centralization of ap- pointing and removing power, whereby responsibility may be made definite, and competitive examinations for the selection of minor offlcials have been mentioned as prerequisites of eflS- cient administration. The I'ecall has been suggested as a method of holding the appointing offlcials strictly accountable to the people. Tennessee Note. — In the governor, eldcted ibiennially and ineligible for more than six years in any term of eight, is vested the supreme executive power of the state and the mandate to take care that the laws be faithfully executed." He must be thirty years of age and must have been a citizen of the state seven years. He is given the power to veto acts and joint resolutions," to grant pardons, to require information from executive officers upon any subject relating to their duties, to con- vene the legislature in extraordinary session and determine the business which' it shall consider at such session.' He is commander in chief of the militia but cannot call it into service without the consent of the leg- islature.' He is given the duties of issuing writs of election to fill vacancies in the legislature, of appointing special judges of th« supreme court when regular judges are disqualified, of making temporary appoint- ments of other officers, of keeping the great seal and signing all grants and commissions and of giving information- and making recommendations to the legislature." ■"Neeaiess to aay the recall may be made an effective deterrent to tbe building up of political machines. "Ill, 1, 2, 4, 10. »III, 18; II, 18. 'Ill, 6, 8, 9. sill, 5. »II, 15; VI, 11 ; III, 14, 15, 16, 11. State constitution-making. 221 The other constitutional state administrative officers are the secre- tary of state, comptroller ancl treasurer, elected by joint vote of the houses of the legislature, the attorney general, chosen by the judges of the supreme court,^ and the adjutant general, appointed by the governor, and other militia officers.'^ The governor and other constitutional offi- cers, except officers of the militia, are liable to impeachment.' The statutory administrative officers, boards and heads of depart- ments are variously appointed, by the legislature, governor, governor with consent of the senate and by other officers. They are, in the order given by the Tennessee Dirctory,* as follows: (1) the three state revenue agents; (2) the commissioner of insurance; (3) the commissioner of fire prevention; (4) the commissioner of agriculture; (5) the superin- tendent of public instruction; (6) the state board of health; (7) com- missioner of food and drugs; (8) the chief mine inspector; (9) the shop and factory inspector; (10) the railroad commission; (11) the state geologist; (12) the two ex officio state boards of equalization; (13) the state librarian; (14) the clerk of the department of archives; (15) the state land commissioner ; (16) the superintendent of the cap- itol ; (17) the Tennessee board of control; (18) the state board of edu- cation (the governor, superintendent of public instruction and nine citi- zens) ; (19) the ex officio text-book commission; (20) the superintendent of banks; (21) the state board of pension examiners; (22) the warden of the department of game, fish and forestry; (23) the chairman of the state department of highways ; (24) the ex officio state printing com- mission; (25) the trustees of the Tennessee state fair (the commissioner of agriculture, chairman) ; (26) the state auditor ; (27) the state board of law examiners; (28) the ex officio state funding board; (29) the state board of pharmacy; (30) the state board of embalmers; (31) the state board of election commissioners; (32) the state board of dental examiners and (33) the secretary of the state board of charities. The superintendents of the hospitals for the insane and some other state in- stitutions, all of whom are under the supervision of the board of control, are listed in the directory which is Relieved by the secretary of state's office to be complete. It omits, at least, the trustees of the University of Tennessee and the state coal oil inspectors. Whether the arrange- ment adopted by the directory is meant to be typical of the character of the state's administrative organization can only be surmised." 'Ill, 17 ; VII, 3 ; VI, 5 ; district prosecutors are attorneys for the state, VI, 5. 2VIII, 1, 2. 'V, 4. Judges and attorneys general are removable also by concurrent vote of two-thirds of each house of the legislature (VI, 6). ^Published by Secy, of State. "There is no general requirement for civil service examinations. The recall for municipal ofScers is provided for in a few city charters (e. g., Knoxville, Private Acts of 1911, ch. 498, sec. 22, subsec. 4 ; Jackson, Private Acts of 1915, ch. 168, sec. 28), and by means of the so-called Ouster Law (Acts of 1915, ch. il ; see Const., V, 5) certain officials may be removed by court procedure. See Some Recent Uses of the Recall, by Mr. J. Stuart Fitzpatrlck, to be in National Municipal Review, July, 1916. 222 STATE CONSTITUTION-MAKING. CHAPTER XIII. The Interpretation of the Law.^ The application of general law to particular cases frequently 177. involves grave difficulties. No matter how inclusive a statute Function of may be nor how detailed its provisions, there are likely to arise instances to which its application or the manner of its application is doubtful. No matter how simple and restricted a statute may appear, similar doubts concerning its applicabil- ity may arise. Furthermore, voluminous as is the body of statute law, it makes mo attempt to cover all of the contingencies over which disputes commonly arise. Upon the customs of the people, founded upon the common idea of what is just, the deci- sion of most cases must depend. What is the meaning of a statute or constitutional clause and what is the custom of the people governing a given, state of affairs is not always easy to determine. Its determination, however, often affects public and private rights and interests of the very highest importance. Consequently, from the very dawn of civilized government . there has been recognized a governmental department, second to none in importance, whose sole function has been to decide what written laws mean and what actually are the popular customs, about, through its decisions, to be invested with the authority of law. Fundamentally the courts are part of the administra- tive branch of the government. Their function is not to formu- late policies but to aid in the execution of policies already formed. Though they sometimes base their decisions upon what they call "public policy," they consider the policy interpreted, not determined, by themselves. Every administrative officer to some extent must interpret laws, otherwise he could never put them into operation. For the courts is reserved the interpreta- tion of laws concerning which there is considerable difference of opinion. Trial of civil cases usually occurs on complaint of 'General References: Baldwin, S. E., The American Judiciary; Haines, C. G., The American Doctrine of Judicial Supremacy ; McLaughlin, A. C, The Courts, the Constitution and Parties; Ransom, Wm. L., Majority Rule and the Judiciary ; Storey, Moorfleld, The Reform of Judicial Procedure. STATE CONSTITUTION-MAKING. 223 individuals whose private rigMs are affected. Sometimes, how- ever, the judges of the courts must give advisory opinions to governmental oflScials relative to the meaning of constitution or statute. Varied and often lengthy provisions upon the subject of the courts and the judges who compose them are found in all of the state constitutions. The organization of the state courts of last resort, the courts, which finally determine what the law is in a- particular case, together with some mention of inferior courts and of a few of the problems which have arisen in con- nection with the judiciary, forms the subject of the present chapter. General provisions for the establishment of a highest court ^j^i^s^j^^ are found in all of the constitutions.^ Though variously named,' court, it is known in the great majority of the states as the Supreme Court.* The judges of the highest court are, in eleven states, appointed, — (1) by the governor,^ (2) by the governor and senate," legislature^ or council,* and (3) by joint vote of the two liouses of the legislature." In thirty-seven states they are elected by the voters — ^usually by the state at large, but in a few in- stances by separate districts.^ In a few instances, too, they are elected by the voters of the state, but must reside in differ- ent portions of the state.^ In number supreme judges vary from three' to eight.* While only a few states leave tiie nuiflber entirely to the legislature,^ =e. g., Ind., VII, 1; Tenn., VI. 1. N. Y. (VI), Mass. (Pt. I, XXIX; Pt. II,— ch. II, sec. I, XIII ; ch. HI, I and II, etc.) and N. H. (Pt. II, 92. Pt. II, 72-81) mention and regulate their highest courts, thus taking for granted their existence. 'N. T., Ky., Md., — Court of Appeals. Me., Mass., N. H., — Supreme Judicial Court. N. J., — Court of Errors and Appeals. Va., W. Va., — Supreme Court of Appeals. Conn., — Supreme Court of Errors. *38 states ; e. g., Ind., Tenn. "Miss., VI, 145. «Del., IV, 3 ; N. J., VII, sec. II, 1. 'On nomination of governor appointed ty legislature in manner prescribed by law. Conn., Amend. XXVI. sMe., V, Pt. I, 8 ; JIass., Pt. II, ch. II, sec. I, 9 ; N. H., II, 45, 46. »R. I., X, 4 ; S. C, V, 2 ; Vt., II, 42 ; Va., VI, 91. '111., VI, 5, 6 ; La., 87 ; Md., IV, 4 ; Wis., VII, 4,— "as now provided by law" — t. e., from districts. =e. g., Ind., Vlli, 3; Tenn., VI, 2. "Id., Miss., Nev., Tex., VVyo., also in other states with provision that number may be increased (or, in la. and Ariz, diminished) by legislature, unconditionally or upon a certain event. *Md. "e. g., Mass. 224 STATE CONSTITUTION-MAKING. 179. Qualifica- tions of Supreme Judges. considerable legislative discretion is allowed in altering the original number. The work of the courts sonaetimes accumu- lates to such an extent that cases must wait many months, or even years, for a hearing. To avoid the inconvenience of such a state of affairs a few constitutions provide for special courts or an increase in the number of judges until the bulk of the awaiting cases may be disposed of. Thus in New York," when- ever a jnajority of the judges certify to the governor that the court is unable, from accumulation of cases, to hear and dispose of them within a reasonable time, the governor must designate not more than four judges of the general trial court to serve. as associate judges of the highest court, until undisposed cases are reduced to two hundred. In South Carolina,^ under certain cir- cumstances, the judges of the general trial court may be called to the assistanice of the supreme judges — for example, whenever^ upon hearing of any cause or question, it shall appear to the judges, or any three (majority) of them, that there is involved a question of constitutional law, upon determination of which the entire court is not agreed. Twenty-one states lay down specific age requirements for supreme judges, varying from twenty-five' to thirty -five" years. Citizenship and residence qualifications are frequently speci- fied.^ One state^ requires supreme judges to be of good moral character. Ten states^ require them to be learned in the law, and seventeen* to have been admitted to the practice of law or to have served as a judge of some court." i^VI, 7. See, also, O., IV, 22; Va., VI, 89. 'V, 12. 8Fla., Wis. ; 26, S. C. ; 30, v. g., Tex. »Ky., La., Tenn. 'e. g.. Ark., VII, 6 ; Ind., VII, 3 ; Tenn., VI, 3. Wis. specifically requires judge to be qualified elector witiiin district for which chosen (VII. 10). 'Avk., VII, 6. 'e. g.. La., 86. 'e. g., N. Y., VI, 20. "La., 86, — Admission to practice must have been ten years previous to election. In Ky. (114), a supreme judge must have been admitted to practice or served in a court having general nlH pHus or similar jurisdiction for a time which added to the time he has practiced amounts to at least eight years. STATE CONSTITUTION-MAKING. 225 The specified terms of office for supreme judges vary from ^^^^O- ^^^ two" to twenty-one^ years.* In Rhode Island" the judges hold °**''®' their office until it is declared vacant by the legislature. The New Hampshire bill of rights^ declares that it is the best policy "that judges of the supreme judicial court should hold their offices so long as they behave well, subject, however, to such limi- tations on account of age as may be provided." In half the states the term of office ends at different times for different mem- bers of the court.^ Sometimes there are provisions^ that judges must retire on reaching a certain age. A supreme judge is, by a few constitutions, prohibited from sitting in specified cases as, for example, where he was a mem- ber of the lower court,* counsel in the case, or interested in it,° or related to either party." Several states forbid active prac- tice of law by the judges, at least in courts of record in the state.'' Pour states' forbid Imposition of non-judicial duties upon the judges. Others, as already observed,' esipecially give them other functions. The compensation of supreme judges is left largely to the isi. legislature. Salaries, as specified by the constitutions, vary t'™- «Vt., II, 44. 'Pa., V, 2. (Not eligible to reelection). sFour years : Kan., Ill, 5. Six years ; Fla., V, 2 ; Ida., V, 6 ; Ind., VII, 2 ; Kan., Ill, 2 ; Mont., VIII, 7 ; Nev., VI, 3 ; N. M., VI, 12 ; Okla., VII, 3 ; Wash., IV, 3. Six years and until successors am elected and qualified : Ariz., VI, 3 ; Ga., VI, sec. II, 4 ; la., V, 3 ; Minn., VI, 3 ; Neb., VI, 4, 5, 20 ; N. D., IV, 91 ; S. D., V, 8, 36 ; Tex., V, 2. Six years and until successors are elected or appointed and qualified : Ala., VI, 155. Six years ; may be extended ; extension not to affect term for which judges are elected : Utah, VIII, 2, 24. As prescribed by law ; not less than six years : Ohio, IV, 2 ; XVII, 2. Eight years : Ark., VII, 6 ; N. M., IV, 6 ; Tenn., VI, 3 ; Wyo., IV, 4. Bight years and until successors are qualified : Ky., 112 ; N. C, IV, 21, 25. Nine years : Miss., VI, 149. Nine years : to hold until successors qualified : 111., VI, 6, 32. Ten years : Colo., VI, 6 ; Mo., VI, 2 ; Wis., VII, 4. Ten years and until successors are elected and qualified : S. C, V, 2. Twelve years : Cal., VI, 3 ; La., 86 ; W. Va., VIII, 2. Fourteen years, N. T., VI, 7. »X, 4. >35. In Mass. (Pt. II, ch. Ill, 1) they hold office during good behavior. %. g., Ala., Wyo. 'Conn., Amend. XII (70 years) ; La., 86 (75 years; on full pay if service con- tinuous for 15 years previous). '■e. g., N. Y., VI', 3. "e. g., Tex., V, 11. »e. g., Tenn., VI, 11 ; Utah, VIII, 13. ' ■>e. g., N. T., VI, 20 ; Va., VI, 105. •N. D., IV 96 ; Pa., V, 21 ; Wyo., V, 16, and, with exceptions. La., 06. 'e. g., supra, p. 215. 15 226 STATE CONSTITUTION-MAKING. 182. BemoTal. 183 The ciiief Justice. 184. Time and Place of Holding Court. from |1,500^ to |8,000.^ Occasionally fees and perquisites are forbidden.^ A few constitutions provide for the removal of judges, under certain restrictions, by the governor, upon address of the legis- lature* or by the legislature itself.^ The filling of vacancies is provided for by about half of the constitutions — usually appoint- ment by the governor until a successor is elected." There are also numerous provisions for the appointment of special judges to hear particular cases in case of absence, illness or equal divi- sion of opinion among the regular judges. '^ About two-thirds of the constitutions provide for a chief justice of the highest court. In a few he is elected as such;* in others the court decides which of its memibers shall be chief justice ;° in Florida the judges designate one of their number by lot; in Maryland he is chosen from among the members by the governor and senate; in Oklahoma the matter is left to be determined by law; in other states there exist various rules of precedence : for example, the judge having the shortest time to serve^ and the judge who has served longest as a member of the court. ^ Some of the constitutions contain regulations of the terms of court, for example, that there shall toe a certain number of terms each year.^ About three-fourths of the states make some mention of the place of holding court. Most of them specify that it shall be at the seat of government ;* though a large num- ber^ name other places where the court may or shall also sit, ^Kan., Wis. (not less than .$1,500). The salaries actually paid vary from $2,500 (Vt.) to $14,200 to the chief justice and $13,700 to the associate justices (N. T.). =Cal. 'e. g., Tenn., VI, 7 ; Wis., VII, 10. Mileage is provided for in W. Va. and prohibited in Mont. *e. g., Ky., 112. "e. fir., N. y., VI, 11; N. C, IV, 31. «e. g.. 111., VI, 2, 32 ; Tex., V, 28 ; Wash., IV, 3. 'See, e. g., N. M., VI, 6; Pla., V, 6; Mo., YI, 11. »Ark., VII, 2 ; Cal., VI, 3 ; Minn,, VI, 2, 3 ; Mont., VIII, 8 ; Neh., VI. 5 ; N. T., VI, 7. "Ala., 111., Mo., Okla., S. D., Tenn., Tex. lArlz., Pa., Wash., etc. ^See Kan., Ill, 2 ; Ky., 118 ; Nev., VI, 3 ; Wis., VII, 4. In Del. the principal courts of the state are held by six state Judges ; when sitting as the Supreme Court the Chancellor, or, in his absence, the Chief Justice, presides. (Art. IV, and amendment approved Mar. 12, 1913.) "Varying from one (La., etc.) to "at least four" (Ida., subject to legislative alteration after six years.) 'e g., Ariz., Ark. Several merely say that the place shall be prescribed by law. "Ala., Ida., 111., Kan., Ky., Md., Mlun., N'. C, N. D., 0., Ore., S. C, S. D., Tenn., Wash., Wyo. STATE CONSTITUTION-MAKING. 227 at least in times of peril. ° Nine constitutions authorize the high- est court, usually at its own option, to sit and hear causes in separate divisions.^ The jurisdiction of the highest court is appellate, revisory i.85._^^_^^ and original.^ The appellate jurisdiction is su'bject to many constitutional limitations. Sometimes the court itself may re- quire particular cases to be brought 'before it for determination," sometimes certain classes of cases which may be appealed are named in the constitution;^ sometimes appeals to the highest court are allowed from specified inferior courts.^ Revisory jurisdiction where conferred upon the court extends usually to superintending control over inferior courts,^ and in one or two states, over the proceedings of administrative officers and of commissioners and boards created by law.* Original jurisdic- tion^ is usually conferred upon the highest court for the is- suance of certain writs, as mandamus or quo warrcmto,^ and occasionally in suits against the state and other special cases.'' Some of the constitutions contain procedural regulations or authorize the highest court to make or amend rules governing procedure. To take a single example, Maryland' requires the judges of the Court of Appeals to make and: publish rules and regulations for the prosecution of appeals to said appellate court whereby they shall prescribe the periods within which appeals may be taken, what part or parts of th« proceedings in the court below shall constitute the record on appeal and the manner "Ala., Ky. The time of holding the court is sometimes prescribed, — e. a., Ky., 112; Md., IV, 14. 'Thus in Ga. (IV, sec. II, 8) the court has power to hear and determine cases sitting in a body or in two divisions of three judges, under regulations prescribed by the legislature ; the court has power to hear and determine cases in a body or in two divisions ; a majority of a division constitutes a quorum for that division. See, also. Gal., VI, 2 ; Colo., VI, 5 ; Fla.. V, 5 (1902), Kan., Ill, 2 ; Ky., 118 ; Mo., VI, 1, 2, 3, 4a ; S. D., V, 11 ; Wash., IV, 2. 'Sometimes appellate only, — e. g., Ky., 110. "See Cal., VI, 4 ; La., 101 ; 0., IV, 2. le. g., Ariz., VI, 4 ; Colo., VI, 1 ; La., 85 ; Wash., IV, 4 ; W. Va., VIII, 3. -e. g., Del., IV, 12 (4) ; Ky., 127 ; N. T., VI, 1. There are also certain miscel- laneous limitations as that the legislature may restrict the right of appeal ; see N. y., VI, 9 ; 6a., VI, sec. II, 9, 5 ; la., V, 4 ; Da., 101 ; Mo., VI, 6 ; O., IV, 6 ; Va., 88. ^About one-third of the states, — e. g., Mich., VII, i ; Wis., VII, 3. 'O., IV, 2 ; Okla., VII, 3. =e. g., Ind., VII, 4 ; Trx., XV, 6. »See, e. g., 0., IV, 2. 'e. g., Ida.. V, 10 ; N. C, IV, 9 ; Neb., VI, 2 ; Tex., XV, 6. Ga. (VI, sec. II, V) forbids the court to exercise original jurisdiction. =IV, 18. See, also, e. g., Mich., IV, 18; Miss., VI, 147. 228 STATE CONSTITUTION-MAKING. 186. Decisions. in wlilch such appeals shall be brouglnt to hearing or determination, and shall regulate, generally, the practice of said Court of Appeals so as to prevent delays and promote brevity in all records and proceedings brought into said court, and to abolish and avoid all unnecessary costs and expenses in the prosecution of appeals therein." Constitutional directions for arriving at decisions are fre- quent. For instance, in Oregon,^ if the Supreme Court shall be of the opinion . . . that the judg- ment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial ; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered In the court below. It shall direct such judgment to be entered." 187. Advisory Opinions. More than one-third of the constitutions specifically require decision to be by a majority of the court.' In one state an equally divided court affirms the decision of the court below.* Seven states" require their highest courts to give advisory opinions to other branches of the government. Obviously there may be much saving of time and effort if the judges who may later be called upon to determine the constitutionality of legis- lation or the validity of administrative actions shall give opin- ions, even though unofficially, in advance. The legislature, by consulting the court prior to the consideration of bills whose constitutionality is doubtful, may with jnore assurance proceed »See, also, Cal., VI, 4 ; Del., IV, 27, 28 I Fla.. V, 40 ; Ga., VI. sec. II, 5, 6, 9 : la., V, 4 ; 111., VI, 8 ; Md., IV, 18 ; Mich., VII, 5 ; Miss., VI, 147 ; Olila., VII, 8 ; Ore., VII, 3 ; Tex., V, 2,'5 ; Utah, VIII, 9 ; W. Va., VIII, 6. iVII, 3. Persons convicted of crime not to be given greater penalty than in trial court. "See, also, Ariz., VI, 22; Cal., VI, iyi. 'e. g., Ariz., VI, 2 ; O., IV, 2 ; Tenn., VI, 2. Occasional exceptions. Md. (IV, 15) forbids decision by fewer than three (out of eight) judges. *0., IV, 2. See, also, Mo., VI, 11. Wash., IV, 20, orders that ordinarily the superior court should reach a decision within 90 days. But see 33 Wash., 200. "Me. (VI, 3), — Upon important questions of law and upon solemn occasions when required by governor, council, senate or house of representatives. Mass. (Pt. II, ch. Ill, 2) and N. H. (II, 73), — Upon Important questions of law and upon solemn occasions ; on request of governor and council or either branch of legislature. E. I. (Amend XII, 2), — Upon any question of law; on request of governor or either branch of legislature. Col., VI, 3, — Upon important questions of law and upon solemn occasions ; on request of governor or either branch of legislature ; opinions published in con- nection with report of decisions of court. Fla., IV, 13, — Upon governor's constitutional powers and duties ; on request of governor ; opinion to be in writing. S. D., V, 13, — Upon governors constitutional powers and duties, and upon solemn occasions. STATE CONSTITUTION-MAKING. 229 to enact or defeat them. Administrative oflficers, likewise, may be saved many embarrassments by ascertaining, before taking doubtful steps, wliat is the opinion of the highest authority con- cerning their validity. Inferior courts — lengthily provided for in the state consti- j^iss^^, tutions — consist, amongst others, of arbitration courts," chan- Courts, cevy courts,' county courts,^ general trial courts," intermediate courts of appeal,^ justice's courts,- juvenile courts,^ land regis- tration,* municipal' and probate courts" Constitutional provisions regulating minor courts as well as supreme courts are often extended to minute detail. Even the more important of them are beyond the scope of these pages, but a few words may apipropriately be said concerning the county courts and justices of the peace. In the dozen or more states whose constitutions authorize' county courts and in the several other states where their powers are conferred by statute, their jurisdiction varies considerably. Fairly typical is the West Virginia' provision conferring juris- diction in all matters of probate, appointment and qualification of personal representatives, guardians, committees, curators and the settlement of their accounts, and in all matters relating to 'Provided by const. Wyo., V, 1 ; may be established by leglsiature, Ind., VII, 19 ; N. D., IV, 12 ; Mich., XVI, 7 ; 0., IV, 19 ; legislature shall pass laws for regulation of ; may be established in and for any township ; — Wis., VII, 16. The purpose in Wyo. is expressly for the settlement of labor disputes. This probably not always the purpose, elsewhere. ■'infra, p. 232. sBstablished by constitution, — ^Arli., VII, 1 ; Fla., V, 1 ; Ky., 139, 140 ; 111., VI, 1 ; Mo., VI, 1 ; Neb., VI, 1 ; N. D., IV, 85 ; Okla., VII, 1 ; S. D., V, 1 ; Tex., V, 1, 15 ; Legislature permitted to establish in some other states. See, infra, p. 336 and p. 343. "Generally provided for in most constitutions ; e. g., Ind., VII, 1 ; variously named. — ^Circuit (e. g., Ind., VII. 8; Tenn., VI, 4) ; Common Pleas (O., IV, 3) ; District (e. g., Tex., V, 7) ; Superior (e.,g., Ga., VI, sec. Ill), and Supreme (N. Y., VI, 1). "Established by constitution, — e. g.. La., 84 ; Mo., VI, 1, 2 (Amend.) ; Tex., V, 1. Permissive, 111., VI, 11; Mo., VI (Amend. 1884), 3. Variously named,— Appellate (111., VI, 2) ; Appellate Division of Supreme Court (N. Y., VI, 2) ; Court of Appeals (e. g., O., IV, 6) ; Supreme Court (N. J., VI, sec. V, 1). Hnfra, p. 230. 'Established by constitution, — La., 118 ; permissive, Colo., VI, 1 ; N. M., VI, 1. »Va., VI, 100. 'Established by constitution, — e. g., Va., VI, 87, 98. Permissive, — e. g.. Ark., VII, 1. Sometimes called City (Conn.), or Corporation Courts (Ark., Va.). "Established by constitution. — e. g., Ala., VI, 139 ; Wis., VII, 2. Permissive clause, — e. g., Ala., VI, 149 ; Pa., V, 22 ; also called Court of Ordinary (Ga., VI, sec. VI, 1) ; Orphans' Court (Pa., V, 22), and Surrogate Court (N. Y., VI, 15). 'e. g., Colo., VI, 23 ; Tex., V, 15. In some states there are purely administra- tive county courts. In others there are county courts with both administrative and judicial functions. SVIII, 24. 230 STATE CONSTITUTION-MAKING. apprentices. In Arkansas" the county court has exclusive orig- inal jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, apprenticeship of minors, disbursement of money for county purposes, and in every other case that may be necessary to internal improvement and local concerns of respective counties. Every constitution has provisions concerning justices of the 180. peace. In Delaware, Maryland and South Carolina^ they are the Peace. appointed by the governor and senate but usually they are elected,^ by the voters of the county,' district,* township,^ city," or other local subdivision.' Their number is usually left to the legislature or prescribed according to territorial unit. Thus in Georgia* there must be one in each militia district. In Louis- iana" they must be freeholders; qualifications, are, however, rarely specified. Their term of oflflce varies from two^ to seven years.^ In a few states their compensation must be fixed by law.^ Fees are prohibited in criminal cases in South Carolina* and in some states fees must not be regulated by local or private laws." In a few constitutions permission is given the legislature to abolish the office of justice of the peace or justices' courts." General provisions for the establishment of justice's courts are found in twenty-seven constitutions' audi permission for their establishment by the legislature is granted in Tennessee.* Their jurisdiction is ordinarily both civil and criminal. For the former the Michigan" provision is suflflciently illustrative. It declares that their jurisdiction shall be exclusive to the »VII, 28. ny, 32; IV, 42; V, 20. 'Utah, VIII, 8. »e. g.. Miss., VI, 171 ; Tex., V, 18. *e. g., Ky., 99 ; Tenn., VI, 15. "e. g., Ind., VII, 14. »e. g., in., VI, 21 ; N. Y., VI, 17. 'e. g., Vt„ II, 47; Wash., IV, 10. «VI, sec. VII, 1. "126. le. g.. Ark., VII, 38. 'e. g.. Me., VI, 5. =e, g., Ala., VI, 168; lU., VI, 32; La., 126, 128, 129; N. C, IV, 18; Wash., IV, 10. ■■V, 20. See, also, Wash., IV, 10. 'e. g.. Mo., IV, 53. See, also, Ala., IV, 104. »N. D., IV, 112 (in general) ; Ga., VI, sec. VII, 1 (1914) ; 111., IV, 34; La., 96 (in specified Instances). 'e. g., Ariz., VI, 1 ; Wyo., V, 1. »VI, 1. • °VII, 16. STATE CONSTITUTION-MAKING. 231 amount of $100 and concurrent to $300, which may be increased to $500, with such exceptions as may be provided by law. For the latter may be instanced the Mississippi provision^ that jurisdiction shall be concurrent with the general trial courts where punishment does not extend beyond a fine and imprison- ment in the county jail. The legislature is authorized, how- ever, to confer exclusive jurisdiction in case of petty misdemean- ors. More than a third of the states^ forbid regulation of jus- tices' jurisdiction by local or private laws. Specific regulations for procedure are occasionally found ^ l^^^^^^i governing individual courts. There are, here and there, a few Regulations, general procedural rules, for instance' that no criminal case is to be reversed for technical error in proceedings, when upon the whole case it appears that substantial justice has been done, and that" no judgment can be set aside or new trial granted for any error, as to any matter of procedure, unless after examina- tion of the entire cause, including evidence, the court is of the opinion that error complained of has resulted in miscarriage of justice.^ There are several provisions making mandatory the adoption or regulation of systems of procedure by the legisla- ture" or, as has been seen, by the highest court.'' About half of the states' forbid the regulation of procedure by local or private statute, and several others expressly require uniformity." Occasionally a rule of pleading and practice may be found, pj^^^jj, ^^^ For example in two states every action prosecuted by the state Practice. as a party against a person charged with a public offence must be termed a criminal action'. Criminal pleading is extensively regulated by statute.^ A large majority of the states have ivi, in. =6. 0; Ind., IV, 22. 'Ariz., VI, 22. For other regulations of criminal cases, see N. M., II, 15 ; Ore., VII, 5 ; Tex., V, 17. «Cal., VI, iyi (1914). Similarly, Ore., VII, 3; see, also. Miss., VI, 147. 'Ida., V, 1, and N. C, IV, 1, abolish feigned issues. "Ida., V, 13 ; la., V, 14 ; Minn., VI, 14 ; N. C, IV, 12. 'Md., IV, 18 ; Mich., VII, 5 ; Tex., V, 25. se. g., Ind., IV, 22 ; Tex., Ill, 56. 'See Colo., VI, 28 ; Ga., VI, sec. IX, 1 ; Ida., V, 26 ; 111.,. VI, 29 ; Mont., VIII, 26 ; Neb., VI, 19 ; S. D., V, 34. For other miscellaneous provisions, see Del., IV, 26 ; La., 165 ; Mich., XVI, 6 ; N. M., IV, 34. See, also, ch. 5 for N. Y., proposal, 1915. ilda., V, 1 ; N. C, IV, 1. In W. Va., Ill, 11, political and religious test oaths must not be made a prerequisite or qualification for the right to plead. Cal. and Ariz, forbid reversal for technical errors. Miscellaneous provisions : La., 129 ; Neb., VI, 9; Ore., VII, 5. 232 STATE CONSTITUTION-MAKING. 192 Abolition of Distinction Between Law and Equity. adopted statutory codes of civil practice which in general abol- ish the distinction between common law andi equity pleading and attempt to make pleading simpler and more direct than un- der rules that have developed through judicial decisions.' Several constitutions contain provisions requiring the aboli- tion of the distinction between law and equity. That of South Carolina,^ for instance, ordains that justice shall be administered in a uniform mode of pleading without distinction between law and equity.* Michigan^ orders the legislature to abolish the distinction be- tv^een law and equity so far as practicable and Mississippi," which has separate courts of chancery, forbids reversal in civil cases on the ground of lack of jurisdiction as between the chan- cery and common law courts. Four other states have chancery courts generally provided for in their constitutions'', and three states^ specifically authorize their legislatures to establish them. In a few states,, also, separate chancery courts exist under gen- eral provisions authorizing the legislature to establish courts. More than a third of the constitutions expressly provide that their general trial courts shall have equity jurisdiction," some- times with additional qualifications.'^ ^See Hepburn, C. M., The Historical Development of Code Pleading in America and England. The original code state was N. T., whose code (1848) was con- siderably changed the year after Its enactment (N. T. Laws, 1849, ch. 438), and has since been frequently amended. Later codes of practice have been modeled upon it. Its complexity, however, has caused much dissatisfaction and the re- cent constitutional convention made an effort to have substituted for it "a short and simple civil practice act." »VI, 3. ^Provisions with similar purport are found In several other states. — Ida. (V, 1) and N. C. {IV, 1), — Distinctions between actions at law and suits in equity, and forms of all such actions and suits prohibited ; to be but one form of action for enforcement or protection of private rights and redress of private wrongs, called a civil action. Ind. {VII, 20) and 0. (XIV, 1, 2, 3),— Commission provided for to, as far as practical, abolish distinct forms of action at law and provide uniform mode of proceeding without any distinction between law and equity. Mont. (VIII, 28) ; Nev. (VI, 14) and Utah (VIII, 19),— To be but one form of civil action, and law and equity to be administered In same action. »VII, 5. »VI, 147, 152. If remanded, the case may be sent to law or chancery court. Irrespective of which originally tried it. 'Ala., VI, 139, 145 ; Del., IV, 1 ; Miss., VI, 152 ; N. J., VI, sec. I, 1. »Ark., VII, 1 ; Tenn., VI, 1 ; Vt., ch. 2, sec. 29. 'Cal., VI, 5 ; Colo., VI, 11 ; Ida., V, 20 ; 111.,- VI, 12 ; la., V, 6 ; Mont., VIII, 11 ; Neb., VI, 9 ; Nev., VI, ; N. Y., VI, 1 ; S. D., V, 14 ; Wash., IV, 6 ; W. Va., VIII, 12; Wyo., V, 10. iSee Ala., VI, 148 ; Ark., VII, 15 ; Ariz., VI, 6 ; Pla., V, 11, 12 ; Ga., VI, sec. IV, 1, 2 ; Minn., VI, 5 ; N. J., IV, sec. VII, 10 ; Pa., V, 20, confers certain chan- cery powers on the court of common pleas. STATE CONSTITUTION-MAKING. 233 Toward these efforts to make the judicial process more sim- j^^fli^i pie and direct a large proportion of current thought concerning inefficiency, judicial reform is directed. Much complaint has, apparently not without cause, been directed against the expense and delays attendant upon the administration of justice and the alleged ineflflciency of the courts. The judicial systems of the states, taken as a whole, says a well-known writer on the subject,' fail to keep pace with current progress in efficiency exhibited — say — ^by a well-managed private law office; somehow the organization, procedure, and administrative 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. Not only are the energies of judges of learning and ability frit- tered away by irritating and vexatiously long-drawn-out pro- cedural applications which involve how, and not what, but liti- gants often do not know in which of several courts to bring a particular action and may find after months or even years of delay that this technical mistake has produced a costly failure to obtain justice.* A reduction in the number of courts and clear statements of their jurisdiction would seem desirable. In the midst of unnecessary technical hindrances exact justice is likely to be lost sight of. For very weariness, if for no other reason, bench and bar fall back upon established rules and pre- cedents instead of searching diligently for new rules more suited to the case in question. The most interesting and significant of current discussions 194. ■ The Doctrine of the judiciary relate to the doctrine of judicial review. Ought of judicial the courts to assume supremacy over the legislative department of the government to the extent of declaring a legislative act unconstitutional? They have universally held that they not only ought to do so but cannot escape from such a course. ^The following is only too illustrative of a well-foundea popular idea of what litigation entails, — Paeke — You know, I wish I had some real occupation that I knew was going to take up a large part of my time for the rest of my life. Lane — Why don't you start a lawsuit in New York? — Life. 'Justice Wm. L. Ransom of the City Court, N. Y. City. Proceedings of Academy of Political Science, V, 217. •See, Jessup, H. W., The Organtnation and Procedure of the Court. Pro- ceedings of Academy of Political Science, V, 193. 234 STATE CONSTITUTION-MAKING. "It is emphatically the province and duty of the judicial de- partment to say what the law is," declares Chief Justice Mar- shall in Marhury versus Madison,'^ — Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law he in opposition to the Constitution ; if both the law and the Constitution applj' to a particular case, so that the court must either decide that case conformably to the law, disregarding the Consti- tution, or conformably to the Constitution, disregarding the law. the court must determine which of these conflicting rules governs the_ case. This is of the very essence of judicial duty. The conclusion was that a legislative act deemed by the courts to transcend the constitution was void for all purposes. The result, of course, was to give the courts a final veto upon legislation — a position according to Professor McLaughlin" in every way consonant with the political and philosophical thought of the Revolutionary era. This political philosophy resulted from the fact that the main contention of the Americans was that Parliament was not possessed of absolute authority : the belief that there were cer- tain principles of right and justice which all governments must consider and that the obligation to consider them constituted a legal limitation on governmental authority; the assertion that these fundamentals were embodied In the English constitution, which was fundamental and un- changeable ibecause it embodied these fundamental and unchangeable principles ; the conviction that the courts were under obligations to de- clare void an act of iParliament violating the principles of natural jus- rice and reason, a conviction supported by reference to English decisions and opinions of great judges ; a declaration, closely connected with the preceding, that there Is a fundamental law which the legislatures can- not change, a principle, however, which did not come by any means solely through a perusal of English authority and legal decisions, but from text-writers of continental Europe who embodied the principles of philosophic thinking ; the separation of powers of government and the independence of the judiciary, which led the courts to believe that they were not bound In their interpretation of the Constitution by the deci- sion of a collateral branch of the government. »1 Ci-anch, 137 (1803). "TRe OowrtB, the OonstituUon and Parties, reviewed by Thos. R. Powell, 27 Political Science Quarterly, 682. STATE CONSTITUTION-MAKING. 235 Not superiority to the legislature, but merely complete inde- pendence of it was the theory upon which the courts based this belief. It was in theory a natural corrolary to the doctrine of the separation of powers; in practice it has produced judicial supremacy. In 1878, Chief Justice Waite,' discussing the use of the judicial function of declaring statutes unconstitutional, said, — Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. Of late years, however,* there has been a decided tendency on the part of the courts to extend this power to pretty much any act which the court has considered inadvisable.^ The change of attitude on the part of the courts is doubtless due in part to the vast increase of statute laws which are often radical in nature and carelessly drawn. Such vagjie constitu- tional clauses as "due process of law" and "equal protection of the laws" furnish adequate opportunity for, if, indeed, they do not compel, interpretation according to the personal predilec- tions of the judges. The numerous constitutional restrictions upon the legislature, especially those of formal and technical character, regulating the passage of laws, have, of course, ren- dered the task of determining whether acts are constitutional one of greater frequency and' difficulty. The validity of the doctrine of judicial review has of late been widely questioned. Its severest critics have been represent- atives of the awakening forces of industrial democracy, who have seen legislation which they have advocated time after time declared unconstitutional for reasons that seemed vague and unconvincing. On the other hand the doctrine has been staunchly defended by exponents of the established order of 'In The Sinking-fund Cases, 99 U. S., 700 (718). See Cooley, Constitutional Limitations, for canons of judicial Interpretation. sDodd, W. F., The Growth of Judicial Power, 24 Political Science Quarterly, 193 (1909). 'Justice Harlan in the opinions delivered in IOCS and 1905 (Atkin v. Kansas, 191 U. S., 223; Lochner v. N. Y., 198 U. S., 45 [74]) used -almost identically the same language in discussing the proper extent of judicial review, — "No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere as- signed to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives." But In the former he delivered the opinion of the court, in the latter a dissenting opinion. Some- times, as in the case of the Sherman anti-trust law; statutes are framed with the expectation that the courts will, in interpreting them, give them definite meaning. 236 STATE CONSTITUTION-MAKING. things who have seen in it a defence against novel laws that in- fringe upon what they are pleased to consider their sacred rights of liberty and property. Professor Burgess^ has called this judicial supremacy "the most momentous product of modern political science," upon which, "far more than upon anything else depends the perma- nent existence of republican government." On thtf other hand, it has been considered unrepublican because it really gives to the courts the final power in legislation. The representatives of the people in the legislature should, it is argued, be their own interpreters of their own powers under the constitution. In practice the doctrine of judicial review makes the courts — ^not always even elected by the people — the arbiters between the forces of democracy and the forces of property. "The funda- mental division of powers in the Constitution of the United States," says President Hadley, "is between the voters on the one hand and the property-owners on the other." The state constitutions occasionally reflect one side or the other of the discussion. The constitution of Georgia^ boldly declares that acts violating it are void and that the judiciary shall so declare them. Iowa and Ehode Island,' also declare acts inconsistent with their constitutions' to be void. Four states, Colorado, Ohio, South Carolina and Virginia,* on the iln Political Science Quarterly, X, 422. =1, sec. IV, 2. Furthermore (VI, sec. II, 9) if a question as to the construc- tion of a provision of the constitution of the state or of the United States, or as to the constitutionality of an act of the legislature arises In a case pending in an appellate court, the court shall so certify to the Supreme Court, and send also a transcript of the record, and await instructions. If, however, by reason of an equal division of opinion no Instructions are given, the appellate court may decide the question. 'XI, 1 ; IV, 1. 'O. (IV, 2), — No law to he held unconstitutional by highest court without concurrence of at least all but one of judges, except In affirmance of judgment of intermediate court of ajjpeals declaring law unconstitutional. Colo., (VI, 1. 5), — Decision of highest court in case involving construction of state or federal constitution to be by court en tanc. See also, infra, next note S. C. (V, 12), — If.lt appears to justices of highest court, or any three of them, that question of constitutional law is involved on which entire court has not agreed, the chief justice, or in his absence presiding associate justice, shall call to assistance of highest court all the Judges of the circuit courts. Decision of majority of justices and judges slttlnK to be final and conclusive. If number qualified to sit constitute even number, one of circuit judges, determined by lot, shall retire. Va. (VI, 88), — Assent of at least three judges of highest court necessary to declare that a law Is or is not repugnant to state or federal constitution ; if not more than two judges sitting agree and case cannot be determined without pass- ing on the question, no decision to be rendered, but case to be reheard by full court ; and In no case where jurisdiction depends solely upon fact that constitu- tionality of a law is involved shall court decide case upon merits unless decision of appellant upon constitutional question Is sustained. The supreme court con- sists of five Judges, any three of whom may ordinarily hold a court. STATE CONSTITUTION-MAKING. 237 other hand, provide that decisions declaring statutes unconsti- tutional must be concurred in by a larger majority of the judges or by a fuller court than is required for decisions in general. Colorado" furthermore, has a unique provision whereby de- i95. cisions of the court declaring void legislative enactments or Judicial charters of cities of the first and second classes, may be reviewed and confirmed or rejected by the people of the state or of the cities. This most interesting of expedients for bringing the in- terpretation of law more nearly into accord with popular de- sires is the so-called recall of judicial decisions. In theoretical discussion the term properly applies only to the decisions of state courts declaring unconstitutional, under the due-process clause of a state constitution, a state statute passed in the police power." It permits a referendum on the question whether the statute shall be the law of the state notwithstanding the adverse de- cision, but does not disturb the specific judgment or decree. Proponents of the recall of judicial decisions contend that it furnishes a method of securing popularly-demanded laws greatly to be preferred to constitutional amendment. An amendment must be general and would deprive the courts of the possibility of declaring void uncalled for and unjust acts as well as those that are needed. The recall reserves for the people the function of passing upon each individual act. Long before the movement for direct popular supervision of g^^j^^- judicial decisiions was begun, students of sociology and economics JurUpru- had been endeavoring to develop a theory of jurisprudence that should consider the law as one of the many closely-related social sciences. They would divorce it from its traditions and make 'VI, 1. Power to declare law or city charters or amendments thereto, adopted by people in cities acting under article XX of constitution. In violation of con- stitution of state or of XTnited States, confined to highest court ; decision filed with clerk of highest court within ten days ; decision not binding until sixty days after filing; If wlthlo period of sixty days petition signed by five per cent, of qualified electors of state, or in case of charter, or amendment thereto, by five per cent, of qualified electors of city or city and county, shall be filed with sec- retary of state, or. In case of city, with legislative body of said city or city and county, requesting measure to be submitted to people, measure to be so submitted ; If law approved by majority of votes cast thereon to take effect from and after date of declaration of vote thereon by proclamation by governor not less than thirty days after vote canvassed : if charter or amendment approved by majority of votes cast thereon, to take effect from and after date of declaration of vote thereon by proclamation of legislative body of city or city and county ; not less than thirty days after vote canvassed. 'See 27 Political Science Quarterly, 682, seg. 238 STATE CONSTITUTION-MAKING. of it both a study of the needs and desires of the people and a means for their expression. They would make the courts as" emphatically the guardians of the rights of all the people and of groups of people as they are the protectors of the rights of private individuals. "The main problem to which sociological jurists are address- ing themselves today," says Professor Pound/ is to enable and to compel law-making, and also interpretation and appli- cation of legal rules, to take more account, and more intelligent account, of the social facts upon whicb law must proceed .and to which it is to be applied. Their insistence, he adds, is chiefly upon six points : (1) The first is study of the actual social effects of legal institutions and legal doctrines. (2) The second is sociological study in connection with legal study in preparation for legislation. (3) The third is study of the means of making legal rules effective.' (4) A means toward the end last considered is a sociological legal history ; that is, study not merely of how doctrines have evolved and de- veloped, considered solely as jural materials, but of what social effects the doctrines of the law have produced in the past and how they have produced them. (5) Another point is the Importance of reasonable and just solutions of individual causes, too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certainty. (6) Finally, the end, toward which the foregoing iwints are but some of the means, is to make effort more effective in achieving the purposes of law. Constitution-makers by emphasizing social rights instead of merely individual rights may do much to assist in the develop- ment of a jurisprudence that is capable of expressing the cur- rent popular will. ''The Scope and Purpose of Sociolouical Jurisprudence — XXIV Harvard Law Review, 591; XXV, 140, 489 (512, seq.) See, also Prof. Pound's article. Law in Boohs and Law in Action, American Law Review, XLIV, 12. '"The Important part of our system is not tlie trial judge who dispenses Justice to litigants but the judge of the appellate court who uses the litigation as a means of developing the law ; and we judge the system by the output Of written opinions and not by the actual results inter partes in concrete causes. But the life of the law is in its enforcement. Serious scientific study of how to make our huge annual output of legislation and Judicial interpretation ef- fective Is imperative." STATE CONSTITUTION-MAKING. 239 Tennessee Note. — The judicial power of the state Is vested by the constitution' In one supreme court, In such circuit and chancery courts as the legislature shall establish, in the judges of the courts and In jus- tices of the peace. Municipal courts and courts to be held by justices of the peace may also be established by the legislature. The supreme court must consist of five judges of whom not more than two shall reside In any one of the three grand divisions of the state. They must be thirty-five years of age and residents of the state five years and' are elected by the qualified voters for eight years. The jurisdiction of the court must be appellate only,' and is subject to further regulation ty law. The court must be held at Knoxvllle, Nashville and Jackson. The judges of both .supreme and inferior courts are liable to im- peachment and to removal by concurrent vote of two-thirds of all the members to which each house is entitled. Justices of the peace are liable to indictment in such courts as the legislature may direct, and on con- viction must be removed from oflSce by the court.^ The legislature has provided that cases appealed from the chancery courts, unless involving more than one thousand dollars or involving the constitutionality of a statute, a contested election, ejectment or state revenue, and all civil cases appealed from the circuit (or common law) courts, shalJ be heard by a Court of Civil Appeals, created by statute.' The court of civil appeals may certify cases to the supreme court for final determination and the supreme court may order any case to t)e removed to it for review. The circuit courts established by the legislature number at present twenty-three and there are in addition eight separate criminal courts. The chancery courts number sixteen. Those in the larger cities sit at one place only, 'but throughout the country districts, chancellors and cir- cuit judges hold court at a number of different county-seats. The juris- diction of the circuit and chancery courts is In large measure concurrent.* 'Art. VI. For procedural rules, see sections 9 and 10. 'Except that It may possess such other jurisdiction as the supreme court had at the time of the adoption of the constitution. ^V, 4, 5; VI, 6. sActs of 1907, eh. 82, amending Acts of 1895, ch. 76. *Acts of 1877, ch. XCTII, provides that the "Jurisdiction of all civil causes now triable in the Circuit Court, except for injuries to person, property or char- acter, involving unliquidated damages, are . . . conferred upon the Chancery Court, which shall have and exercise concurrent Jurisdiction thereof along with the Circuit Court." 240 STATE CONSTITUTION-MAKING. CHAPTER XIV. The State Budget.^ "A budget/' says Professor Seligman, "is a periodical flnan- 197. cial statement made by the government, containing a report and the Budget, an estimate of the expenses and revennes.'" Less compactly, but with similar purport, Dr. Frederick A. Cleveland^ has defined the term "budget" to mean a plan for financing an enterprise or government during a definite period, whicli is prepared and submitted by a responsible executive to a representative body (or other duly constituted agent) vrhose approval and authorization are necessary before the plan may be executed. Though he does not specifically mention the requirement of a report,* Dr. CleTeland is very insistent upon the point that the legislature shall hold the budget-making authority, the executive, strictly responsible for the correct execution of every financial measure. To accomplish this, he says, the legislature must do three things: viz.: (1) It must provide a means of enabling representatives to find out vchether the executive has acted within his past authorizations and conducted the business efliclently; (2) it must provide a means of enabling representatives to inquire into the requests for future grants ; (3) since the purpose of a representa- tive system is to make the government responsible and responsive to the people, it must provide a means of reaching the people, of letting the people knovc what has been done and what is proposed and of getting controversies between a majority of representatives and the executive before the electorate for final decision. "With provision made for these three things," he continues, 'General References : Stourm, Renfi, he Budget (the best authority) ; Adams, H. C, Science of Finance; Adams, B. D., The Control of the Purse; Agger, B. B., The Budget in the American Commonwealths ; Lowrle, S. G., The Budget; Pub- lic Budgets (Annals of American Academy of FoUtical and Social Science, whole No. 151, Nov., 1915). 'From the writer's class notes (Columbia University). 'Director, Bureau of Municipal Research, New York City, — Evolution of the Budget Idea in the United States, Annals, op. clt., 15. See also Dr. Cleveland's article. Constitutional Provision for a Budget, Proceedings of the Academy of Political Science, V, 141. H. e„ In this article. He does in Proceedings of Academy of Political Science, V, 144. STATE CONSTITUTION-MAKING. 241 the representative system is adapted to the ends and purposes of a democ- racy ; without provision for these three things the representative system is not adapted to the ends and purposes of a democracy. The most potent method, he believes, for securing them, while not neglecting adequate independent audit of all linancial trans- actions, with right of judicial interference where the facts so demand, and for enabling representatives to inquire into requests for future grants, and obtain exact informtion about what has been done as well as what is proposed, is to require the executive to appear personally before the representatives of the people at the time he makes his request for funds to answer cfuestions and details. The method, which has been found to be most effective for keeping the people in touch with public affairs and for having questions in issue settled by the electorate, is to make provision whereby each representa- tive can openly question the executive and every item can be separately debated and voted on. And in case the executive is not supported to make further provision, the electorate may promptly retire either the executive or the opposing majority. What this means is, that a budget which is to serve its constitutional purpose must not only be an executive proposal submitted to a representative body, but it must be submitted under such rules of procedure that each representative may have a right to personally and publicly make inquiry of the executive concerning any matter or detail of the business in hand and also have the right openly and publicly to oppose any part of the plan which, in Ms opinion, is against the general welfare of the state. And the only procedure which has been found effective for doing this is to require that the estimates and the budget be considered and discussed in committee of the whole house with the executive present. This thoroughly complete and scientific concefption of the budget has never been realized in the practice of an American state.° It is, however, perfectly exemplified by the English budget system and to a varyingly less extent by the systems of the other European countries and by those of a few American cities, following the lead of New York.^ "Concerning certain state efforts at budgetary reform, see infra. 'In N. Y. City tlie budget is prepared by the Board of Estimate — consisting of tlie Mayor, Chairman (3 votes) ; the Comptroller (3 votes) ; the President of the Board of Aldermen (3 votes) ; the Presidents of the Manhattan and Broolj- lyn Boroughs (2 votes each) ; Bronx, Queens and Richmond Boroughs (one vote each) — and submitted to the Aldermen, by whom it can be reduced but not in- creased. 16 242 STATE CONSTITUTION- JIAKING. The New York constitutional convention of 1915, however, framed a clause around the idea, as follows : 198. Proposed New York Budget Clause. On or before the fifteenth day of November in the year one thousand nine hundred and sixteen and in each year thereafter the head of each department of the state government except the legislature and judiciary, shall submit to the governor Itemized estimates of appropriations to meet the financial needs of such department, including a statement in detail of all moneys for which any general or special appropriation is desired at the ensuing session of the legislature, classified according to relative importance and in such form and with such explanation as the governor may require. The governor, after public hearing thereon, at which he may require the attendance of heads of departments and their subordinates, shall revise such estimates according to his judgment. Itemized estimates of the financial needs of the legislature certified by the presiding officer of each house and of the judiciary certified by fche comptroller shall be transmitted to the governor before the fifteenth ■day of January next succeeding for inclusion In the budget without re- vision but with such recommendation as he may think proper. On or before the first day of February next succeeding he shall submit to the legislature a budget containing a complete plan of proposed expenditures and estimated revenues. It shall contain all the estimates so revised or certified and shall be accompanied by a bill or bills for all proposed appropriations and reappropriations, clearly itemized ; it shall show the estimated revenues for the ensuing fiscal year and the esti- mated surplus or deficit of revenues at the end of the current fiscal year together with the measures of taxation. If any, ■which the governor may propose for the increase of the revenues. It shall be accompanied by a. -statement of the current assets, liabilities, reserves and surplus or deficit of the state ; statements of the debts and funds of the state ; an estimate of its financial condition as of the beginning and end of the ensuing fiscal year ; and a statement of revenues and expenditures for the two fiscal years next preceding said year, in form suitable for com- parison. The governor may, before final action by the legislature there- on, amend or supplement the budget. A copy of the budget and of any amendments or additions thereto shall be forthwith transmitted by the governor to the comptroller. The governor and the heads of such departments shall have the right, and it shall be their duty when requested by either house of the legis- lature, to appear and be heard in respect to the budget during the con- sideration thereof, and to answer inIV, 14 STATE CONSTITUTION-MAKING. 249 consideration of appropriation toills. In New York^ the gov- ernor has thirty days after the adjournment of the legislature for the consideration of all bills left on his hands. in a few states an appropriation act must refer to a limited 206. ... Continuance time only ; as a rule two years." In one state the provision is of Appro- . ' . . „ prlatlons. that the appropriation act may not continue in force "more than six months after the meeting of the legislature at its next regular session."* The time of payment is also sometimes limited." Diversions of money appropriated may not be made by resolution in Illinois and Nebraska." About a dozen states forbid local or special legislation refunding money paid into the treasury.' The provision that no money shall be paid out of the treasury except upon warrant of the proper officer is frequently met with/ and the publication of accurate statements of expenditures is frequently required.® Bills for raising state revenue have claimed less attention ^^°^^^ from constitution-makers than have appropriation bills.^ There buis. are a few regulations, however, for instance thaf" no revenue bill can become law except by a vote of three-fifths of the mem- bers present and voting; and that* matters "not immediately relating to and necessary for raising revenue" must not be "in any manner blended with or annexed to" revenue bills. Four states* specifically require the legislature to provide sufficient revenue to defray current expenses, three of them including in- terest on the state debt and one the principal as well. Three others contain regulations concerning the collection of revenue,^ =iv, 9. 'Ark. V, 29 ; Kan. II, 24 ; La. 45 ; Mont. XII, 12 ; Ohio II, 22 ; Tex. VIII, 6. See also la. I, 14 ; Ney. I, 11 ; Va. XIII, 186. Limited to one year for support of miUtia,— Ala. I, 27. III, 11. ^Elected )3y legislature, VII, 3. ^'Appointed by the governor. Acts of 1915, ch. 20. 256 STATE CONSTITUTION-MAKING. CHAPTER XV. Taxation.^ 216. Constitu- tional Re- strictions. "The most sti'iking feature regarding local taxation in the United Slates," says President Wilson,^ is the strict limitations- put upon it by constitution or statute." In their hearty hatred of taxation, American electorates have indiscriminately imposed upon the taxing power of their state legislatures lengthy con- stitutional restrictions governing both state and purely local taxation. Some of them are very wise, no doubt, but, aS' a whole, they furnish, inevitably, a serious impediment to the maintenance of just systems of taxation as economic conditions rapidly fluctuate. In recognition of the fact that methods of taxation ought lo change ilaore frequently than constitutions are usually changed, the InternationaP Tax Association,* memorializing, the Arizona constitutional convention, in 1910, proposed that the sole con- stitutional provision on the subject of taxation should be, — 217. The power of taxation sliall never be surrendered, suspended, or con- Clause^^^ tracted away. All taxes shall be uniform upon the same class of prop- erty within the territorial limits of the authority levying the tax, and shall be levied and collected for public purposes only. "It does not seem to us expedient," the memorializers went on to say, ^General References : Proceedings of the National Conferences of the Na- tional Taw Association; Readjustments %n Taxation (Annals of American Acad- emy of Political and Social Science, whole No. 147) ; Seligman, E. K. A., Essays in Taxation; The Income Tax; West, Max, The Inheritance Tax; Geoi-ge, Henry,. Progress and Poverty; Haig, R. M., The Exemption of Improvements from Taxa- tion in Canada and the united States; Wealth, Debt and Taxation (Thirtieth Census, 1913). 'The State (1906 Ed.), 522. 'Now "National." ♦Proceedings of fifth Annual Conference, International Tax Association, pp. 403-454 (1911). STATE CONSTITUTION-MAKING. 257 t» lay any restrictions upon tbe power of the Legislature to exenapt cer- tain classes of property from taxation. We assume tliat you will pro- vide elsewhere in your Constitution for restriction upon the power of the Legislature to pass special laws affecting localities, persons, or cor- porations. Embodying in the Constitution specific provision for the exenaption of churches and charitable institutions, or other proper subjects for exemption, does not seem to us to be necessary. Under the provision we have i^ecommended It would be perfectly proper to grant such exemptions by general law. The difficulty of arousing public iiiterest and securing the amend- ment of restrictive constitutional tax provisions is shown by the experi- ence of Ohio and other States. This emphasizes the importance of con- fining the language of your tax provisions to a simple guarantee of fun- damental rights, and avoiding phrases that may be interpreted, as has happened in other States, as compelling a uniform rule and forbidding classification of projwrty." The fact is that no fewer than eleven states" possess consti- tutional limitations upon the taxing power of the legislature contained in clauses totaling more than one thousand words and the tax clauses of one of them^ are alone almost as long as the entire constitution which North Carolina adopted in 1776. On the other hand, Connecticut and New York impose almost no restrictions upon the legislative discretion in regard to taxa- tion.* The remaining constitutions vary considerably but most of them pretty thoroughly dictate the tax systems of their states — as the following brief account of the provisions of all of the state constitutions will make manifest." Several dozen kinds of taxation are made mandatory by thcgg^^^^i constitutions and there is an even greater number of required Tax?*'^'' or permissive exemptions. The characteristic requirement, how- ever, is that property generally shall be taxed at the same rate. This is the mandate for the so-called general property tax and "The Ariz. Convention adopted the recommended text, but added other provi- sions (IX, 9). «Ala., Cal., Ky., La., Mo., Mont., Okla., S. C, Tex., Utah., Va. 'Cal. — over 4,000 words. sind., Me., N. H., N. .T., Pa., R. I. and Vt. contain less than 200 words each, but some of them seriously limit the exercise of taxing power. "The taxation systems of all the states as they were in 1912 are minutely described by the Thirteenth Census, Wealth, Debt and Taxation (1913), Vol. 1, pp. 449, seq. IT 258 STATE CONSTITUTION-MAKING. is found in twenty-six constitutions.' The general property tax has long been the most important element of the tax sys- tems of the states and with one or two exceptions,^ vestiges of it linger, at least for local taxation, in all of fhem. Each one, however, has its little eccentricities and an absolutely clear picture cannot be obtained except through an individual study of every state. The most fundamental weakness of the general property tax lies in its attempt to tax in the same way at the same rate both tangible and intangible property. The growth of banks and other corporations and the consequent enormous expansion of intangibles, which the courts have held to constitute property,^ has induced constitution-makers to seek special methods of ob- taining revenue from the owners thereof. Some have sought to compel them, as it were by brute force, through added stric- tures and penalties, to list their invisible property. Others, however, less naively trustful in the potency of enacted laws, but somewhat more effectually, have sought the same end by means of classifying property for taxation and taxing different classes in different modes and at different rates. The glaring unfairness of attempting to tax equally two notes, both of equal lAla., 211, 214, 215 (Mayor v. Stonewall Ins. Co., 53 Ala., 570 ; M. d O. R. Co. V. Peebles, 47 Ala., 317) ; Ark., XVI, 5 ( Pike v. State, 5 Ark., 204) ; Cal. XIII, 1 (.People v. Whyler. 41 Cal., 351 ; Hyatt y. Allen, 54 Cal., 353) : Fla., IX, 1 (Hayes v. Walker, 54 Pla., 163) ; 111., IX, 1 (Republic Life Insurance Co. V. Pollak, 75 111., 292 ; People v. Church, 232 111., 158) ; Ind., X, 1 (State v. In- dianapolis, 69 Ind., 375 ; Board v. State, 155 Ind., 604) ; Kan., XI, 1 (Kaiser V. the State, 80 Kan., 364) ; La., 225 (Srvords v. Baillio. 105 La., 332) ; Me., IX, 8 ; Amend. 1914 (In re Opinion of Justices, 97 Me., 595) ; Miss., 112 (Adams V. Kuykendall, 83 Miss., 571) ; Mo., X, 4 (Kansas City v. Wliipple, 136 Mo., 475) ; Mont., XII, 1, 16 (Daly Bank v. Board, 33 Mont., 105) ; Neb., XI, 1 (Pleuber v. State, 11 Neb., 547 ; State v. Poynter. 59 Neb., 417 ; High School District t. Lancaster Co., 60 Neb., 147 ; State v. Osburn, 60 Neb., 415) ; Nev., X, 1 (Ex Parte Robinson. 12 Nev., 263. 268. 269) ; N. H.. II, 5 (Wyatt v. Board. 74 N. H., 552) ; N. C, V, 3 (State v. ^Vheeler. 141 N. C, 773) ; 0., XII, 2 (Cincinnati Gas Light Cnrnpanji v. State, 18 0. St., 237) ; Ore., IX, 1 (Wallace V. Board, 47 Ore., 584 ; YamMU Co. v. Foster, 53 Ore.. 124) ; S. C, X, 1 ; XI, 6 (State V. Tucker, 56 S. C, 516 ; Laurens v. Anderson, 75 S. C, 62) ; S. D., XI, 2 (24 S. D., 433) ; Tenn., II, 28 (Ry. Co. v. Wilson Co., 89 Tenn., 597) ; Tex., VIII, 1 (Roundtree v. City of Galveston, 42 Tex., 612 ; Lively v. Ry. Co., 102 Tex., 545; Insurance Co. v. State, 42 Tex., 639) ; Titah, XIII, 2 (Parker v. Quinn, 23 Utah, 332) ; Wasb., VII, 1 (State v. Parmcnter, 50 Wash., 164) ; W. Va., X, 1 (C. <£• S. Bridge Co. v. County Court. 41 W. Va., 658) ; Wyo. XV, 11 (Kelley v. Rhodes, 7 Wye, 237, 253). Cases in point do not seem to exist in every state. The extent of the general property tax varies. Some states require all property not specifically exempt from taxation to be taxed unlformlv. Others provide that property taxes must be uniform, which effectually prevents classification and so results In a tax upon pretty much all property. A few states allow certain Intangible property to be taxed at a different rate from property In general. ''Especially Pa. 'Property is of course a legal concept merely and is not dependent upon in- trinsic value. Intangibles have, obviously, no intrinsic value ; they are merely evidences of the value of something else and of legally-enforceable claims thereto. STATE CONSTITUTION-MAKING. 259 face value* but bearing two and eight per cent, interest is obvi- ous ; it is, however, only an extreme instance from among many analogous ones in general property taxation. In practice, un- der the general property tax, intangible personalty is for the most part concealed from assessing authorities. This fact and the lack of adequate means of assessing many other forms of personal property cause the general property tax in reality to become largely a tax upon real estate. About a third of the constitutions,^ therefore, have clauses „ 21?- ' ' Classification of similar purport to the Kentucky amendment of 1915, — of Property. Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax ; and all taxes shall be levied and collected by general laws. The General Assembly shall have i)Ower to divide property into classes and to determine what class or classes of property shall be sub- ject to local taxation.' The diflSculties inherent in ascertaining even the tangible property of great corporations like interstate railroads has led not only to special machinery for assessing corporations but to the abandonment in some states of the property tax so far as they are concerned and the substitution of a system of taxation based upon their receipts in business.' It is cutsomary in such states to reserve corporation taxes for state purposes, and, in- deed, a usual accompaniment of the movement against the gen- eral property tax and in favor of taxing diflferent objects at dif- ferent rates is the reservation of certain kinds of property for state taxation and others for local taxation. The separation of the sources of state and local revenue is one of the most strongly *In tlie case of stocks that are listed on the market statutes customarily pro- vide that their taxable value is their market value. "In addition to those which specifically authorize classification there are some states in which the right to do so is not denied and has been assumed. The Civic Federation of Chicago (Pamphlet, Apace with Progress, p. 19) gives the following list of states which have permitted or to some extent adopted classifica- tion : Ariz., Colo., Conn., Del., Ga., la., Ky., Md., Mass., Mich., Minn., N. M., N. Y., N. D., Okla., Pa., K. I., Vt., Va., Wis. To this list should be added Ida. and N. J. In 1916 111. and S. D. will vote on classification. "The amendment provides also that "Any law passed or enacted by the Gen- eral Assembly pursuant to the provisions of or under this amendment or amended section of the Constitution, classifying property and providing a lower rate of taxation on personal property, tangible or intangible, tban that upon real estate, shall be subject to the referendum power of the people, which is hereby declared to exist to apply only to this section, or amended section." 'See Cal., XIII, 14 (a) ; Minn., IV, 32a. 260 STATE CONSTITUTION-MAKING. advocated changes that are being currently urged for state tax systems.^ Frequently the reliance of the state government on cor- poration, inheritance and, perhaps licence and income taxes, leaves the general property tax entirely to the localities." The danger that careless and irresponsible legislatures might exempt corporations from taxation by charter, and that the exemption under the impairment of contracts clause^ might be held to be irrevocable, has resulted in clauses in about half of the constitu- tions forbidding the legislature ever to suspend or contract away the power to tax corporations or, occasionally, the power of taxation in general.^ Constitutional attention to specific kinds of property is not confined to great industrial and commercial organizations. Domestic animals,' expositions* and ferries^ are examples Mines'and along with the extremely interesting special treatment of min- Porests. gp^j j^jj^ timber resources. Thus South Carolina" exempts mines from the general property tax and ordains that the products of mines and mining claims alone shall be taxed, and Wyoming provides that all mines and mining claims from \yhich gold, silver and other precious metal, soda, saline; coal, mineral, oil' or other valuable deposit is or may be produced, shall be taxed in addition to the surface improve- ments and in lieu of taxes on the lands, on the gross product thereof as may be prescribed by law, provided that the product of all mines shall be taxed in proportion to the value thereof. In Massachusetts' the legislature is given full power to prescribe for wild or forest lands such methods of taxation as will develop and conserve the forest resources of the state. 'Required by Cal. constitution, XIII, 10, 14; note sec. 14 (e). °e. g., N. y., Wis. Wis. alone has made the income tax successful. Though administered entirely by the state, the receipts are for the most part turned over to local governments. 'U. S. Const., I, 10. Mest of states, — e. g., Tenn., I, 20 ; see Home of the FHendless v. Rouse, 8 Wall., 430 ; Coriiigton v. Kentucky, 173 U. S., 231. "e. g., the power of taxation shall never be surrendered, suspended or con- tracted away. (Ariz., IX, 1 ; Minn., IX, 1 ; Olila., X, 5) ; power to tax corpora- tions or corporate property not to be surrendered or suspended by act of legisla- ture. (La., 228; Mo., X, 2; Tex., VIII, 4). 'e. g.. Miss., IV, 112. ^Arls., XVI, 5. 'e. g., ii). »X, 1. 'Amend. XLI. STATE CONSTITUTION-MAKING. 261 These various inroads upon its original and absolute signifi- cance are gradually disintegrating the general property tax. Licence or privilege taxes upon business and occupations 221. Licence Tax. are especially characteristic of the South and, notwithstanding their condemnation from the point of view of both theory and practice by students of taxation, they form part of the revenue system of every state. Though required by none of the con- stitutions, about one-third expressly permit or regulate them.' A poll tax is required by fourteen constitutions," subject to 222. various limitations as to age, sex, purpose and amount. It usually falls upon males between twenty-one and fifty or sixty years of age, and the proceeds usually go to the support of edu- cation. The poll tax seldom exceeds one or two dollars per year. Georgia^ provides that no poll tax shall be levied except for educational purposes, and such tax shall not exceed $1 annually upon each poll. Eight other states^ expressly permit the levy of a poll tax and four^ prohibit it. According to the Maryland Bill of Eights* the levying of taxes by the poll is grievous and oppressive and ought to be prohibited. The poll tax without any constitutional authorization forms a part of the revenue systems of the twenty-one states remain- ing. There are numerous variations in detail : for example, in Illinois it exists only in the form of a permissive road tax for counties and in Vermont polls are taxed as property of the arbitrary value of two hundred dollars.'' Twelve constitutions expressly permit the levying of income ^ 223. taxes." In Ohio at least half of the income tax must be re- turned to the city, village or township in which it originated. »Ala., Ariz., Ark., Fla.. Ida., 111., Ky., La., Mont, Neb., OJsla., S. C, Tenn., Tex., Utah, Va., W. Va., Wis. See, also, Mass.. Pt. II, ch. 1, sec. I, 4. »Ala., Ark., Del., La., Me., Miss., Nev., N, H., N. C, R. I. (voters only) ; S. C, Tenn., Va., Wyo. (county purposes only). 'VII, 2, par. 3. Held not to prevent requirement to work on roads. 2Fla., Ida., Ky., Mass., N. D., Okla., Tex., W. Va. sCal., Md., Ore., O. «XV. i>The tax is $2. »Ariz., IX, 12 ; Cal. XIII, 11 ; Ky., 174 ; N. C, V, 3 ; 0., XIII, 8, 9 ; Okla., X, 12 ; S. C, X, 1 ; Tenn., II, 28 ; Tex., VIII, 1 ; Utah, XIII, 12 ; Va., XIII, 170 ;' Wis., VIII, 1. 262 STATE CONSTITUTION-MAKING. In North Carolina the tax must not fall upon the income from taxed property. In South Carolina the permission is for a graduated tax on incomes. In Tennessee it is authorized only on incomes derived from stocks and bonds not taxed ad valorem. In Virginia the permission extends only to incomes in excess of |600. Wisconsin is the only state which has made the income tax successful as a source of revenue — a result generally at- tributed to its administration by the state tax commission and assessment by employees of the commission appointed after competitive civil service examinations. Only four others^ of the states constitutionally permitted to do so at present levy an income tax. Among the thirty-six states which do not ex- pressly authorize it, the income tax is in use only in Mississippi, though Massachusetts taxes certain incomes as personal property. The income tax is one of the most approved of modern reve- nue producers.^ The careful administration of the federal in- come tax should facilitate state administration and encourage the adoption of the tax by the states. The taxation of the right of inheritance is expressly author- 224 ized by five constitutions." Virginia^ recognizes it by providing Tax. that it shall apply to, legatees or devisees whose property is otherwise exempt, and Alabama^ by limiting such taxation to collateral succession and to two and one-half per cent, of the value of the estate. Arizona, Ohio and Oklahoma expressly authorize the taxation of both direct and collateral succession at graduated rates. In Ohio at least half of the tax must be returned to the government of the locality where it originated. Louisiana forbids a rate higher than three per cent, and exempts 110,000 in the case of direct heirs and limits the rate to ten per cent, upon collaterals. Bequests to educational and other in- stitutions, furthermore, are exempt and all of the proceeds of the inheritance tax go to the support of public schools; but the tax must not be levied when the property has borne its just proportion of taxes prior to its passing — a clause apparently 'N. C, Obla., S. C, Va. 'Income tax In harmony with tendency throughout world : Seligmau, The Income Taw, 642. »Arlz., IX, 12; La., 235, 236; N. H., II, 6; 0., XII, T, 9; Okla., X, 12. >XIII, 183. 'XI, 219. STATE CONSTITUTION-MAKING. 263 well-calculated to render nugatory the entire tax provision. New Hampsliire imposes no limitations upon its authorization of the tax. All of these states, except Alabama, impose inheritance taxes; they do not, in every instance, however, take full ad- vantage of their constitutional authority. Thus Ohio does not tax successions to direct heirs, nor collateral successions of less value than $200. Of the forty-one states^ whose constitutions make no mention of the matter, thirty-three^ make the in- heritance tax a part of their revenue systems. In regard to the proposal to obtain all the revenue needed for the support of all governmental activity by means of the taxa- tion of land values — the so-called "single tax" — the constitu- „. 225. ° Single Tax. tions are silent save that Ohio* forbids the use of the initiative or referendum for the passage of a law authorizing it. A few cities, however, for example Pittsburgh,^ tax land at a higher rate than improvements and the very earnest agitation that is being carried on in favor of the gTadual adoption of the single tax appears to be receiving the approval of a widening circle of students.* While the preceding paragraphs by no means exhaust the objects and kinds of taxation provided for in the state consti- tutions, they take note of all the important ones. Mention must now be made of constitutional exemptions, of which the variety gxemotions is extensive. Armories,'^ cemeteries,' family supplies," specified amounts of personal property ranging from .flOO^ to |1,000,- fruit and nut trees,^ widows' property* and wearing appareP 'All save Fla., Ga., Ind., Miss., Nev., N. M., R. I., S. C. Ala., XI, 122; Mont., V, 36. 2e. g., N. C, I, 23. 'IV, 70 (three-flfths present and voting). *See, also. Ark., V, 31 ; Va., IV, 50. An extraordinary quorum is necessary on passage in N. Y., Vt., Wis. »Ky., Mich., Miss., N. J., N. M., N. C, Okla., S. C, Tex., Va. See, also, Ala., XI, 211 ; Colo., X, 3 (just valuation) . eVIII, 6. 'VIII, 7. se. g.. Ariz., IV, 9; Wis,, IV, 31. "e. g.. La., 225 ; Va., VIII, 128. Speaking of state taxes levied and collected by local officials, Macy and Gannaway (Oomparative Free Oovemment, p. 338) say that "probably no other of the states' activities has given cause tor more complaint and greater dissatisfaction." >XIII, 3; VII, 2. nx, 1. STATE CONSTITUTION-MAKING. 267 In California and Wyoming^ land and the improvements thereon must be separately assessed and in the former culti- vated and uncultivated lands of the same quality and similarly situated must be assessed at the same value. Plowing is not to be considered as adding to the value of land in New Mexico and North Dakota/ nor are the cultivation upon it of orchards, forests or hedges in Colorado and Nebraska." In nine states" the assessment of the property of public utili- ties, such as railroads and telegraph lines, or corporations own- ing property in more than one county, is especially provided for — usually by requiring that it shall be by a central board. In- deed, as a matter of practice, in more than half the states, cen- tral boards, usually called tax commissions, have heen created and given not only this duty, but the duty of supervising all assessments. The recent investigating commission of Ken- tucky' went so far as to propose the establishment of a permanent Central Tax Commission in charge of aill taxation In tlie State and responsible for the just administration of the tax laws, which shall specifically : a. Have and exercise strict supervision over tiie local assessment officers, instruct and guide them in all their work, and after the term of office of the County Assessors recently elected has expired, to organize a corps of expert assessors, under civil service rules, to take the place of the one hundred and twenty County Assessors who now work with- out supervision, instruction or training. Create larger assessment dis- tricts by the combination of counties into groups, so that assessors shall have work enough to occupy them the year round. 6. Take the place of the present State Board of Equalization. c. Exercise control over the local boards of supervisors and guide them in their work. d. Do the work of assessing railroads, franchises, bank stock and other property now assessed by ex officio boards. e. Look after the license taxes, inheritance taxes and all other taxes. sxiii, 2 ; XV, 1. Cal., IV, 31; Colo., XI, 1; Ida., VIII, 2; 111., IV, 20; Ky., 177; La.. 58; Mich., X, 12 ; Mo., IV, 45 ; N. M., IX, 14, 15 ; Okla., X, 15 ; Tenn., II, 31 ; Tex., Ill, 50 ; Va., XIII, 185 ; W. Va., X, 6. Del. requires vote of three-fourths the members elected to each house, VIII, 4. ^Colo., XI, 1 ; 111., IV, 20 ; Ind., X, 6 ; La., 58 ; Utah, XIV, 6 ; Va., XIII, 185 ; W. Va., X, 6. Excepting indebtedness for purposes of defence, — Ark., XII, 12 ; Ga., VII, sec. VIII, 1 ; Ida., XII, 3 ; Ky., 176 ; Ale., IX, 15 ; Nev., IX, 4 ; O., VIII, 5; Okla., X. 14; Ore., XI, 8; also Pa., IX, 9 (further exception of assisting state to discharge "present" debt). See, also. 111., Sched, 24. 'e. g., Ind., XI, 12 ; La., 58 ; Tenn.; II, 31 ; see, also, Del. VIII, 4 ; N. C, V, 4 'e. g., Ind., X, 6 ; la., VII, 1 ; S. D., XIII, 1. STATE CONSTITUTION-MAKING. 273 roads, canals, telegraph lines, banks or internal improvements, finds occasional prohibition. ° The specific authorization of indebtedness is also frequently' Auttoi-iza- found, as for expenses not provided for or of an extraordinary ^'j'^j^l^j^^ ^^ nature, or to meet deficiencies of revenue." Such debts, to a ''°'*^'"^''°«^^- limited amount, may sometimes be entered into by administra- tive offlcers. Limitations on the amount vary from |50,000^ to $1,000,000.* For the payment of existing indebtedness,* and the defence of the state,^ as well as for the constructive pur- poses of providing public improvements,- as buildings^ or high- ways,* debts are also sometimes authorized. Limitations upon the amount of the state debt as a whole are contained in some constitutions and are of two kinds, — specific maxima expressed in dollars^ and percentages of the assessed value of the taxable property of the state." A few states set limitations to apply in case there is no referendum to the voters.'^ The manner of giving evidence of indebtedness, as by bonds, is a not unknown prescription* nor is the denomination of the bonds" or their sale price. Minnesota,' for instance, enjoins that they shall not be sold below par. Extraordinary procedure in the passage of laws providing for the use of public credit is not infrequently required.^ A large majority of the constitutions require that such laws prOTLons shall include provision for a tax levy or the setting aside of a ^'"" ^^y™^"'- sinking fund for the payment of interest or both interest and »e. g., Tenn., II, 33 ; Ind., X, 7 ; Wyo., X, Railroads 5 ; Ala., XIII, 253, IV, 93. «e. g., Ariz., IX, 5 ; Kan., XI, 5 ; Ind., X, 5 ; Wash., VIII, 1. 'Md., Ill, 34; (from prohibition of debts without corresponding tax). =e. g.. Pa.. IX, 4 (in the aggregate). See, also, Kan., XI, 5; N. Y., VII, 2. «e. g., ma.., IX, 16 ; La., 324. le. g., Ky., 49 ; Md., Ill, 34. ^Kan., XI, 5. se. g., Minn., IX, 14; Utah, XIV, 1. 'Me., IX. 17 ; N. Y., VII, 12 ; Ore., XI, 7. =e. g.. Me., IX, 14 ; Ore., XI, 7 ; S. D., XIII, 2, 3. "e. g., Utah, XIV, 1 (15^ per cent.) ; Wyo., XVI, 1 (1 per cent). Certain exceptions in each case. 'e. g., Cal., XVI. 1 ; Ida., VIII, 1 ; Wyo., XVI, 2. sMinn., IX, 6 ; S. C, X, 11 ; see, also, e. g., Ark., XVI, 1 ; Wis., VIII, 9. "e. g., to be in amounts of not less than $50, — S. C, X, 11. See, also, Colo., XI, 3 ; Minn., IX, 6. iIX, 6. H. g., Ala., XI, 213, — passage by two-thirds of the members of each house. 18 274 STATE CONSTITUTION-MAKING. principal, which provision is sometimes made irrepealable.' Maryland^ ordains that no debt shall be hereafter contracted by the General Assembly unless such debt be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on such debt as it falls due, and also to discharge the principal thereof within fifteen years from the time of contracting the same ; and the taxes laid for this purpose shall not be repealed or applied to any other object until the said debt and interest thereon shall be fully discharged. Colorado^ and Nebraska" undertake the precarious task of fixing or limiting the rate of interest to be paid on state obliga- tions. Iowa and Washington' provide that it shall not be less than six per cent, on indebtedness incurred to reimburse school fund losses by default, payable to the fund sustaining the loss. A time limit for redemption is frequently set, varying from five* to seventy-five" years. West Virginia^ has the unique clause that payment of any liability other than that for the ordinary expenses of the state shall be equally distributed over a period of at least 20 years. The constitution submitted to the voters of New York in 1915 contained the provision that 238. all debts contracted by the state after the second day of November, one ena on s. ^jj^i^g^jj^ nine hundred and fifteen, pursuant to an authorization there- for ; heretofore or hereafter made and each portion of any such debt from time to time so contracted irrespective of the terms of such authori- zation, shall be paid in equal annual instalments, the first of which shall be payable not more than one year, and the last of which shall be pay- able not more than fifty years, after such debt or portion thereof shall have been contracted. No such debt hereafter authorized Shall be con- tracted for a period longer than that of the probable life of the work or 'e. g.. Neb., XII, 1 ; N. Y., VII, 4 ; 0., XII, 11 ; S. D., XIII, 2. nil, 34. ''XI, 3. Three per cent, payable semi-annually at state treasurer's oflBce or some place in New York City, in case of specific authorization of bonds to fund outstanding state warrants. "IX, 8. Rate on bonds, funding debt and warrants outstanding at time con- stitution adopted not to exceed 8 per cent, per annum. 'VII, 3; IX, 5. 8Wis., VIII, 6. »Cal., XVI, 3. IX, 4. STATE CONSTITUTION-MAKING. 275 object for which the debt is to be contracted, to be determined by gen- eral laws, which determination shall be conclusive.'' The requirements for the issuance of bonds falling due serially is considered by financiers a distinct advance over the old method of building up a sinking fund to meet them when, at the date of expiration, the entire issue must be accepted for pay- ment. Obviously the new method is simpler and cheaper. Constitutional provisions governing the indebtedness ot^^^lf- counties and cities and other local subdivisions of the states are indebtedness. varied and lengthy but, on the whole, involve nothing essential that has not already been noticed in the limitations on the leg- islatures' power of employing the public credit for state pur- poses. It is important to bear in mind the legal difference be- tween the position of a creditor of the state who can bring suit to enforce his claim only by consent of the state^ and the creditor of a subdivision which can be haled into court under the same circumstances as can a private individual. The constitutional clauses, furthermore, especially in the case of cities, go into much greater detail and are likely to authorize indebtedness amounting to a much higher percentage of assessed property valuations; as high, indeed, as fifteen per cent, in at least two commonwealths.* Perhaps the most interesting and significant of the purely local provisions is that of Alaibama'' to the effect that private, local or special legislation authorizing the issuance of bonds or other securities is forbidden unless authorized before the en- actment of such law by a vote of the qualified electors of the locality in question at an election to be held for the purpose in the manner prescribed by law; though the legislature, without such an election, may pass special laws to refund bonds issued before the ratification of the constitution. Furthermore, the legislature may pass general laws authorizing counties to issue ^IX, 4, certain exceptions. See N. Y., VII. •Suits against the state are authorized by nearly half the constitutions, — e. g., .La., 1&2 ; C, I, 16. Modern opinion generally frowns upon the practice of the state's hiding behind its sovereignty to avoid its obligations. 111. (IV, 26), however, and a fevr other states expressly forbid suits against themselves. A ver- dict against the state, where suits are allowed, usually results in an appropria- tion to pay the debt. ^Neb., XII, 2 ; S. D., XIII, 4. "IV, 104 ; XII, 222. 276 STATE CONSTITUTION-MAKING. bonds ; but there must also be held a vote of the qualified elec- tors upon each proposition. This provision does not apply to the renewal, refunding or reissuing of bonds lawfully issued or authorized before the adoption of the constitution, nor does it apply to obligations incurred or bonds issued to pay for street and sidewalk improvements or sanitary or stormwater sewers, the cost of which is assessed in whole or in part against prop- erty abutting said improvements or drained by such sewers. Regarding the whole question of the use of the public credit, 240. the agreed wisdom of commentators seems to indicate that a General Con- ° , tj. • x. Biderations. citizen may sensibly look upon its use m the state's lite just as he looks upon his own credit in his own business. There is noth- ing inherently good or bad in public indebtedness. So long as it is used for constructive purposes and kept within reasonable bounds, it is justifiable; when used for current expenses or to meet obligations for the purchase of goods that quickly perish, it is clearly vicious. The time limit for the payment of the debt should never be beyond the life of the thing for which it was incurred nor beyond the continuance of the generation of citizens whose desires prompted its purchase. Every law per- mitting a debt should, it is needless to say, provide also for the payment of the debt, by taxation or otherwise. Where the pro- ceeds of borrowing are used to establish public ntilities that will yield a profit, the amount of the bond issue may well be excepted from the limited amount for general purposes based upon the locality's assessed valuation. There are in addition some considerations in relation to public debts that do not apply to the debts of individuals. Every effort should be made to keep the public bonds in the hands of citizens rather than to sell them to foreign investors; likewise to sell them to as many individual citizens as possible. The former will prevent the taxation of the citizens of a community to support the citizens of another locality or state. The latter will check the growth of a bond-holding class at home. The issuance of bonds in disregard of these precepts may result in an unhealthy distribution of wealth." "Ernest Cawcroft, then Popiity State Treasurer of New York, in his article on Existing OonsUtutional Limitations on tiioiiiul State Fiscal Policy (V, Pro- ceedings of the Academy of I'oUtical Science, L'-tl) treats interestingly some of the questions raised in this chapter. STATE CONSTITUTION-MAKING. 277 Tennessee Note. — The use of public credit in Tennessee has played a very considerable part in the state's political history.' The constitu- tion, however, contains no provision upon the subject o( state indebted- ness save that the credit of the state shall not be extended to or in aid of private persons, corporations or municipalities, and that state foonds shall not be issued to railroads which have defaulted in interest pay- ments upon previously owned bonds or have disposed of them for less than par.' The credit of cities and counties can be extended to or in aid of private parties only after an election in which the assent of three- fourths of the qualified ^-oters is obtained." The administration of the state debt is the function of the state funding board, composed of the governor, secretary of state, comptroller and treasurer." i CHAPTER XVII. Conservation and Social Welfare.^ Self-peeservation is doubtless the first instinct of human- 241. ity, but human beings, both in their individual affairs and in '"'"'"'^"'^'"■^y- the conduct of their common business through their govern- mental agents, have in practice made use of this instinct chiefly to resist the more overt and apparent dangers that have threat- ened their lives and property. Often they have entirely neg- lected those subtler and more insidiovis enemies that lurk in hidden places and bring death and destruction before they are suspected, much less understood. Individuals and states have from the beginning of time been on guard against war and vio- lence. Only in very modern times have they systematically sought to shield human life from disease and natural resources from wanton destruction. Only in our own day has hopeful 'See Scott, op. cit., pp. 131, seq., Caldwell, Constitutional History of Tennes- see, pp. 241, seq. »II, 31, 33. These provisions are the natural result of unfortunate experience. »II, 29. iSee Acts of 1915, ch. 58, 67. "General References : Commons and Andrews, Principles of Labor Legisla- tion; Goodnow, F. J., Social Reform and the Constitution: Clark, L. D., Tlie Law of the Employment of Labor; Eastman, Crystal, Work-Accidents and the Laic (iPlttsburg Survey. Russell Sage Foundation) ; Orth, S. P., Readings on the Relation of Government to Property and Industry: Seager, H. R., Social Insiir- 14) ; American Labor Legislation Revieu'i Monthly Rerieiv, issued by the U. S. Bureau at Labor Statistics; Report of Industrial Relations Commission (U. S.), 1915 ; Van Hise, C. R., The Conservation of Natural Resources in the United States. 278 STATE CONSTITUTION-MAKING. effort been put forth to rid society of the twin evils of poverty and crime. The status of health laws has become fixed in American juris- prudence and their necessity is no longer disputed. Constitu- tion-makers of the present, however, have thoroughly to consider the proposals that are being made to prevent the sacrifice of human life and vitality by the alleged mal-adjustments of pres- ent-day industrial organization. They may well consider, also, ways to preserve, as the common property of all, those nat- ural resources — especially mines and forests — ^the quantity of which is distinctly limited and which are peculiarly in peril from the rapacity of individuals who think in terms of their own limited lives and not in terms of the perpetual life of society. "We cannot," President Roosevelt once said, addressing a conservation conference,^ wben the nation becomes fully civilized and very ricti, continue to be civilized and rich unless the nation shows more foresight than we are showing at this moment as a nation. He was seeking to stop the waste of the natural resources of the country, but his prophesy has even more weight when ap- plied to what some writers call the country's human resources. If the people desire the life of the states and nation and' the prosperity which is essential to their highest vitality and civili- zation to continue forever, they must take far-sighted steps to prevent the impairment of their own personal powers as well as the destruction of mines and forests and the soil and the streams. Needless to say the former is incomparably the more important, but the importance to human progress of adequate natural resources can scarcely be overestimated. The states and the nation have already begun to show activity toward the con- servation of both. From the numerous special phases of the question that might be discussed, those of labor legislation and the correct use of timber, mineral and water power resources are selected for treatment here. Their mention in the state constitutions is rather infrequent. 'Proceedings of Conference of Oovernora, 1908, 3 (4). STATE CONSTITUTION-MAKING. 279 Modern industrial conditions apparently make inevitable j^l^^t^iai occasional accidents which deprive employes of life or limb, f^^p^jj""^' Furthermore, they bring together vast numbers of persons who Power and are paid small wages and consequently ate unable to meet with Process." a suspension of those wages without destitution. Present-day factories are often unsanitary, the homes of employes, frequently owned by the owners of the plants at which they work, are often inconceivably unhealthful. Inability tq move easily from place to place and to lay down one kind of work and take up another often results in a surplus of men desiring work of a given kind at a given place and consequently puts the employer in a posi- tion to obtain workers at wages barely sufQcient to sustain life. The use of labor-saving machinery makes possible the widespread employment of women and children — even very young children — in the mills. In the large cities many dwellers in tenements undertake the manufacture of clothing and other articles, employing their whole families amidst revolting sur- roundings. . All of these and , other conditions present obvious obstructions to the attainment of individual welfare and conse- quently to the health of society. To deal with more ancient evils than these there has grown up in jurisprudence the theory of the police power, whereby the people as a whole may regulate the conduct of individuals — abridge their liberties — in the interest ■ of society and social welfare. "It may be said in a general way that the police power extends to all the great public needs."^ In contra-distinction to the police power stands the doctrine of individual rights^especially the right not to be deprived of life, liberty or property without "due process" of law* — firmly imbedded in the bills of rights and other clauses of constitutions. Vague and meaningless at first sight, these legal doctrines as- sume enormous practical importance when applied to a given state of facts. The legislature passes a law providing that a »Mr. Justice Holmes in Noble State Bank v. Haskell, 219 U. S., 104 (110, 111) . He adds : "It may be put forth in aid of what Is sanctioned by usage or held by the prevailing morality of strong and preponderant opinion to be greatly and Immediately necessary to the public welfare." Various conceptions of the police power are discussed by W. W. Coot in ColumMa Law Review, May, 1907. The most valuable treatise on the subject is Ernest Freund's The Police Power. *See federal constitution amend. 5 and 14 ; this or similar provision in the state constitutions. See McGhee, Due Process of Law; Pound, Boscoe, Law in Books and Law in Action, XLIV American Law Review, 12. 280 STATE CONSTITUTION-MAKING. person injured in an industrial accident shall be remunerated by his employer, irrespective of who was at fault in the accident. Is this taking the employer's property without due process of law, or is it merely an exercise of the police power to prevent the social ills consequent upon the destitution of the helpless man's dependent family? The difference of opinion existing among the people concerning this and other similar questions is reflected by the courts, which have handed down varied and con- flicting opinions regarding the constitutionality of legislative acts supposedly passed under the police power. The most im- portant of these enactments are workmen's compensation laws, laws flxing hours of work or a minimum wage and laws regulat- ing the labor of women and children. The common law, as originally interpreted in the United Workmen's states, made the employer liable in damages for injuries to em- Son''^''^* ployes received from accidents occurring in the course of em- ployment provided the injury was due to the employer's negli- gence ; and what should constitute negligence was gradually ex- tended and widened both by statute and by judicial decision, until it generally included his own or his agents' failure to main- tain suitable safety devices and other means to insure reason- ably safe working conditions. Still, however, the employe as- sumed the risk — in the eyes of the law — for unavoidable acci- dents, and for accidents resulting from the carelessness of other employes of his own or inferior grade. Moreover, any careless- ness on his own part that contributed to his injury prevented his recovering damages. While the employer has been shielded by these three defences of Assumption of Eisk, the Fellow Servants Rule and Con- tributory Negligence," numerous hardships have resulted to the employe. Furthermore, even when the right of action by the injured employe was recognized, delays, in the courts and in- equalities in counsel — the wealth of the employer usually pro- viding more skilful attorneys, — somewhat offset, it is true, by the sympathies of jurymen, made justice at best expensive and uncertain. Consequently in the nineties, the idea that a better way would be for society or the particular industry as a whole ■^See McOeeffan v. Hughes, 15 Dlst. (Pa.), 249; Fnnrcll v. RaTlroad, 4 Met. (Mass.), 49; McOulley v. Clarle, 40 Pa„ 399. STATE CONSTITUTION-MAKING. 281 to ibear the burden of accidents — just as all the subscribers to fire insurance companies bear the losses of each lire^ — bore fruit in an act of Parliament, fathered by Joseph Chamberlain, estab- lishing what is known as the "workmen's compensation" system. Instead of attempting, with hair-splitting nicety, to determine who, if anyone, is to blame for any injuries that may be sus- tained through the accidents that, in spite of precautions, some- times occur, workmen's compensation undertakes to guarantee support for himself and family to every workman disabled by accident occurring in the course of his employment, unless the result of his own wilful misconduct. As forerunners of the workmen's compensation movement came a number of statutes and constitutional clausses abolishing the fellow servants rule and other common law limitation upon employers' liability.^r During 1910 and the five years following, no less than thirty- „ 244. ° .' o> .; Compensation one states'' adopted workmen's compensation laws. Among statutes. them were included all of the states north of the Ohio and Po- tomac and east of the Mississippi except Delaware, but none of the southern states lying wholly east of the Mississippi. The progressive West, however, has joined the conservative East in enacting such laws. Amounts of compensation for disability and death are fixed by the acts and are usually expressed in per- centages of the injured party's regular earnings.^ Disputes are usually settled by designated administrative officials, subject to a limited review by the courts." A majority of the acts make some provision for insurance — either compulsory or permissive — in order that the required "Thus in Virginia (XII, 162) the fellow servant rule and assumption of risk rule are abolished in part as to railroad employes engaged in certain classes of work. Contract or agreement by employe to waive this provision to be void. Legislature may enlarge such rights and remedies of such employes, or extend such rights and remedies lo or otherwise enlarge present rights and remedies of any class of employes of railroads or of employes of any person, firm or coi-pora- tlon. See, also, Ariz., XVIII. 3. 4. 7 ; Colo.. XV, I.t : Miss., VII, 193 ; Mont., XV, 16 ; N, M., XX, 16 ; Okla., IX, 36 ; S. C, IX, 15 ; Wyo., IX, 4, X, 4 ; XIX, Labor contracts. 'Ariz., Cal., Colo., Conn., Ill,, Ind„ la.. Kan., La., Me., Md., Mass., Mich., Minn., ilont., Xcb„ Nev., N. M., N. .T., X. Y„ 0„ Okla., Ore., Pa,, R. I., Tex., Vt., Wash., W. Va.. Wis., Wyo., (eight of these were in 1915). Also, Alaska. Canal Zone (workmen employed on the canal and subsidiary enterprises) and Hawaii. By act of May 30, 1908, the federal government adopted workmen's compensation in governmental enterprises to which it is appropriate. See Bulletin of Bureau of Labor Statistics. »In case of death compensation goes to the deceased's dependents. The Okla. statute does not apply to fatal accidents. "There are a number of instances of final decision by non-judicial officers (U. S.) and of consideration in the first instance by courts or by Judges having power of summary decision (La.). 282 STATE CONSTITUTION-MAKING. compensation may be forthcoming. Contribution to a state fund for the purpose is the most advanced method. In only three states^ is any arrangement made for relieving the em- ployer of the full cost of compensating the workmen. Taken as a whole, the workmen's compensation acts are di- compuisory vided into two main classes, (1) those which make compulsory Laws*.''*^°°°^' upon the employer the payment: provided for, and (2) those which leave the adoption of the system formulated in the law to the employer's election.- As an accompaniment of the latter or optional workmen's compensation it is customary to take away the fellow servants rule and other defences. Doubt as to the validity of compulsory workmen's compensation under the due process clause makes of it a constitutional question and so a necessary part of the present study. The actual experience of having compulsory workmen's com- contotu- pensation legislation declared unconstitutionaP or the uncer- thorization. tainty which adverse decisions have thrown around such legis- lation has resulted in six constitutional amendments specifically authorizing it.* Arizona's original constitution^ made manda- tory the enactment by the legislature of a compulsory compen- sation law, applicable to employments deemed by the legislature to be especially dangerous, but allowing the employe the option of settling for his injuries under it or suing the employer in the regular way. Though otherwise similar, the Wyoming pro- vision is that the right to compensation shall take the place of the employe's right of action against the employer. In the other states the legislature is merely permitted to enact compulsory 'Mont, (contribution to hospital fund may be arranged) ; Nev. (employer may deduct $1 per month from each employe's wages tor medical and other expenses) ; W. Va. (employers- 90 per cent, employes 10 per cent). In Me. if employes con- tribute to a substitute scheme, additional proportionate benefits must be paid. ■^Some compensation laws apply to especially hazardous employments only ; others define as "hazardous" all the employments they cover in order to bring them within the especial protection of the police power. ^he adverse decision in New York, on the ground that compulsory compen- sation without regard to his negligence deprived the employer of property with- out due process of law, led directly to the amendment of 1012. Ires v. South Buffalo Railway, 201 N. Y., 271. This decision was shortly disapproved by the supreme court of Washington — People v. State Auditor, 107 Pacific, 1101. See, also, Yaple v. Creamer, 85 O. St., 349 ; Western Indemnity Co. v. Pillabury, 151 Pacific, 398 (Cal.) ; Janaen v. Sou. Pac. Co. (109 N. E.), upholds N Y act of 1912. Acts of 1913, ch. 47 ; Acts of 1915, ch. 172. "Acts of 1915, ch. 32. 'Acts of 1913, ch. 43 (regular session). 'Report of the Workmen's Compensation Commission to the Fitty-ninth Gen- eral Assembly of Tennessee. (Obtainable from Mr. J. H. Turner, secretary, Nash-rtlle). The public hearings of the commission have been published in a substantial volume. STATE CONSTITUTION-MAKING. 295 CHAPTER XVIII. Home Eule for Cities.^ The people of the states, in making their constitutions, have „ ^ei. enumerated certain rather inclusive rights which thev declare Problem of ° •' Home Eule. to belong inherently to individual citizens and in which individ- ual citizens are guaranteed against the possible encroachments of the government. May not the people of the entire state say with equal reason and propriety that certain powers belong to particular groups of individuals — inhabiting perhaps specific subdivisions of the state — and that consequently the legislature may not interfere with them in the use of these powers ? This is the problem which the proposition to grant "home rule" to localities, especially cities, presents. In the study of local gov- ernment in contradistinction to the government of the states, it is the problem of foremost importance, The function of a municipal government is two-fold. It acts as the agent of the state and as a local governmental unit. From the legal point of view the problem of home rule resolves itself into a question of drawing the line between these sets "of func- tions. When a classification is made of purely local functions they may be legally determined — ^by constitution, legislature or courts — to be of a local nature and exercisable independently of state control. The doctrine of local self-government^ has always been one 262. of the mpst cherished/ of Anglo-Saxon political tenets ; but as the Government, simple governmental needs of a sparse and scattered people have developed into the complex requirements of a populous and highly organized society, it has become more and more diflScult to determine with precision just which governmental functions are of sufficient importance to the entire state to render their "On this subject generally, see McBain, H. L., The Law and Practice of Mu- ntolpal Home Rulej Goodnow, Frank J., Municipal Home Rule; Munro, W. Bi, Principles and Methods of Municipal Administration; Ctovernment of American Cities. 'See Baton, Amasa, M., The Right of Local 8elf-Oovernment, 13 Harvard Law Review, 441 (1900) ; McBain, H. L., The Doctrine of an Inherent Right of Local Self ■Ctovernment, begun in XVI Columbia Law Review, p. 190 (1916). See People V. HurUmrt, 24 Mich., 44 ; State v. Smith, 44 O. St., 348. 296 STATE CONSTITUTION-MAKING. exercise by state authorities expedient notwithstanding their in- timate relation to the varying individual desires of the state's subdivisions, and which functions, though of interest to all, may yet be expediently left to the local governing bodies. Obviously, if the majority is to rule, the smaller community must not inter- fere with the larger, the part must yield to the desires of the whole. But this fact furnishes no argument in favor of arbi- trary action by the state in dealing with its parts ; it certainly does not justify state action in matters that do not directly concern the state if such action runs counter to the will of the locality. A concrete example is found in the usual custom of allowing the counties to assess the property of the state from which it must derive its principal tax revenue, and, on the other hand, allowing the legislature to dictate to the localities par- ticular kinds of taxation for local purposes. In the opinion of many students just the reverse should obtain: where the state and its subdivisions derive revenue from the same class of property, the state should assess it, lest, by leaving it to sepa- rate counties, there result a lack of uniformity: on the other hand, the state should not force upon localities the general prop- erty or other particular taxes, but should leave them free to exempt personal property and buildings, perhaps, and, within very general limitations, to choose their own means of raising their revenues. The division of functions that is best for one period may conceivably be unfitted for a later period : there is likely to be frequent need of readjustment. The point of contact at which this division of functions is likely to be most keenly contested is between the state and its larger cities. The counties may justly feel at times that the state allows them too little freedom of action, but after all they are merely arms of the state formed to assist in the adminis- tration of its comparatively simple functions,^ whilst the char- tered cities are associations of individuals organized to exercise particular functions in addition to those which the state is ac- customed to make use of. Of more importance is the fact that the wants of the people of cities and, consequently, their govern- ments are more complex and more highly developed than those of counties and present more problems of purely local interest 'See Ingersoll on Public Corporations, ch. II, and cases there cited. STATE CONSTITUTION-MAKING. 297 California,* indeed, permits counties both to have charters and to frame them locally, but the question of home rule is chiefly concerned with the relations between ithe legislature and the chartered cities of the state. During the colonial period the few municipal charters that 263. . Development existed were conferred by the governors as representatives ofofLegisia- tive Control. the king or proprietors and the legisilature did not assume seriously to interfere in municipal matters." But when the state legislatures, the all-powerful governmental agents of the states, began to grant the charters, cities became entirely subservient to the legislative will. The nineteenth century, after 1820, saw, along with the vast growth of cities, an enormous expansion of special legislation dealing with particular cities. Increasing popular distrust of legislatures resulted in increasing constitutional limitations upon their control of cities, but these have for the most part had little effect. Meanwhile legislative incompetence showed itself nowhere more blatantly than in the laws passed for the regulation of ind;ividual cities. As Professor Munro says," the state gave and the state took away; but seldom did the citizens regard its handiwork as a blessing. The reasons why special legislaition for cities is an evil are 264. not far to seek. In the first place, no legislature has at its dis- special '^ ' ° Legislation. posal time to consider the various proposals for charter changes that rapidly growing cities, constantly desiring power to do par- ticular things not included in their general grants of power from the state, will bring before it at each session, clamoring for at- tention, lest their progress shall be hindered. The result is that local bills are put through the legislative mill by a system of log-rolling agreements amongst the delegations from the several cities, which delegations, though not necessarily representing the cities but only districts contained by them or in which they are situated, become thus the real charter-makers, or charter- mongers, upon which cities must depend. The members of these local delegations, whatever their qualifications, are certainly not elected with this end in view. *XI, 7!4, infra, ch. 21. "For example, the North Carolina constitution o( 1776 made no mention of the relation ol municipalities to the legislature. Only one charter — that of Bath — had been granted in North Carolina during the colonial period. 'Oovemment of American Cities, 69. 298 STATE CONSTITUTION-MAKING. In the second place, even if the legislature had sufficient leis- ure to consider the affairs of cities, its members, usually in large part from rural districts, are ill-acquainted with the conditions of city life and, what is worse, often predisposed to think that cities should be ruled precisely according to rural standards. "So long as the State Legislature can control the powers of the cities through special enactment, there is," as the late Professor Karns, with unsuspected magnitude of truth, remarked,^ "a pos- sibility that the will of the people may be defeated." The upshot of the whole practice is that the legislature impedes the development of the cities and the cities impede the work of the legislature. It is not surprising therefore that constitutions of the pres- incorpora- ^°* dlscIose a variety of efforts to protect the cities and the leg- era" Law ^" islatures from each other. First among them is the prohibition Classification. Qf special or local legislation for the incorporation of cities, found in about one-third of the constitutions,^ most of which cautiously include within the prohibition the amendment of city charters. Some additional states seem to accomplish the same end by a general clause forbidding special or local laws® or by requiring that legislation for the incorporation of cities shall be by general laws. No fewer than fifteen states,^ indeed, contain the latter provision, some of them, however, merely in addition to the prohibition of special laws. The end sought by these provi- sions has not been attained; means of evasion have as a rule been discovered by the legislature and its control over the cities continued. A favorite method of evasion has been developed from the obvious necessity of classifying the cities of the state in order that general laws may contain different provisions suited to the needs of cities of different sizes, situations and economic interests — a necessity recognized, indeed, in a num- ''Government of Tennessee (1896), p. 102. «Ala., IV, 104 ; Ariz., IV, 19, 17 ; lU., IV. 22 (except, under specified condi- tions. Chicago— IV, 34) ; la., Ill, 30 ; Minn., IV, 33 ; Mo., IV, 53 ; Neb., Ill, 15 ; N. M., IV, 24; N. D., II, 69; Okla., V, 46; Pa., Ill, 7; S. C, III, 34; S. D., Ill, 23 ; Tex., Ill, 56 ; W. Va.. VI, 39 (applies only to cities of less than 2,000 inhabitants) ; Wis., IV, 31 ; Wyo., Ill, 27. See, also, Va.. IV, VIII, 116, 117. Utah, VI, 26, 12, (orbias amendment by private or special legislation. 'e. g.. Aril., V, 25. lAriz., XIII, 1 ; Ark., XII, 3 ; Cal., XI, 6 ; Colo.. XIV, 13 ; Ida., XII, 1 ; Kan., XII. 5 ; Ky., 156, 106 ; Mich., VIII, 20 ; Mo., IX, 7 ; Nev., VIII, 8 ; O., XIII, 6 ; XVIII, 2 ; Olila., XVIII, 1, Sched. 10 ; Utah, XI, 5 ; Va., VIII, 116, 117 ; Wash., XI, 10 ; see, also, Miss., IV, 88 ; S. C, VI, 1 ; Wye, XIII, 1. STATE CONSTITUTION-MAKING. 299 ber of constitutions,^ by general clauses authorizing classifica- tion.^ No especial astuteness on the part of legislators is re- quired to arrange the classes so that each city of importance is in a class to itself and' special legislation, disguised as general laws relating to a class of cities, goes on as formerly.* To prevent this several states have designated their classifl- p^^^jj„ cations, according to population, in the texts of their constitu- tionai aas- tions.° The most elaborate of these, Kentucky's, divides the cities and towns of the state "for the purposes of their organiza- tion and governmenit" into six classes — (1) those having 100,- 000 or more people;" (2) 20,000 and less than 100,000;' (3) 8,000 and less than 20,000; (4) 3,000 and less than 8,000; (5) 1,000 and less than 3,000; (6) less than 1,000. An arrangement of this kind, while arbitrary from the point of view of the act- ual conditions and needs of particular cities, possesses the ad- vantages of having fewer and more general — Whence better con- sidered — laws regulating the government of cities and of free- ing the cities from the dictatorship of local delegations. New York,* which has a constitutional classification of 175,- 000 or more people, 50,000 and less than 175,000, and, finally, all other cities, provides that laws relating to the property, affairs of government of cities, and the 267. several departments thereof, are divided into general and special city Lo<=al ^^to. laws ; general city laws are those which relate to all the cities o^ one or more classes ; special city 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 conformity with the provisions of this section. After any bill for a special city law, relating to a city, has been passed by both tranches 'Legislature by general laws to provide for classification in proportion to population subject to provisions of this article. (Ariz. XIII, 1 ; Oljla., XVIII, 1). Legislature may provide for classification by general law. (Arls., XII, 3). Legislature to provide by general laws for classification in proportion to population, which laws may be altered, amended or repealed. ( Cal., XI, 6 ; Utah, XI, 5; Wash., XI, 10). The same adding "by general laws", — (Ida., XII, 1). Colo. (XIV, 13) and Mo. (IX, 7) provide for classification by general law and that the number of classes shall not exceed four. *The relative merits of special and general charters are discussed in the in- troduction to the Municipal Code of Ohio, (1901) edited by W. H. Ellis. The experience of Ohio witii legislative evasion of the constitution is thoroughly illustrative. *rhe courts have been exceedingly hesitant about interfering. See, however. State V. Jones, 66 Ohio, 453 (1902). =Ky., 156 ; Minn., IV, 36 ; N. Y., XII, 2 ; see, also, Va., VIII, 117. 'Includes Louisville only. 'Includes Covington, Lexington, Newport and Paducah. ^XII, 2, originated in constitution, 1894. 300 STATE constitiJtion-making. of the Legislature, tlie house In which it originated shall immediately transmit a certified copy thereof to the mayor of such cjty, 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 hill was passed has terminated, to the Governor, with the mayor's cer- tificate 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 concurrently, shall act for such city as to such bill : but the Legislature may provide for the con- currence of the legislative hody in cities of the first class. The Legisla- ture shall provide for a public notice and opportunity for a public hear- ing 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 accepted 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 with- out the acceptance of the city or cities to which it relates, or within such fifteen day® 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. Following this unique method of retaining the means for enactment applying to individual cities without allowing the legislature complete sway over them, Illinois has adopted an amendttnent" requiring that enactments relating to the Chicago chartej and special laws affecting the city must be submitted to a referendum of the municipal voters. Michigan^ more gen- erously stipulates that no local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected. Interesting and important as this method of clearing the atmosphere between legislature and city undoubtedly is, it falls far short of effective home rule. Its effect is merely negative. It blocks legislative tyranny, it makes difficult city control by inimical political factions or selfish and bigoted rural members, it makes unprofitable the consumption of the legislature's time upon frivolous local measures, but it gives the cities no method of obtaining measures that they consider necessary to their prog- "1904, IV, 34. IV, 30. STATE CONSTITUTION-MAKING. 301 ress. This has been obtained only by independence of the legis- lature. The privilege of ruling their destinies without consult- ing the legislature has been acquired by cities in so far as it at present exists, through the constitutionally gi-anted right to frame their own charters, together with the powers, express and implied, accompanying such a rigM. This is what present-day writers consider the most advanced phase of municipal home rule that has been put into practice in the United States. The Missouri constitution of 1875^ was the first to authorize „ 268. Power of the cities of a state to frame their own charters; its popula- cities to 7 X- r- Frame tion requirements were such, however, that it was in effect a Their Own grant of power to St. Louis only.^ Before 1900 only three other states* had granted permission to make use of this plan, but at present thirteen constitutions' authorize it: four of them^ to all cities and the others to a particular city^ or to cities hav- ing more than a specified population.* A few of the states, with- out constitutional provision on the subject, have passed statutes conferring upon cities the charter-making prerogative." The constitutional provisions vary considerably. The most important difference is between those which are self-executing and those which can become effective only after legislative ac- tion. Thus Colorado specifically declares that its home-rule charter clause is self-executing, and Minnesota forbids any city to incorporate under its provision until the legislature shall have prescribed the general limits within which the charter may be framed. For details a few lines have snflflced the constitution-makers in some of the states, whilst in others several finely-printed pages are devoted to home-rule charters. The methods laid down for initiating a movement to frame a charter for a particular city are (1) legislative provision for an election by the citizens, (2) similar provision on the part of the city government, and nx, 16, 17. =Now applies also to Kansas City ; from 1900-1910 applied to St. Joseph. ^Cal., Minn,, Wash. "Ariz., XIII, 2 ; Cal., XI, 8 ; XI, 7^ (applies to counties) ; Colo., XX, 4, 6 ; -Md., XI-A; Mich., VIII, 21; Minn., IV, 36; Mo., IX, 16, 20; Neb., XIa, 2; 0., XVIII, 7 ; Okla., XVIII, 3 ; Ore., XI, 2 ; Tex., XI, 5 ; Wash., XI, 10. «Mlch., Minn., 0., Ore. 'Md. — Baltimore. The provision applies also to counties generally. 82,000— Colo., Okla. ; 3,500— Ariz., Cal. ; 5,000— Neb., Tex. ; 20,000— Wash. ; 100,000— Mo. 'e. g.. La. Results have been Insignificant. 302 STATE COXSTITUTION-MAKIXG. (3) petition for an election by a percentage of from five to twenty-five per cent, of the municipal voters that is mandatory upon government officials. All but three^ of the states specifi- cally entrust the framing of the charter to a board of from thirteen to twenty-one^ citizens — usually freeholders — appointed by the judges of the district court in Minnesota, but elsewhere elected by the voters, sometimes at the same election at which they determine whether or not to authorize a charter' In some of the states the time allowed the board for preparing and pre- senting a scheme of city goviernment is limited, varying from ninety days to six months. On the completion of the charter a copy must usually be filed with a designated official and, fre- quently, published in one or more newspapers. In Ohio the clerk of the municipality must mail a copy to each elector. As a rule, ratification by a majority of those voting thereon is suflScient for the adoption of the charter, but four-sevenths is required in two states* and another" requires the approval of the legislature before the charter shall go into effect; in two states^ it must first be submitted to the governor who "shall approve the same if it shall not be in conflict with the constitu- tion and laws" of the state.'' The very apparent impossibility of the governor's having either the time or the requisite knowl- edge to decide intelligently whether a charter is in conflict with the constitution and laws of the state makes the latter restric- tion equivalent to a simple veto power. In Colorado in case the charter submitted by the board of freeholders is rejected by the people the process of electing a board and submitting a charter to the people must^ be repeated until one is finally adopted. Amendment of the charter is usually provided for, sometimes in very elaborate clauses ; submission by the munici- pal law-makers or upon petition of a stated percentage of the ■ voters is the general rule. ^Mlch., Ore., Tex. =Okla. requires two from each ward. 'In case of an adverse vote on framing a charter, the election of the framers would, of course, be a nullity. *Minn., Mo. (except St. Louis). °Cal. No charter has been rejected. »Arlz., Okla. Likewise In Mich, by statute. 'In Mich., by statute, the charter must be submitted to the governor. 'The same Is expressly permitted In Neb. STATE CONSTITUTION-IIAKING. 303 None of these provisions indicate upon their face any great degree of complexity in the proposition of home rule for cities, but just beneath the surface the simplicity ceases and a perplex- ing conflict of authority between legislature and charter soon becomes manifest. In the first place there arises the question of 269. what powers are conferred upon a city by the simple consti- charter- tutional provision that it may frame its own charter. In the Power. second place is the question of whether the legislature or the fiity shall prevail in case of conflict between the home-rule char- ter and the law of the state.^ The first question asks what specific things are, under pres- ent law, inherently municipal functions and what things must ordinarily be regulated by the state alone. Granting that a city ■cannot in its charter abolish capital punishment or amend the common law as to woman's rights, yet it can surely pass trafflc regulations and dictate building materials with a view to prevent fires, and the query arises just where between these two classes of legislation, in the absence of specific constitutional delimita- tion, the province of the state ends and the province of the city begins. American courts have always construed narrowly any grants of power away from the state itself and consequently the pre- sumption is always against the city in the attempted exercise of untried powers. To take a few concrete instances the courts have declared that the right of a city to frame its own charter does not empower it to create a police court or to annex terri- tory or to regulate the rates charged by privately-owned public ntiUties or to impose upon the occupiers who are not also own- ers the duty of keeping sidewalks in safe repair. On the other band, the home-rule right does authorize the creation of a de- partment of health, the provision for municipal ownership of public utilities, the construction of an opera house, auditorium and moving-picture theatre and the setting aside by the city of its common-law liability for failure to keep streets in repair. Most of the cases which the courts have been called upon to decide have not involved questions of the power of cities to adopt a particular provision but whether it could be maintained ^These questions are comprehensively discussed by Prof. H. L. McBaln, Home Rule for Cities, Proceedings of Academy of Political Science, V, 263. 304 STATE CONSTITUTION-MAKING. if in conflict with a general statute. It may be said to begin with that the constitutions of most of the home-rule states de- clare that the charter shall be subject to the general laws of the state and impose no restrictions upon the enactment of general laws.^ On the other hand, Colorado expressly declares that the charter and ordinances made pursuant thereto as to municipal and local matters shall supersede within the jurisdiction of a city or town any law of the state that conflicts with it.' Ore- gon ordains that its legislature shall not enact, amend or re- peal any charter,* and California that it shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may make and enforce all laws and regulations in respect to municipal affairs, sub- ject only to the restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws.'' Just what "municipal affairs" may include has been a puz- zling question for the courts, and, indeed, every phase of the question of power in making charters presents questions of difficulty that have not as yet been satisfactorily adjudicated. It must be confessed, however, that no court could find easy the task of determining between two provisions seemingly so contradictory as those existing in most of the constitutions, con- ferring the power upon cities to make what presumably were intended to be home-rule charters and at the same time taking away home rule by making the cities unrestrictedly subject to general legislative enactment. The experience of Washington furnishes perhaps the most interesting example. The legislature assumed the authority to enact a law setting forth in detail the precise limits to which cities could go in making their char- ters." The city of Tacoma undertook to regulate its gas rates — a power not specifically conferred by the statute — and the court, notwithstanding the urgent plea that this power was, =Arlz., XIII. 2; Mich., VIII, 21; Minn., IV, 36; Mo., IX, 16, 20, St. Louis; Neb., Xla, 2; OUla., XVIII, 3a; Tex., XI, 5; Wash., XI. 10. See, also, Cal., XI. 8; Colo., XX, 5; Md., XI-A, 8, 4; O., XVIII, 3; Ore., XI. 2. "XX, 6. *XI, 2. Criminal laws and local option are excepted. "XI, 8. «Acts of Washington, 1889-90, p. 215. STATE CONSTITUTION-MAKING. 305 nevertheless, inherent in the city's constitutional prerogative to frame its own charter, dismissed the subject with the pronounce- ment that tbe Jegislature liaving passed a general law upon the particular subject, the power to fix such rates must be found therein, if at all.' "In other words," as Professor McBain says, ' the city's power under a direct constitutional gi-ant of home rule was just as large and just as small as the legislature chose to make it. As- tounding doctrine!' In Minnesota the constitutional authority is express that "■the legislature shall prescribe by law the general limits within which such charter shall be fram.ed'"' — an obligation only par- tially fulfilled, — but in Michigan,^ where similar power is con- ferred, the legislature has set an example by enacting a very elaborate statute minutely governing municipal charter-making. Texas^ has closely followed this example, which manifestly leaves the legislature with ample power "to reduce the home- rule right to a hollow shell.'" The legislatures of Oklahoma and Arizona apparently appreciative of this paradox have passed laws declaring that in case of conflict between a city-made char- ter and a statute relating to cities, the provisions of the char- ter shall prevail and be in full force, and shall .be as a repeal or suspension of the state law to the extent of the conflict, — an enactment that puts beyond question the fact that a statue passed for the purpose of regulating cities has no application to those which have adopted home-rule charters. The enormous amount of litigation which in the absence of constitutional or legislative pronouncement on this subject, has flooded the courts of Missouri, places it in striking contrast to the last-named states. At the outset, according to Professor McBain,* the courts seem to have been "inclined to assert that ^Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash., 288 (1896). "Proceedings, op. cit., 16. =IV, 36. iVIII, 21. Must be by a general law. "XI, 5. Where the charter must not only be consistent with "general laws enacted by the legislature" but "subject to such limitations as may be prescribed by the legislature," query, would the provisions of an enabling act be void if in conflict with a "general" law? ^McBain, Proceedings, op. cit., 34. ^Proceedings, op. cit., 24. 20 306 STATE CONSTITUTION-MAKING. a home-rule charter was subordinate in every respect' to any law that the legislature might enact." Eventually, however, they came to see that such a coastruction trausformed the constitutional right of home rule into a rapidly disappearing shadow. In general effect, therefore, and not without much hesitation and many excursions into by-ways of argument 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. The evolution of judicial thought in Missouri is probably typical of the general development of popular ideas upon the subject of home rule for cities. Only gradually has appeared the conception of home rule as a constitutional right with which, in its recognized limits, the legislature can do more to interfere than with recognized rights of individuals, like due process of law and trial by jury. It is evident that, under general constitutional provisions granting to cities the power to frame their own charters, there has resulted no nice balance of prerogative between city and legislature. The distinct subordination of the former to the latter has continued. In addition, however, "to the declarations of Colorado and Oregon, already noted, and the gradual develop- ment of legislative and judicial thought upon the subject, sev- eral of the constitutions enumerate certain powers which may or must be included in home-rule charters and so are declared to belong to cities.^ Among the more interesting of these are the Colorado mandate that the charter shall provide the initia- tive and referendum for ordinances passed by the city council and the optional powers granted to the cities of California, the only state in which the specific enumeration has undergone any notable development. Among them are — (1) the establishment and regulation of municipal courts; (2) to determine the man- ner of election, terms, qualifications and compensation of mem- bers of the board of education; (3) provision for boards of police commissioners and for the government of the municipal "Cal., XI, 6, 8, Syi, XX, 13; Colo., XX. 2, 3, 4, 5 : Minn.. IV, 3G : Mo., IX, 17, 20, 23, St. Louis; Neb., XIa, 3, 4; Ore., IV, la; Tox., XI, 5. See, also, 0., XVIII, 3. STATE CONSTITUTION-MAKING. 307 police force; (4) full control over municipal elections and elec- tion officers; plenary authority in regard to the terms and compensation of both appointed and elected officials and em- ployes and: for their recall and removal and for their assistants ; (5) authorization of the separation of any city having a popu- lation of 50,000 from the county in which it is situated and its formation into a consolidated city and county; (6) the annexa- tion to any consolidated city and county of contiguous territory under certain specified circumstances. The enumeration of cer- tain powers must not be construed to limit the general grant of powers under the charter-making right. This practice of enumeration immediately and very pointedly ^ ^'^^^^ raises the question of what powers may be declared to belong S'^'q^J^P to cities without infringing upon those prerogatives for the exercise of which a prior right in the state government may be necessary to protect the interests of the state as a whole against its individual parts. Constitutional specification is clearly a means of obtaining home-rule rights that the courts are bound to respect and follow with the utmost strictness, and while its use has not as yet been attended with any untoward experience, there is certainly need — if the opinions of commentators are worth regarding — for the state to guard with great diligence the superior authority of its own government in such matters as taxation and public debts, control of elections and of the police, and, where several cities are situated near each other, the purely municipal concerns, like water-supply and sewage disposal, in which one should not be allowed to prejudice the interests of the others. Municipal history furnishes too many instances of graft and police corruption, of excessive tax rates and borrowing to bankruptcy to make advisable as yet the utter withdrawal of the paternal arm of state interference. On the other hand, how- ever, it may well be claimed that with hOme rule there comes an increase of civic education and of civic consciousness and re- sponsibility, together with a divorcement of municipal from ex- ternal politics, that may be trusted to develop in cities greater ability to stand alone. Whatever control the state retains may probably be exer- cised in some other way than through its legislature. The crea- 308 STATE CONSTITUTION-MAKING. Aamhi ^^^^ °^ state boards of elections, civil service and public utilities trative commissions and the employment of state administrative con- trol over municipal police and sanitary departments in a few of the states suggests the extension of this method of super- vision over whaitever branches of municipal activity the state may consider too important to the welfare of the whole to be left unreservedly to the direction of the people of one of its parts. "The substitution of administrative for legislative super- vision," says Professor Munro," that is to say, of supervision by responsible boards of trained men rather than by the desultory action of legislatures — would be an influential factor in improving the relations of the city to the state, and would thereby have a beneficial reaction upon the affairs of the city itself. A sharp distinction ought to be made, however, between state administra- tive supervision and direct state control of municipal activities. The latter, especially when the city is forced to pay the bills, is never popular and cannot be looked upon as affording a permanent solution of local problems. Bearing in mind this warning, it is helpful to note for a 272. moment the continental European form of home rule, the prin- Home Rule ^ . ' ^ in Europe, ciple at the bottom of which, according to President Good'now,'^ finds expression in the rule of law that the municipal corporation is not an authority of enumerated powers, but rather one of general powers, and that, in order to show the authorization to exercise a specific power, all that the municipal corporation shall be obliged to do is to prove that it has not been forbidden to act by the legislature of the state, either directly, or indirectly through the grant of the power to some other authority. This alone would endanger the unity of the state governmental organization, but legislative decentralization is accompanied by administrative centralization and the action of cities, whether affecting the whole state or merely themselves is checked by state officials. That is to say, the city is given prima facie freedom, subject to veto of specific actions by the state authorities in case of misuse of powers. President Goodnow concludes that "Oovernment of American Cities, 76. ^MuMcipal Home Rule, an address before the Civic Conference, Portland, Ore., Aug. 18, 1905 — 21 Political Science Quarterly, 77 (84, seq.). STATE CONSTITUTION-MAKING. 309 the continental method of assuring to cities a reasonable home rule is to be preferred, not only because it would appear to afford them greater freedom of action, but also because the control over those functions of government attended to by city authorities vifhich is exercised by the state is, under the continental method, less liable to be influenced by partisan political considerations. Profiting by the European example of administration, Mr. „273. -r^ Home Eule Eobert S. Bmkerd, Secretary of the Cdty Club of New York, and the has taken the position that stable home rule is not a matter of Powers of a City. constitutional provisions allowing cities to control the organiza- tion of their government, but of the powers which all cities shall share in common with all other 'cities. These should be defined by the legislature for all cities alike,* as in the European countries. "The West," he says, 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 ibeen working on this problem recently have put our whole emphasis upon the fact that home rule is essentially a question of the breadth and sufflciency of the legal powers with which a municipal corporation is clothed." Constitutional change "so that instead of everything being con- strued as against the probability of a city having power to do anything," it should be presumed in the first place to possess the power it wants to make use of, is recommended by Mr. Binkerd, as is also complete abolition of special laws dealing with cities and provision to clarify the question of precisely what is a delegation of the law making power by the legislature. Similarly Mr. Laurence A. Tanzer, of the Municipal Govern- ment Association,^ believes that 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. . . . This broad general grant of ix)wers should operate to reverse the pre- sumption of Jaw 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 'Proceedings of Academy of Political Science, V, 333-.5. "Acts of N. Y., 1913, ch. 247, partially accomplishes the club's Ideas. '^Proceedings of Academy of Political Science, V, 306. 310 STATE CONSTITUTION-MAKING. denied it by the constitution itself or by legislation validly enacted under its provisions. This general grant of powers, he continues, should be in these words, — Bacli city and eacb village shall have full power to regulate matters relating to its own property, affairs and government, subject to this con- stitution and the laws of the state. 274. Suggestions for Consti- tutional Provisions. 275. New Yorls Convention Proposals. Interesting and highly significant as these suggestions un- doubtedly are, it nevertheless remains true that current discus- sion of the problem of home rule for cities centers about the power of the city to frame its own charter and so to some care- ful suggestions to constitutional conventions seeking the best obtainable results from this method, a few concluding para- graphs may well be devoted. Eecognizing how preferable it is for the convention to settle as many points as possible in order not to throw upon the courts what are properly its burdens, Professor McBain^ advises (1) that grants of power to cities ^all be specific and not merely general; (2) that whatever the home-rule provision, it shall be self-executing; (3) that the char- ter shall not be required to be submitted to the governor or leg- islature for approval or rejection in toto; (4) that especial pains should be taken to examine all other provisions of the con- stitution with particular reference to the home-rule rights con- ferred; (5) 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 refer- ence to this possible and highly probable situation. In partial confonnity with this counsel is the latest pro- nouncement of a constitutional convention — ^^that of New York in 1915.' After providing that cities shall have exclusive power to manage, regulate and control their "property, affairs and mu- nicipal government," subject to general laws of the state, its proposed instrument continues, — 'Proceedings, op. clt., 298, seq. "Proposed Const., XV, esp. sec. 3. See, also, supra, p. 95. STATE CONSTITUTION-MAKING. 311 Such power shall be deemed to Include among others : (a) The power to organize and manage all departments, bureaus, or other divisions of its municipal government and to regulate the powers, duties, qualifications, mode of selection, ■ number, terms of office, com- pensation and method of removal of all city officers and employees, in- cluding all police and health officers and employees paid toy the city, and of all non-judicial officers and employees attached to courts not of record, and to regulate the compensation of all officers not chosen by the electors and of all employees of counties situated wholly within a city except assistants and employees of district attorneys and except officers and employees of courts of record. (b) The power, as hereinafter provided, to revise or enact amend- ments to its charter in relation to its property, affairs or municipal gov- ernment and to enact amendments to any local or special law in rela- tion thereto. A city may adopt a revised charter or enact amendments to its charter or any existing special or local law ii( relation to any mat- ter of state concern the management, regulation and control of which shall have been delegated to the city by law, until and unless the leg- islature . . . shall enact a law inconsistent therewith. The term "charter" is declared for the purpose of this article to include any gen- eral city law enacted for the cities of one class in so far as it applies to such city. The legislative body of a city is then empowered to enact amendments, subject to approval by municipal administrative oificers ; furthermore, every amendment which changes the framework of the government of the city or modifies restrictions as to issuing bonds or contracting debts shall be submitted to the legislature, but shall take effect as law sixty days after such submission unless In the meantime the legislature shall disapprove the same by joint resolution. Kvery eighth year every city is empowered, either at a gen- eral or a special election to ^ submit to the electors thereof, the question "shall there be'a commission to revise the charter of the city?" and may at the same time choose seven commissioners to revise the city charter in case the question be answered in the affirmative. After making especial provisions for New York City, the pro- posed constitution enacts that if the revision is ratified by the 312 STATE CONSTITUTION-MAKING. electorate, it must toe suibmitted to the legislature and will be- come operative if that body fails to disapprove it. Apparently nothing of an essential character was added by the New York convention to the home-rule principles that were already familiar. Finally mention should be made of the recent suggestion that great metropolitan centers shall become separate states and in this way achieve completely and once for all a perfect degree of home rule.* Tennessee Note. — Home rule for cities is a tiling unknown in Ten- nessee. On the other hand, cities are held to be undier the absolute con- trol of the legislature.' The constitution makes no mention of them except to authorize the legislature to vest jurisdiction in "corporation courts" and to regulate the finances of incorporated towns and authorize for them additional justices of the peace." The clause providing that no "corporation'" shall be created by special laws is held not to apply to municipal corporations.' In practice every city of any importance has a charter granted by special enactment and usually amended at every session of the legislature. Provision has been made, however, under general laws, whereby any part of a county not already incorporated may become so on petition of "any number of legal voters over fourteen" ratified by two-thirds of the legal voters of the territory involved.' ■■Brooks, R. C, Metropolitan Free Cities, 30 Political Science Quarterly, 222. 'Luehrman v. Taxing Diet., 70 Tenu., 425. »VI, 1 ; II, 29 ; VI, 15. ■'Williams v. Nashville, 89 Tenn., 487. "Shannon's Code, 1881, seq.; concerning taxing districts, see 1998, seq. STATE CONSTITUTION-IIAKIXG. 313 CHAPTER XIX. Types op City Goveenmext.^ A municipal charter in whatsoever manner framed, bears 276. The City the same relation to the city that a constitution bears to the charter, state. It is the city's organic law, its grant of governmental authority from the people of the state or their representatives in the legislature; and it determinesi the type of governmental organization which the city must accept. Notwithstanding the fact, therefore, that only two constitutions^ in any way dictate features of the framework of government which the sub-con- stitutions or city charters must set up, a study of the state constitutions may well include brief mention of the chief dif- ferences between the common types of municipal government. These are known respectively as the council, the commission and the city manager plans of municipal government. The constitutions of the states are copious, if not generous, ^^'''^■ in their attention to cities, and the legislatures' freedom of f^<>gst|t"ti<'°» action in dealing with them, irrespective of home-rule provi- Government, sions, is consequently not a little abridged. Detailed mandates concerning the city oflScers,^ notably such items as their election, qualifications and removal, concerning the city finances, espe- cially minute restrictions relating to municipal indebtedness,* and concerning franchises and other matters relating to public utilities occur with great frequency. But they by no means exhaust the varied and miscellaneous provisions which peculiar experience or the whims of constitution-makers have dictated. The last-mentioned clauses include, among others, prohibitions Mjreneral References: Munro, W. B., Government of American Cities; Gov- ernment of European Cities; Falrlie, Jno. A., Municipal Administration j Com- mission Government for Cities, Annals of the American Academy of Political and Social Science, 38, pp. 671. seq. (1911) : Robbins, E. Clyde, (Compiler) Commimssion Plan of Municipal Government ; Bradford, E. S.. Commission Gov- ernment in American Cities; Toulmin, H. A., Jr., The City Manager: A New Profession. 2Md., Va. =An interesting, though not typical, example is the Kentucky (160) clause forbidding the chief executive officer and officers whose chief duty is the col- lection and holding of public moneys to be eligible for a succeeding term in cities of the first and second class. *By far the most numerous of the constitutional restrictions, see, e. g.j Ala., IV, 94, XII, 222, 225, 226; Cal., XI, 13}4, 18. 314 STATE CONSTITUTION-MAKING. of stockholding by cities in private corporations,' and pro- visions relating to franchises" and to the regulation '^ and owner- ship' of public utilities." Even the briefest mention of them is beyond the scope of these pages. The Maryland constitution/ however, by requiring for Bal- timore, and that of Virginia,^ by requiring for cities generally, the continuation of the council as the legislative organ of the city, touch directly upon the subject of the present chapter and may well introduce its discussion of the council plan of city government. Both constitutions require that the council shall consist of two houses, but Virginia authorizes the general assembly to permit one house in cities of ten thousand inhabi- tants and under and also to establish, with the consent of the city concerned, other forms of governmental organization. Con- siderable detail relative to various, associated matters is given, but nothing else that is unique among the constitutions. Until within the last decade, municipal government in the Th^^Mayor United States was almost without exception conducted by a and Council, mayor and council. In early days the council was the only gov- erning body : the mayor, according to the English system copied in the colonies, was simply the presiding officer, "a chief col- league among the councilmen."' Usually he was chosen by them »e. g., Ark., XII, 5 ; Miss., VII, 183 ; Tenn,, II, 29 ; Va., XVIII, 185. »e. g., Ky., 163, 164 ; Mich., VIII, 25, 28. 'Ariz., XV, 3 ; Cal., XII, 23 ; XIV, 1 ; Ky., 199 ; Okla., IX, 18 ; Va., VIII, 125 ; XII, 156b. See, also, Cal., XI, 19; Okla., XVIII, 7. =Cal., XII, 23a ; Colo., XX, 1 ; Mich., VIII, 23, 25 ; S. C, VIII, 5 ; Va., VIII, 125. The Michigan authorization, to be subject to three-flfths vote ot electors. Is as follows : "Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hos- pitals, almshouses and all works which Involve the public health or safety." The same constitution also provides (VIII, 22) that "subject to the provi- sions 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 transportation to the municipality and the inhabitants thereof ; and may also sell and deliver water, beat, power and light without its corporate limits to an amount not to exceed twenty-flve per cent, of that furnished by it within the corporate limits ; and may operate transportation lines without the municipality within such lines as may be prescribed by law : Provided, That the right to own or operate transportation facilities shall not extend to any city or village of less than twenty-flve thousand inhabitants." See, also, — Ariz., XIII, 5; Cal., XI, 19; 0., XVIII, 4. 5, 6, 14; Okla., XVIII, 6. Concerning water supply, — La., 313, 314, 316 ; N. Y., VII, 7 ; Utah, XI, 6 : Wyo., XIII, 5. "For discussion of almost every phase of the relationship between cities and public utilities, see the Proceedings ot the Conference of American Mayors on PubUc Polioies as to Municipal Utilities, Annals of American Academy of Po- litical and Social Science, LVII, Jan., 1915. ^XI, 2, 3, 4, 5, 8, 9 ; XI-A, 3. =VIII, 117, 121, 122, 123. See, also, Ky., 160. 'Munro, American Cities, 209. STATE CONSTITUTION-MAKING. 315 from tlieir own number or appointed by tbe governor; only irregularly, in the smaller places, was he chosen by the people. Usually councillors were popularly elected, but in a few the council was self -perpetuating. Its duties were legislative, execu- tive and judicial, of which the last were, curiously enough, most important. After the revolution and the adoption of the federal con- stitution, the influence of the national organization with its bicameral legislature and its principle of separated powers be- gan to make itself felt in city charters as well as state consti- tutions. A council of two houses became the general rule. The mayor gradually came to be a distinct organ of government, and, like the councillors, a popularly-elected official. As early as 1796 the mayor of Baltimore was given the veto power and by the middle of the nineteenth century the mayor's power had gi'own so as fairly to balance that of the council. The latter, however, continued its legislative functions and, through its committees, directed the administration of the city. It had grown also in power and was at the summit of its influence, so that "counciliar supremacy" was typical of the times. Then came the administrative breakdown caused by the increasing complexity of municipal affairs and the declining caliber of the councilmen. The state legislatures intervened; popularly elected — or even state-appointed — administrative officers were introduced and the mayor forged ahead as the most important factor in municipal government. The degree of his predomi- nance, however, varied greatly among the individual cities. The appointment of administrative officers has gradually been left more and more to the mayor and he has come to be the recog- nized administrative manager of municipal affairs. Meanwhile, the council in the majority of the cities has become unicameral again, but this simplification appears to have had little if any eltect upon the proportion of governmental power which it ex- ercises. Councilmen are usually elected to represent individual wards. Tavo large cities, Boston and San Francisco, however, have general tickets and a combination of the two methods is sometimes used when the council is bicameral. As a type of government the mayor and council plan must be considered simply as a reflex of the political organization of 316 STATE CONSTITUTION-MAKING. 279. Early Com- mission Gov- ernments. 280. Galveston and Des Moines. the states and the nation. The advantages claimed for the sys- tem of checks and balances, namely, that it prevents high-hand- edness in the formation and execution of policy are obviously of diminished importance in a government whose policies are practically all determined by organic law or popular decision upon individual questions. This is the case in the cities of today and their governmental functions are, consequently, character- istically administrative in nature. Born of imitation, not of reason or experience, the mayor and council governments have signally broken down in several in- stances of municipal crisis. Thus in New Orlealis, as a result of the war and reconstruction, municipal affairs became so in- tolerable that, in 1870, their administration T^as placed under the control of a mayor and seven commissioners,* and remained so until 1882, when the council plan was readopted.^ Mobile and Selma, Alabama passed through a similar expei'ience a little later. In 1879 Memphis, as a result of a succession of yellow fever epidemics, had become impoverished and greatly depopulated. The number of its inhabitants had', indeed, declined some seven- teen per cent, in the previous decade, and the city had accumu- lated a debt equal to nearly one-third of the value of its taxable property. In place of the existing municipal corporation, the taxing district of Shelby County was created and its govern- ment entrusted to a board of public works consisting of five members and to a governing council of three." The latter man- aged the affairs of the city until 1891. Sanitary conditions im- proved, a new water supply was obtained, streets were repaved and population nearly doubled during the next ten years. Never- theless, like its predecessors, this instance of commission gov- ernment proved ahead of its time and did not recommend itself for permanent adoption. The Galveston commission government of 1901, however, which was formed to restore the city from the ravage of the tidal wave disaster of the previous year, inaugurated a move- ment that has, during the last few years, established a new type ■"This, It should be noted, was several years before Congress established com- mission government in the District oC Columbia (1878). "Scroggs, Wm. 0., Commission Government in the South, Annals, Vol. 38, pp. 682, seq. "Acts o£ Tenn., 1879, oh. XI. STATE CONSTITUTION-MAKING. 317 of American city government. The new system concentrates in the hands of a small board of oflScials — usually five — all munici- pal powers and functions and depends upon the ease and in- formality with which the members of a small body can work harmoniously and be held responsible for their actions, to fur- nish effective and at the same time popular government. The Galveston commission government charter, though in- tended as a temporary remedy, resulted in such an immense im- provement over the old regime that the city determined to con- tinue under it permanently. It was quickly followed by similar charters in Houston and, after a few years, in other cities, both in and outside Texas. In 1908 commission government was es- tablished in Des Moines under a charter^ which has since served as a model for this manner of governing cities. The commission or "council" provided for under the Des Moines plan consists of a mayor and four councillors, elected by the voters of the city at large for two-year terms. The mayor, by terms of the charter, is also head of the department of public affairs and, by majority vote of the council, each of the council- lors is placed at the head of one of the other departments, — ac- counts and finances, public safety, istreets and public improve- ments, and parks and public property. Civil service examina- tion is authorized for the employment of the officials' and em- ployes of the various departments. In all of these provisions the Des Moines and Galveston types are essentially the same. The Des Moines contribution lies in its adoption, as methods of popular control over the centralized power wielded by the commission of the initiative, referendum and recall, and nomi- nation by general non-partisan primary. All important fran- chises must be submitted to popular vote before going into effect." 281. Commission government has spread with phenomenal rapid- Y2^\- ity so that at present several hundred^ cities — ^mostly of less than commission •' r V GoTernment. 'Laws of la., 1907, p. 48. For amendments, see, ih., 1907, 53-63 ; 1911, 37-40. The full text of the original charter is printed by B. S. Bradford ; Commission Government in American Cities (1911), pp. 312, seq. See, also, C. A. Beard: Digest of Sliort Ballot Charters (1911), which includes the more important of the early commission charters. 'For an Iowa account of commission government, see B. F. Shambaugh : Commission Government in Iowa: the Des Moines Plan, printed by the State Historical Society, 1912. 'Oct. 1, 1915, — 357, excluding city managed cities, Washington, D. C, and St. Paul, Minn. In Kan. alone there are 40. 318 STATE CONSTITUTION-MAKING. 282. Theory of Commission Government. 100,000 population, but including Buffalo with .some 460,000 people, — have adopted it: few electorates have failed to vote favorably upon the question when presented to them and, ex- cepting Denver, in no important instance has a commission city returned to the old type of mayor and council government. The underlying principle of the commission plan lies in the fact that the government of a city is chieiiy a matter of routine administration, the successful operation of which requires merely business-like methods. Rarely do questions of policy arise — such as legislatures are expected to debate and weigh with care — and when they do they are of slight moment and of such simplicity that the people may intelligently vote upon them directly or entrust them to the good sense of administrative offi- cers. The essential requisite of a satisfactory city government is, therefore, administrative efficiency, and administrative effi- ciency is best obtainable through a small body of persons who give their entire time to the work and are not hampered by checks and "red tape." A city commission is usually given a free hand and encouraged to act, but the people retain, through the initiative, referendum and recall, a method of preventing their action from becoming effective should it prove unpopular. "It has," according to Mr. Oswald Eyan,^ always been recognized in American government that where responsi- bility is centralized there is no danger of a subversion of democratic institutions. The New England town-meeting system, with its concentra- tion of all important powers in a small board is essentially similar in this respect to the commission plan, and the town-meeting plan has been universally admitted to be the most perfect form of democracy ever devised.' 283. The City Manager. Most of the arguments in favor of centralizing the govern- mental powers of a city in the hands of five men applies with equal or greater force to such centralization in the hands of a single individual. Furthermore, it is probable that in small cities one man — ^preferably one with ample knowledge of engi- neering — can easily manage all of the municipal functions and avoid the waste and friction which a conflict of ideas concern- 'Oommiasion Plan of City Government, American PoUtieal Science Review, V, 38 (51), 1911. 'It should be remembered, however, as Mr. Eyan says, that the town meeting, not the selectmen, appropriates money for town expenses. STATE CONSTITUTION-MAKING. 319 ing unimportant matters entails. This notion has found prac- tical expression in what is known as the City Manager plan of municipal government. This plan provides for a council or commission to elect the manager but devolves upon him most of the duties of government. In 1908 the governing authorities of the little city of Staun- ton,* Virginia, which requires in its constitution that all cities shall be governed by a mayor and council, decided that their system of administration could be improved by employing a municipal manager — a single individual to be continuously em- ployed in looking after the administration of the town's busi- ness. Accordingly, under authority of the law^ permit- ting a city council to establish such ofSces as might be neces- sary properly to conduct the municipal affairs, the office of General Manager was created." In 1912 a charter providing for a city manager was adopted on its first incorporation, by Sumter, South Carolina. The next year the city of Dayton, Ohio,'' following the devastating spring floods of that year, framed a home-rule charter under which the voters elect five commissioners who serve for four-year terms and have the function of appointing, in addition to a clerk and a civil service commission, a city manager for an indefinite term, but subject to removal by the commission at its pleasure, at an annual salary of .|12,500.' To this manager is left the control of the city : he has absolute power to appoint and remove the Directors of Public Service, Public Welfare, Public Safety and Finance, as well as the city attorney, purchasing agent, health officer, treasurer, accountant and chiefs of the police and fire departments, and is the fountain and head of administrative policy in as true a sense as is the general manager of any private corporation. This indicates, indeed, the theory upon which rests the City Manager plan. It emphasizes permanent tenure of office, con- n0,604 people (1910). =Va. Code, see. 1038. 'Municipal Government Administered by a General Manager: The Staunton Plan, — by Jno. Curley, President of the Common Council, Annals of American Academy of Pol. and Soc. Science, 38, 877 (1911). For an account of the so-called Lockport Proposal, see Toulmin, op. cit., 19, seg. '116,577 population (1910). astauutou pays $2,500 ; Sumter, $3,300 ; Springfield, $6,000. In Dayton the commissioners receive $1,200 ; the one of them who Is mayor, $1,800. 820 STATE CONSTITUTION-MAKING. tinuity of policy and the highest obtainable efQcency and eco- nomy of administration. It makes them possible, indeed; but of course integrity of character and purpose on the part of the commissioners and manager is sine qua non to their attainment. It breaks completely with American political theory and carries to its climax the idea that a city is to be administered, not gov- erned. At present twenty-flve" cities have accepted this latest de- velopment in American municipal politics. The arguments for and against each of the types of city government mentioned are varied, but beyond the scope of the present treatment. Suflflce it to say that the mayor and council plan appears to have reached the culmination of its progress. In certain of the larger cities the council continues to dominate the government, in others the form only is of the old type : the fact is government by administrative departments and the mayor.^ The popular favor with which the city manager has been received marks him a thorough-going rival of the original commission form of gov- ernment. The fact that the addition of the manager, according to the Dayton plan, separates the policy-determining and policy-execut- ing functions of government is worthy of especial attention. Popular election is confined to the commissioners who shape policies ; the expert to execute them is appointed. — The city manager plan . . . places the commissioner In a position which his previous business experience has fitted him for, namely, ad- vice on business problems. The execution is left to an expert who is highly trained in that field of endeavor and wholly competent to cope with it. The spheres of action of the adviser and a'dministrator are wholly distinct and separate." =Oct. 1, 1915. Not Including Staunton. 'Philadelphia and New York may be tlius contrasted. ^Toulmin, op. cit., 53. The model home rule charter of the National Mu- nicipal League provides for a city council with full powers except as otherwise provided "to exercise all the powers conferred upon the city." The council must appoint a civil service board and the city manager who must be the "chief executive officer of the city" and who must appoint and remove the heads of departments. He must also, among other prescribed duties, "prepare and submit to tlie council the annual budget after receiving estimates made by the directors of the departments." The initiative, referendum and recall and nominations by petition are provided for. The creation of a city planning board is made manda- tory. Appendices give sections for adopting the Hare system of proportional representation and a preferential ballot. — A Model CUy Charter and Municipal Home Rule as prepared 6j/ the Committee on Municipal Program of the National Municipal League (Final edition, Mar. 15, 1016). STATE CONSTiTUTION-MAKIXG. 321 In marked contrast to the governmental evolution of Amer- _ ^si- „„ o European ican cities, with its emphasis upon form of governmental organi- "^j**^*^"^" zation, is the continuance in Europe of a system closely resem- bling the old mayor and council plan, which, however, as is well known, results in better municipal government than America has been able to attain. Notwithstanding the fact that German cities have grown of late with even greater rapidity than has characterized the cities of the United States, and the cities in other countries have been by no means at a standstill, the prob- lem of municipal government appears to be measurably solved through rigid administrative supervision on the part of the cen- tral government. In England, especially, municipal good govern- ment is assisted through its attraction for high class men fur- nished by the considerable degree of prestige attaching to mu- nicipal oflSce holding. As already noted, centralized adminis- trative control leaves the cities with a greater degree of autom- ony in municipal concerns than is permitted the cities on this side the Atlantic. Tennessee Note. — The constitution of Tennessee contains no direc- tions concerning the government of cities or their incorporation. A ma- jority of the incorporated places still retain the types of government in force before the present-day movement for city commissions was started, but all of those having 10.000 people and over* now have commission gov- ernment. It may, therefore, be considered the prevailing type in Tennessee. Memiphiis began the movement in 1907.' Its charter contains no provisions for initiative, referendum or recall. All three are, however, provided by the Jackson charter of 1915." For a number of other cities, — Bristol, Chattanooga, Hartsville, La Follette, Knoxville, Lebanon, Lewisburg, Murfreesboro, Nashville, Smyrna, South Pittsburg and Springfield, — the legislature has provided commission government charters. No Tennes- see city has adopted the city manager plan." ^Memphis (131,105) ; Nashville (110,364) ; Chattanooga (44,604) ; Knoxville (36,346) ; and Jackson (15,779). *Acts of 1907, ch. 184. Concerning the first commission government admin- istration, see the News-Scimitar, .Ian. 2, 1910 ; Woodruff, C. E., City Qovernment ty Commission, pp. 265, seq. See also, charter of Greeneville, 1903. Acts of 1903, ch. 563. 'Private Acts of 1915, ch. 168. "For brief account of commission government in Knoxville at beginning of 19th century, see Knoxville Sentinel, May 17, 1916. 21 322 STATE CONSTITUTION-MAKING. CHAPTER XX. City Planning.^ 285. Municipal Awakening. 286. Nature of City Planning. The cities of the world have not, as a rule, been brought up "by hand." American cities, especially, have for the most part merely "tumbled up" without guidance and their lusty growth under the stimulus of our era of industrial expansion has brought them into an adolescence of awkward formlessness — of which they are beginning to be acutely and painfully con- scious. This embarrassing self-contemplation on the part of cities is bringing about a realization of the need of educational and formative processes that is finding expression, almost too rapidly, perhaps,^ in legislation establishing city planning com- missions. These commissions study the physical features of cities in connection with their social and economic require- ments, with a view to recommending — or even enforcing — plans with the object not only of acquiring such property as may be desirable for public purposes, but of so arranging the use of "the public property that the land which is privately owned may be put to the be»st usefulness."' They provide an adequate public authority to think in terms not of individuals but of the city as a whole and to plan accordingly. City Planning is justified by the assumption that, in the long run, what is best for all is best for each; it is a manifestation of the ever-broadening realization that cities are not farmer's neighborhoods, where individualism may be rampant with in- jury to no one except the individual, but highly socialized com- munities where the welfare of everyone is intimately connected with that of everyone else. New standards of cooperation must 'General References : Robinson, C. M., City Planning : Nolen, Jno., City Plan- ning; ShurtlefE, Flavel (in collaboration with F. L, Olmstead). Carrying Out the City Plan; Handbook of City Planning (National Municipal League) ; Cush- man, R. B., City Planning and the Courts (Proceedings of Second Annual Con- vention of the Illinois Municipal League, p. 83. 1915) ; City Planning, pub- lished quarterly as the official orgian of National Conference on City Plan- ning; also Proceedings of the Annual Conferences of the same and its Bulletins Issued from time to time. ^So thlnlss the editor of City Planning. Foreword of first issue (Mar., 1915). Such legislation is already found in about one-third of the states, ib., I, 4, p. 9. 'Robinson, op. clt., 299, indirectly quoting Lawson Purdy. STATE CONSTITUTION-MAKING. 323 be established to meet its ends and old "rights'' discarded when they delay those ends. In short, city planning means that the city is to have an individuality and significance of its own and is to endeavor to regTilate its growth and development just as carefully as an individual would plan out and develop his pri- vate garden or estate. It involves, according to the secretary of the New York City Plan Committee,* (1) the creation, adoption and revision of a tentative comprehensive plan for the physical development of the city and (2) the correlation of particular Improvements, by whatever authority originated, with the requirements of the comprehensive plan. The comprehensive tentative plan should include at least the following : streets ; parks ; playgrounds ; transit ; grouping of public buildings ; railroads ; waterways ; terminals ; markets, and the districting of the city for the purpose of regulating the height, area and use of buildings. "The typical conditions which are to be corrected or fore- stalled by scientific planning," says Professor Eobinson, include, specifically, those of streets filled with a traffic which they are unable to carry with safety and speed ; are the housing of the iwor amid surroundings injurious to moral, physical, and civic well-being ; are the loss of opportunities for free and healthful recreation, on the part of adults as well as of children ; are the lessening of industrial and commercial efficiency ; the inconvenient location and undignified crowding of puhlic buildings ; the higher cost of corrective as compared with preventive measures, and an economic waste resulting from instability in the char- acter of neighbourhoods. To do away with such conditions as thesa is the high purpose of the replanning of cities and towns, or of their careful planning at the start, and of a platting of their outlying sections which deals with those sections not as isolated units hut as parts of a whole." The fundamental requisite for carrying out a city plan, once jj^fj^m it has been underfaken and tentatively adopted, is the control Domain, by the city of the land which constitutes its area. The power of eminent domain," however, is universally restricted by the state constitutions and its exercise is always carefully scruti- nized by the courts. %^- *Mv. Robt. H. Whitten, — The Conatitution and Powers of a City Planning Authority, City Planning, I, 2. ''Eobinson, op. cit., 4. "See, as to the nature of eminent domain, Clack v. White, 2 Swan. (Tenn.), 540. 324 STATE CONSTITUTION-MAKING. Of these restrictions the most important are contained in clauses, found in the constitutions of the United States and of every state, to the effect that no person's property shall be taken, or applied to public use, without just compensation — a provi- sion which in three states' includes personal service also. It is universally held that private property cannot be condemned except for a public purpose.' Over against these limitations upon the city's control over Poifce' private property is the police power which, like eminent domain, Power. the state shares with its cities. Under the police power a use of land by private persons in a way definitely subversive to pub- lic health, safety and morals, and to some extent, public con- venience and comfort, also, may be prevented as a nuisance; the question of compensation does not enter in." Insofar as its right of eminent domain is not taken away, the city's power to take title to any land — and consequently to use it as it pleases in carrying out the city plan — ^is unimpaired; insofar as its police power may be extended to particular uses of property the city can control it in accordance with its desires and so in furtherance of whatever plan it may have adopted. In executing their plans, however, cities have found both their eminent domain and police power privileges, as they at present exist, not sufficiently broad to permit the accomplishment of even genuinely needed', much less merely desired, ends. They have found themselves cramped by constitution and by court decision in not a few of their methods when they have sought so to arrange their streets, protect their parks and improve their housing conditions as to achieve the maximum civic efficiency and the highest individual welfare of the citizens. Fortunately the law as well as the thoughts of the plannei's is subject to evolution and is gradually altered to meet the changing wishes of the people. 'Ind., Ore., Tenn. 'See Lewis, Eminent Domain, 3d Ed., spc. 2ri00. Some constitutions authorize ^ condemnation for wliat would otherwise be a private use. as for private roads, Wm or that drains may be constructed across others' land, — e. g.. Miss., IV, 110 ; Fla., XVI, 28. In Mich. (XIII, 4), private property may be taken for the use of the state university. Private corporations, as railroad companies, may he authorized by the legis- lature to condemn property for the "public" use of their building a railroad. "Ernest Freund, The Police Poircr, sec. ollfE, discusses the differences be- tween the police power and eminent domain, citing cases. STATE CONSTITUTION-MAKING. 325 Some elements of a city's plan may of course be achieved (^f^^- merely by the more perfect exercise of its powers to control its ^id^the^ own previously acquired property. In granting franchises forCoit.™i °i the use of its streets it may make what stipulations it pleases Property, relating to the esthetic character of posts, cars and other things which will appear upon them, and, since it cannot contract away its police power,^ it may control, in the interest of health, safety and morals of the community, the use of the franchise, irre- spective of the terms of its grant.^ Furthermore, it may exclude advertising from its streets and parks' and from public vehicles traversing them* and business traflSc from its boulevards; and it may convert business streets into pleasure drives.'^ It may refuse to accept streets and parks laid out by land companies in defiance of its plans, or can even require them to follow those plans." In Pennsylvania a city may require a house 'built with- in the lines of streets that have been established on the official city plan to be removed by the owner without compensation when the street is constructed.'' The city may, furthermore, under its police power, limit the rj^ pia^. height of buildings^ and may divide itself into zones providing iij^^p*?-'* different regulations for the buildings in each." Such regula- Power, tions rest upon the safe basis of protection of the city from fire or the health of the people from overcrowding or the loss of fight and air. A different question is raised when, merely for the sake of preserving residence districts from the influx of corner drug stores or millinery shops, the city passes an ordi- nance forbidding any kind of business to invade streets which it sets apart for residential purposes. Certain kinds of under- takings — a brick yard, for instance,^ or a factory emitting dense •Preund, The Police Power, sec. 362 and 375. ^Chicago v. Union Traction Co., 199 111., 259 (1902). See Dillon, Municipal Corporations, sec. 1274 and cases cited. 'On this point see Edgar, R. A., Legal Aspects of Municipal Aesthetics, 18 Case and Comment. 360; also, 21 L. R. A. (N. S.), 735. 'Fifth Ave. Coach Co. v. City of Neie York, 194 N. Y., 19 (1909). 'Cicero Lumher Cn. v. Cicero. 176 111.. 9 : Brodbine v. Revere, 182 Mass., 598 ; Glittery v. Glenn. 201 lU.. 275. "See Shurtleff, op. cit., ch. 6. nn re District of Pittsburg. 2 W. and S., 320 ; also 70 Pa. St., 125 ; 166 Pa. St. (Biigft y. McKeesport^. Contra, weight of authority, e. g., Foster v. Scott, 136 N. Y., 577 ; Edirariis v. Bruorton, 184 Mass., 529. ^vrelch V. Sn-aseii. 193 Mass., 373 ; affirmed. 214 U. S., 91. See also 111 N. Y., 359. 'ib., see also Cochran v. Preston, 108 Md.. 220 (1908). 'Ex parte Hadaclieck, 132 Pac, 589 (Cal.) 326 STATE CONSTITUTION-MAKING. smoke^ — may, indeed, be abated as a nuisance, but the courts have not hastened to include under this head businesses which offend only the more strictly esthetic feelings. Thus the Su- preme Court of Illinois has declared void ordinances outlawing ice factories^ and milk depots* and, though the consent of two- thirds of the frontage owners was required, retail stores^ and garages.' On the other hand, a Los Angeles ordinance, adopted in 1909, Zones.' establishing seven industrial districts and declaring most of the rest of the city a residence district in which it is made unlaw- ful for any person, firm or corporation to erect, establish, maintain or carry on . . any stone crusher, rolling mill, carpet beating establisliment, fireworks factory, soap fac- tory, or any other works or factory where power other than animal power is used to operate, or in the operation of, the same, or any hay barn, wood yard, lumber yard, public laundry or wash house. To this the court said,^ There can be no question that the power to regulate the carrying on of certain lawful occupations in a city includes the power to confine th* carrying on of the same to certain limits whenever such restriction may reasonably be found necessary to subserve the ends for which the police power exists, and it refused to declare that the legislative authority in for- bidding the operation of a laundry in the residence district had so invaded private rights as to warrant the court's interference with its discretionary exercise of the police poAver. The Illinois court, furthermore, in a decision handed down Billboard ^^ April, 1915,' upheld an ordinance making unlawful the con- struction of billboards in certain residential blocks without the written consent of the owners of a majority of the frontage. =e. g., N. W. Laundry v. Des Moines, 230 U. S., 486 ; People v. Lewis, 86 Mich., 273 ; contra, St. Louis v. Heitzeherg PacMng Co., 141 Mo., 375. 'People ex rel Lincoln Ice Co. v. Citii of Chicago, 260 111., 150 (1913). 'People em rel Huntley Dairy Co. v. Tillage of Oak Park, 268 111., 256 (1915). 'People ex rel Friend v. City of Chicago, 261 111., 16 (1913) ; see also Stuibs V. Scott, 95 Atl., 1060. 'People em rel 0. L. Keller v. Tillage of Oak Park, 266 111. Concerning the significance of the consent of the two-thirds, see 266 U. S., 137 (1912). ^Ew Parte Quong Wo, 161 Cal., 220. See also In the matter of Hadacheck V. Sebastian. 239 U. S., 394. 'The Thomas Cusack Co. v. The City of Chicago, 267 111., 344. STATE CONSTITUTION-MAKING. 327 The decision was on the ground that billboards increase the fire peril and offer vantage spots for disorderliness and crime — especially in residence districts where the police watchfulness is less rigid than elsewhere. The same court maintained on the other hand, that a statute of 1909 forbidding, in certain cities, any structure for adver- tising purposes within five hundred feet of a public park or boulevard is invalid because the police power may not be used for purely esthetic purposes." This attitude is characteristic; the police power alleviates offenses to the grosser senses only — doubtless because the great majority of the people have been susceptible only to the grosser kinds of annoyance. The police power, however, has a tendency to extend itself to meet new demands and it would be a mistake to assume as a finality that it "cannot be used directly for esthetic purposes, and that ugli- ness cannot be abated as a public nuisance."^ The present state of the law and the possibility of future development are indi- cated in the following judicial language, — It is along the entrance to parks and along the parks themselves pre- served' to attract lovers of nature and the beautiful that these un- natural and Inartistic moving picture signs are displayed. But out o£ place, disagreeaible and offensive though they are both to the civic pride and esthetic taste, and although the tendency of equitable jurisprudence is to extend its jurisdiction to include This situation, the fact remains that no authority now exists which will justify the legal conclusion that the plaintiff's signs now constitute a nuisance.^ For reasons similar to those for abolishing objectionable structures along residence streets, it often seems desirable to forbid the dwelling houses themselves to become objectionable — especially the establishment of a line a certain distance from the street, in front of which no building shall project and so mar the symmetry of the street's general appearance and ob- struct the view of neighboring houses. In Missouri this has 'TJie Holler Sign WorJ;s v. The Physical Culture Training School, 249 111., 436 (1911). See also Quintini v. Bay St. Louis, 64 Miss., 483 (1886) ; People V. Qreene, 83 N. Y., Supp., 460 (1903) ; Passaic v. Patterson Bill Posting, Etc., Co., 72 N. J. L., 285 (1905). iCushman, op. cit., 88. See, also, Freu^d, Police Power, 166. 'Fifth Ave. Conch Co. w City of Neio York, 111 N. Y. Supp., 759. Affirmed, 194 N. Y., 19. 328 STATE CONSTITUTION-MAKING. been held to take private property without compensation/ but more recent decisions of the supreme courts of Virginia and of the United States* indicate a breaking away from this ruling. The police power may, of course, be extended by a state con- stitution to include specific desiderata now denied for carrying out the city plan. Its exercise, however, would still be sub- ject to the due process clause of the federal amendment, as interpreted by both the state and federal courts. When its police power proves inadequate for the occasion cf^pi ^^® *^^^^ must fall back upon its power of eminent domain, as ning and the limited bv the state constitutions, and condemn for purchase Limitations " ' UponEmi- that which it cannot, of a right, take.^ Even when financial nent Domain. ' ° ' considerations do not interfere, however, this latter power is not unrestricted. The constitutions require that private prop- erty must not be taken for public use without just compensation, and the courts universally maintain that there exists in the very nature of the power a denial that it shall be taken in any event unless for a public use." Is a purchase of an easement in land bordering a park or boulevard, for the purpose of restricting its usage to preserve the beauty and attractiveness of the public property, for a public purpose within the meaning of the law? The Massachusetts court upheld the right of Boston to pur- chase the right to limit buildings on Copley Square to a height of ninety feet, although its decision seemed to rest partly on the fact that the regulation would prevent encroachments upon the light and air of the place, and answered this question affirm- atively.' Statutes of a similar nature existing in other states' have not been judicially tested. The question of whether the purchase is for a public purpose 294^ Con fissumes an importance that may prove very great when, Insteaa demnation. of merely acquiring the right to regulate the use of land border- as*. Louis V. HUl, 116 Mo.. 527 (189.?). This sort of regulation has also been attempted under the police power. 'Euiank v. City of Richmond, 110 Va., 749 (1910), upholding Richmond ordi- nance fixing building line which could be ignored only with consent of two-thirds of the property owners on the block. lieversed, 220 V. S.. 137 (1912), but ap- parently on the ground that a police regulation could not be conditioned on the consent of property owners. "What the city cannot condemn under eminent domain, it may bargain for and buy. »0n this point see 2 Kent, Com., :!.'19. The same is true by implication from the constitutional provision. — HarrJinp v. Qootllett. S Yerger (Tenu.), 41. ''Attorney -General v. WilUavis. 174 Mass., 476 (1899), »e. g., Ind., Laws of 1911, ch. 231. STATE CONSTITUTION-MAKING. 329 ing its parks or streets, the city desires to take title in this land and hold it until it can be resold under suitable arrangements and restrictions. Excess condemnation, as defined by Mr. Cush- man," is the power to coudemn more land than the city actuiilly needs for the creation of a street, park, or other improvement, to hold this surplus laud until the improvement itself has caused an increase in the surround- ing land values, and then sell the surplus at a profit with or without re- strictions in the deeds of resale regarding Its subsequent use. It has been extensively used in Europe and was early introduced and used in New York Oity.^ Later it was declared that pur- chases under the excess condemnation law were for other than a public use and consequently that it was unconstitutional.^ In the years following 1000 the taking of excess land pri- marily for the purpose of making effective the purpose for which the land otherwise taken was to be used as has been author- ized by a statute in several states.' In 1907 Pennsylvania passed an act permitting Philadelphia to condfemn an area two hundred feet wide on either side of Fairmount Parkway and to resell it with restrictions for the protection of the appearance and use- fulness of the boulevard.* This the court declared to be not for a public use. In 1910 the Justices of Massachusetts handed down an advisory opinion," of similar purport, with the result that in 1911 the following constitutional amendment was adopted, — ® The legislature may by special acts for the purpose of laying out, widen- 295. ing or relocating highways or •streets, authorize the taking in fee by the yona?'°" Clauses. "Op. cit., 96. For an exhaustive treatment of the subject see Mr. Cushman's forthcoming monograph. Excess Condemnation (doctorial dissertation, Columbia University). IN. Y., Acts of 1812. ch. 174, sec. 3. Hn matter of Aliany Street, 11 Wend. (N. YJ, 148 (1834) ; see, also, Dunn r. Charleston. Harp. L. Rep., 189 (S. C, 1824). 'Acts of Mass., 1904, ch. 443, especially ; also O., 1904, p. 333 ; Md., 1908, ch. 186 ; Va., 1906, ch. 194, and others. For the texts of these laws and for an intensive study of the working of excess condemnation In European and American 'cities, see Herbert S, Swan's report on excess condemnation prepared for the National Municipal League and published by the Committee on Taxation of the City of New York. 1915. In 1867 both Pennsylvania and Massachusetts passed acts permitting the acquisition of remnants of land that might be left in the alteration of thoroughfares. •Acts of 1907, No. 315, p. 466. Peiin. Mutual Life Insurance Co. \. Philadel- pliia. 242 Pa. St., 47. i>Opinion of .lustices, 204 Mass., 606. "Article X, Part 1. 330 STATE CONSTITUTION-MAKING. Coniuionwealth, or by a county, city, or town, of more land and prop- erty than are needed for the actual construction of such highway or street ; provided, however, that the land and property authorized to be taken are specified in the act and are no more in extent than would be suflacient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appro- priated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions. In 1913 Isew York adopted a similar amendment,' — The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, ex- tending or re-locating parks, public places, highways or streets ; pro- vided, however, that the additional land and property so authorized to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the , land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased. In 1912 Ohio declared that* A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an ex- cess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be apropriate to preserve the improvement made. Bonds may be issued to supi>ly the funds in whole or in part to pay for the excess property so appropriated or other- wise acquired, but said bonds shall be a lien only against the property so acquired, for the improvement and excess, and they shall not be a liability of the municipality nor included in any limitation of the bonded indebtedness of such municipality, prescribed by law. Finally, in the same year, Wisconsin'^ added an excess condemna- tion clause in the following language, — The State or any of its cities may acquire by gift, purchase, or con- demnation lands for establishing, laying out, widening, enlarging, ex- tending, and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reserva- tions in and about and along and leading to any or all of the same ; and after the establishment, layout, and completion of such improvements, may convey any siich real estate thus acquired and not necessary for n, 7. SXVIII, 10. 'XI, 3a. STATE CONSTITUTION-MAKING. 331 such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public work and improvements, and their envii-ons, and to preserve the view, appear- ance, light, air, and usefulness of such public works.^ In noting the varied details of tliese essentially similar clauses it will be observed that Ohio^ and Wisconsin stress the idea that the excess condemnation is for the purpose of protect- ing the improvement or furthering its object whilst Massachu- setts and New York, the former in specifically authorizing the sale of the excess land without restrictions and the latter by per- mitting it to be leased as well as sold, seem to toe conscious, also, of possible financial gains to be had in disposing of the excess property at enhanced prices because of the added value given it by the improvement. These diverse objects express the double reason why the power of excess condemnation may be desired in carrying out the city plan. The earliest use of excess condemnation was to solve the ^.296. Discussion of problem of unusable remnants of propertv left when new streets Excess con- ^ r r ., demnation. were cut or old ones widened. Obviously the ability of the city to join or replot these pieces of land whenever jjossible is eco- nomically imperative. The condemnation of easements fur- nishes only a very expensive method of controlling the use of lands adjoining parks and boulevards or the approaches to pub- lic buildings and so preventing their use for unsightly struc- tures, unless, indeed, the value to the landowner of the improve- ment — and its protection — is set off against the price paid for the easement. By means of special assessments, however, the cost of im- provements may be placed upon the landowners whose property is especially benefited; but often the increase in value in ad- joining property exceeds the cost of the improvement. In such a case there seems no reason why particular persons and not ^Excess condemnation amendments submitted to the voters of California and New Jersey in 1915 were not accepted. The former contained the express stipulation that "For the purpose of acquiring, constructing, enlarging or im- proving a public park, playground, boulevard, street, building or grounds there- for, any county, city and county, Incorporated city or town may condemn lands outside of its boundaries and within the distance of ten miles therefrom ; pro- vided, that no lands within any other county, city and county, incorporated city or town shall be taken without its consent, to be given in any manner that may be provided by law." Furthermore, the taking and disposing of property was to be regulated by general law. An excess condemnation amendment is pending in R. I. *The O. authorization of bond issues should be especially noted. 332 STATE CONSTITUTION-MAKING. the community as a whole should receive the benefit — in other words why the excess value should not accrue to the city. By means of excess condemnation the city acquires for itself the land especially benefited and so the opportunity for recoupment at its subsequent sale. Instances are, indeed, on record where large net profits have been thus made in opening and improving streets.* The sum total of experience in Europe, however, does not indicate that a net profit can be hoped for regularly, though substantial assistance in making the improvement may fre- quently result from excess condemnation. Another argument in favor of allowing the city this power is expressed in the following paragraph from the California publicity pamphlet, setting forth the amendments to be voted upon in 1915, among them, one allowing excess condemnation, — Inasmuch as the erection or construction of the original public improve- ment creates, In a large measure, the increased values in the adjoining properties, it is manifestly unfair that the public, when seeking to en- large such Improvement, should be compelled to pay an enormously increased price for the adjoining property." Where an enlargement is to be expected speculation in adjoin- ing lands is, of course, probable.^ Needless to say the succesful use of excess condemnation de- pends upon the good judgment and honesty of municipal offi- cials and where correct administrative methods are not rigidly enforced there is little likelihood that it can furnish more than an eft'ective means of protection to public improvements. As in the case of extension of the police power, excess condemnation must be measured by the due process test of the federal consti- tution and its future in the United States consequently awaits the pronouncement of the federal courts. As in the case of extension of the police power, likewise, the city needs the power of excess condemnation to complete its ability to carry out what- ever plan it may adopt. In providing means for accomplisih- ing the plan, as well as in making the plan itself, the realization *e. g., Montreal. "Slmilai'ly land may well be reserved in suitable locations for future public buildings. "Interesting problems of evidence in condemnation proceedings may grow out of attempts to speculate. See Union R. Co. v. lliinton. 114 Tenn., 609, 88 S. W., 182. STATE CONSTITUTION-MAKING. 333 must always be present that, if there seems to be any conflict, "the convenience and enjoyment of the community should take precedence of the whim of the private owner.'" "No new constitution may be deemed a liberal instrument," says a thoughtful financial official of New York,^ which does not enable the state and its subdivisions to absorb those values accruing through the exercise of governmental functions, and community effort. An excess condemnation clause, as he says, is a step in this direction. Tennessee Note. — The usual clauses preventing individuals from being deprived of their property but by the judgment of their peers or the law of the land" and guaranteeing Just compensation when their property is taken for public use' are found in the Tennessee constitu- tion.'^ Otherwise it is silent upon all subjects connected with city plan- ning. The cities of the state have also been negligent, but in recent .years several of them have made considerable progress in the planning and development of parks and boulevards. The city of Chattanooga, for instance, recently secured the services of the famous landscape architect John Nolen to draw up a plan for a park system.' Memphis has been most active among the Tennessee cities. Its charter* provides for a Board of Park Commissioners, to be ap- pointed by the city commission to serve without compensation. They must not hold other office. The board may employ a landscape architect and determine his salary. The board is given the duty, among others, "to devise and adopt a system Of public parks, parkways, and boulevards for the use of the city and its inhabit.ints, and select and designate lands to be used and appropriated for such purposes, within or without the city limits, and to select routes and streets for boulevards, and to cause the same to be opened and widened as hereinafter set forth, and by and with the approval and authority by ordinance of the Municipal Council, 'A. B. Marling, Ch'man, in letter transmitting to the Mayor the report on Excess Condemnation of the New Yorl: City Committee on Taxation, 1915. 'Deputy Treasurer Ernest Cawcroft, Proceedings of the Academy of Political Science, V, 241 (250). "I, 8. "Law of the land" means the same as "due process of law." "I, 21. memphi8 V. Hastings. 113 Tenn., 142; 86 S. W., 609, — Acts of 1899, ch. 142, authorizing taxing districts and cities to condemn land not more than ten miles beyond their corporate limits for parks and parkways was not invalid as authorizing condemnation of land for mere public convenience as distin- guished from a public necessity or public use. 'General Features of a Park System for Chattanooga, Tennesee, report to the boiard of park commissioners, by John Nolen. 'See Acts of 1907, ch. 184, art. VII ; Acts of 1909. ch. 298, sec. 52. For Nashville park commission. Acts of 1913, reg. sess. ch. 22, sec. 39. 334 STATE CONSTITUTION-MAKING. to establish, change or re-establish the grade of any boulevard or park- way, and to require any railway upon or across such boulevard or park- way to be brought to the grade so established, changed, or re-established. No change shall be made in the grade of any street upon which any park land abuts, unless the Board of Park Commissioners shall approve of such change or grade." On petition, the owners of a majority of the front feet of lots front- ing upon a parkway, boulevard, road or avenue, or a part of one, the board is authorized to recommend to the comlmission regulations of build- ing lines and limitations upon the use that may he made of abutting lands. Special assessments paid by the owners of abutting land, irrespective of improvements, is the usual method of financing the paving of streets in Tennessee cities." CHAPTER XXI. Problems of County Government.^ 297. Dlminisliiag Importance of the County. Just as the functions of the states have become of increas- ingly less importance as the federal government has grown in power and influence,^ and cities have grown to overshadowing proportions, so the local rural subdivisions of the states — espe- cially counties — ^have relatively lost ground as population has tended city-ward and ease of communication, together with im- proved ideas of administration, have centralized at the state capitols the control of more and more of the functions that for- merly were delegated to county and minor local governments. The growth of cities and the necessary jurisdiction of county officers over municipal areas, possessing separate and in some respects conflicting governmental agencies, has tremendously complicated the whole problem. Developed from colonial con- tinuation of English usages the county has, indeed, become in "See Acts of 1905, 278. Arnold v. Knoxrllle, 115 Tenn., 195. 'General References : County Government, Vol. XLVII of the Annals of the American Academy of Political and Social Science (May, 1913) ; Pairlie, Jno. A., Local Government in Counties, Towns and Villages; Urdahl, T. K., The Fee System in the United States. ^Ou this point see Macv and Gannaway, Comparative Free Government, pp. 310-314. STATE CONSTITUTION-MAKING. 335 many respects an anacronism under modern political and social conditions. Loss of prestige on the part of the county and its failure to continue prominently in the mind of the people has inevitably spelled decadence and has made local adminis- tration of the present what a well-known writer^ has aptly termed the "county jungle." There were, in IDIO,* 2,942 counties in the United States, 298. ranging in size from New York county with 2,762,522 inhabi-in counties. tants= and Cook County, Illinois," with 2,405,233, to Cochran County, Texas, with sixty-flve inhabitants. A few of them were co-terminus with great cities, whilst a large proportion con- tained no community of as many as 1,000 people. Inevitably very great differences in county government are found accom- panying such diverse conditions, but they are less striking than the uniformity that prevails, generally speaking, throughout the great sections of the country in which the characteristic types of county government have developed. In New England, where the population tended to congregate in small, compact commu- nities, often distinctly separated by natural boundaries or un- settled country, local affairs were naturally left to the voters of each community, who could easily meet in a body and de- termine matters directly. Consequently the individual towns rather than the counties became the essential local units and the latter were given few governmental functions aside from the administration of justice. In the South, on the other hand, the people lived on scattered plantations, the aristocratic owners of which constituted the influential class politically. Road- building, poor relief and other functions of the northern town were attended to by the planters themselves. There were few distinct local communities and the representative county board became the organ for such governmental acts as were not per- formed by the state. In the middle states the counties became divided into town- ships — local subdivisions less distinct and with fewer functions than the towns. The township system stands intermediate be- »E. S. Chllds. 'Thirteenth Census. The figures include the Louisiana parishes which may be thought of as the counties of that state. The name county is invariably used elsewhere. ''Since divided into two counties. ^Containing Chicago. 336 STATE CONSTITUTION-MAKING. tween the New England towns and the southern counties. Township and purely county administration of local govern- ment spread westward through roughly parallel areas, but prairie townships, distinguished not bj social arrangements but by surveyor's lines never assumed the importance that they pos- sessed in the East. Throughout the far West, where population is still sparse, the county is the most important unit of local government. Constitution-makers have been bountiful in their notice of counties and lesser subdivisions of the state. The existence of these subdivisions they have for the most part taken for granted ; consequently the provisions in the constitutions are of a limit- ing rather than of a constructive character. Nevertheless, be- cause the constitutions have recognized and regulated certain kinds of county government, the courts have held that they are the constitutional forms of government and cannot be super seded by statute. In all the states except Georgia and Elhode Island" the chief 299. governmental organ is the county board, commission or court. Board. varying in membership from three or five to a score or more' and invested with such functions" and powers as the legislature has seen fit to bestow upon it within the constitutionally pre- scribed limits. Among these limitations is the inability of the legislature to delegate its power of legislating. Except, how- ever, for a few very brief directions concerning organization,^ and the number of members,^ the structure and composition of the boards are left undetermined. There are a number of interesting clauses specifying what the board shall do. For example mingled judicial and admin- istrative "jurisdiction" is conferred upon the Arkansas county Court in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticesbip of minors, the disbursement of 'See Fairlie, op. clt., 75. The county is always the unit lor the administra- tion of Justice. 'Sometimes the numher runs considerably higher. Erie County, New Yorl£, has a board of fifty-four supervisors. "The control of county finances is the most important function of the county board. »e. (/., Ark., VII, 30; Tex., V, 18; W. Va., VIII, 22. 'e. sj., Cal., XI, iy2 (1) ; Fla„ VIII, 5; Ida., XVIII, 10; 111., X, 6. STATE CONSTITUTION-MAKING. 337 money for county purposes and in every otter case that may be neces- sary to the internal improvement and local concerns of the respective counties.' In West Virginia, besides such duties as may be prescribed by law, the county court is invested with the superintendence and administration of the internal police and fiscal affairs of their counties, Including establishment and regulation of roads, ways, bridges, public landing, ferries and mills, with authority to lay and disburse the county levies.* The most lengthy and important of the constitutional regu- 300. lations of counties pertain to finances, especially indebtedness. Finances. Of these the most important prohibit debts in aid of private corporate or municipal entetprise,° the requirement of a refer- endum to the electorate before the issuance of bonds" and the limitation of amount of total indebtedness.' In this connection should be mentioned, also, clauses de- soi. ' ' Fee System. Signed to control the compensation of county officers — some of whom, paid by fees, have, in rapidly growing counties, received sums out of all proportion to services rendered. In several con- stitutions the requirement is that all fees in excess of the stated compensation shall be paidinto the treasury' and in some others compensation must be by definite salaries." Taken as a whole the constitutional provisions concerning counties are simply an illustration of the increasing disposition of constitution-makers to detail limitations upon the action of the governments which they create.^ Such provisions possess qualities of prudence and caution inherent in this method of constitution-making, as well as the resulting inelasticity and the inability of the government to share the political and social »Ark., VII, 28, 29. *W. Va., VIII, 24. See, also, e. g., Colo., XIV, 6 ; N. C, VII, 2, 14. 'e. g., Ala., IV, 94 ; Cal., IV, 31 ; N. M., IX, 14, 15. »e. g., Colo., XI, 6. 'e. g., Ky., 158 ; Wis., XI, 3. »See Ariz., XXII, 17; Ark., XIX, 23; Colo., XIV, 15; Ida., XVIII, 7; HI., X, 10, 11, 12 : N. JI.. X, 1 ; Pa., V, 7, 13, XIV, 5. Also, Utah, XXI, 2 ; Wyo., XIV, 2. "See, e. g., Utah, XXI, 1. Colo., XX, 3, requires that the charter of the city and county of Denver shall state the compensation of every oflScer and that it shall he a stated salary. *The reductio ad aisurdum of this tendency Is seen in the Oklahoma article (XVII) of twenty-five finely-printed pages on counties, containing among other things separate paragraphs bounding and describing each of' its seventy-five counties. 22 338 STATE CONSTITUTION-MAKING. 302. Reform Proposals. 303. Home Rule. evolution of the time — an inability, however, frequently appar- ent, irrespective of constitutions, because of the apathy and in- ertia of the people. Little complaint need be made in the strictly rural portions of the states, but where population has grown and cities have sprung up, there has uniformly been a breakdown of county government. Proposals for reform include two principal weapons of at- tack, — (1) to free the counties from legislative intermeddling and (2) to make county governments responsible — and eflScient. Furthermore, where large cities overshadow the remainder of the county, the combination of municipal and county govern- ments has been suggested. The unfortunate results of separate legislation for individ- ual localities, already mentioned in the discussion of home rule for cities,^ has led, in a few constitutions, to the requirement that the legislature shall establish "but one system of county govern- ment which shall be as nearly uniform as practicable."^ In a third of the states* special and local legislation regulating the affairs of counties is flatly forbidden and is in some others re- stricted.' In Oklahoma" the power of initiative and referendum is expressly reserved to the legal voters of every county "as to all local legislation or action in the administration of county . . . government." Such provisions obviously go but a short distance toward the solution of the home rule problem. A widely advocated, remedial device is the adoption by the legislature of certain model forms of county government which cannot be changed by private act, and making them optional to the individual coun- ties.' Going a step farther, California' has inaugurated home rule for counties as well as for cities by permitting them to choose and adopt their own systems of government. Since county administration is, however, primarily a branch of state Hupra, p. 297. ^Wording of Wis., IV, 23. See, also, e. g., Cal., XI, 4 ; Fla., Ill, 24 ; Ga., XI, sec. IIi; 1 ; Ida., XVIII, 5 ; Wash., XI, 4. •e. g., Ind., IV, 22 ; Pa., Ill, 7 ; Tex., Ill, 56. »e. g., Ky., 60 ; N. J., IV, 7, 11 ; Utah, VI, 26, 11. See, on the other hand, Ga., XII, sec. I, 4. •V, 5. 'See Gllbertson, H. S., The New York County System, American Political Science Review, VIII, 413 (426). »XI, 7J^. See also Md., Xl-a. STATE CONSTITUTION-MAKING. 339 government, the degree of 'home rule granted is naturally some- what less than in the case of cities; and home-rule charters, besides being subject to the ratification of the legislature, must provide for the following matters, — 1. For boards of supervisors and for the constitution, regulation and government thereof, for the times at which and the terms for which the members of said board shall be elected, for the number of members, not less than, three, that shall constitute such boards, for their compen- sation and for their election, either by the electors of the counties at large or by districts ; provided, that in any event said board shall con- sist of one member for each district, who must be a qualified elector thereof; and 2. For sheriffs, county clerks, treasurers, recorders, license collectors, tax collectors, public administrators, coroners, surveyors, district at- torneys, auditors, assessors and superintendents of schools, for the elec- tion or appointment of said officers, or any of them, for the times at which and the terms fpr which, said officers shall be elected or appointed, and for their compensation, or for the fixing of such compensation by Iwards of supervisors, and, if appointed, for the manner of their ap- pointment; and 3. For the number of justices of the peace and constables for each township, or for the number of such judges and other officers of such inferior courts as may be provided by the Consti'tU'tion or general lanv, for the election or appointment of said officers, for the times at which and the terms for which said officers shall be elected or appointed, and for their compensation, or for the fixing of such compensation by boards of supervisors, and if appointed, for the manner of their appointment ; and 4. For the powers and duties of boards of supervisors and all other county officers, for their removal and for the consolidation and segrega- tion of county offices, and for the manner of filling all vacancies occur- ring therein ; provided, that the provisions of such charters relating to the powers and duties of boards of supervisors and all other county offi- cers shall be subject to and controlled by general laws ; and . 4J. For the assumption and discharge by county officers of certain of the municipal functions of the cities and towns within the county, whenever, in the case of cities and towns Incorporated under general laws, the discharge by county officers of such municipal functions is authorized by general law, or whenever. In the case of cities and towns organized under section eight of this article," the discharge by county officers of such mnnielpaJ functions is authorized by provisions of the charters, or by amendments thereto, of .such cities or towns. 5. For the fixing and regulation by boards of supervisors, by ordi- nance, of the appointment and number of assistants, deputies, clerks, •XI, permitting certain cities or cities and counties to frame cliarters. 340 STATE CONSTITUTION-MAKING. attaclies and other persons to be employed, from time to time, in the several offices of the county, and for the prescribing and regulating by such boards of the powers, duties, qualifications and compensation of such persons, the times at which, and terms for which they shall be ap- pointed, and the manner of their appointment and removal ; and 6. For the compensation of such fish and game wardens, probation and other officers as may be provided by general law, or for the fixing of such comx>ensation by boards of supervisors.^ These regulations, though of statute-like proportions, furnish no such obstacle to the counties as does the necessity for fre- quently seeking special enactments from the legislature. More- over, they are constitutionally fixed and so not subject to leg- islative alteration by means of laws general in form but local in application. The first home-rule charter adopted, that of Los Angeles County, set an example of brevity without sacri- ficing completeness and aimed at efficient and responsible gov- ernment by thorough civil service regulations and a notable re- duction in the number of elective officials.^ 304 The effort to obtain responsible governments for counties as Government. ^^^ Other political uuits directs itself, .indeed, chiefly toward the centering of authority in a few carefully chosen representatives of the people, who shall have the power of appointing all other officials and be answerable for their own and their subordinates' conduct. Comipetitive civil service examinations form the best known method of selecting subordinate officials. Attempts have been made, indeed, notably in Indiana,^ to solve the evils of the complex and unwieldly system of county government by adding to its complexity to the extent of check- ing the existing county board by the addition of another, charged with certain specified powers, as to financial control. The result, naturally, has not been encouraging. Whenever the county board or court contains more than five members, there develops a question of reducing it to three or five and electing it not by districts or townships, but upon a general county ticket ; only in this way, so the argument runs, can the people know just whom to blame for misgovernment and praise for good government. Having obtained a responsible body, the ap- 'Oonst. as published by the state, 1915, pp. 100-101. ^Works, L. R., County Home-Rule in California: The Los Angeles Charter, The Annals, op. clt., 229. 'Lapp, Jno. A., Checks on County Government, The Annals, op. clt., 248. STATE CONSTITUTION-MAKING. 341 pointment of tlie county officers, sheriff, clerk, register, treas- urer and others can safely be left to its discriminating care, and the people can be left free to concentrate all of their attention upon the election of the board. Just as in the case of the city, the advocacy of commission government for counties has developed in some places into a demand for a county manager — a single individual instead of a board — charged vi^ith the general superintendency of county business.* It should be repeated and emphasized that county, like city, government, save in a more marked degree, involves little or nothing of a policy-determining character. Its func- tions are mostly administrative and even should the state turn over to it the duty of deciding those things that are. now usually provided for by itsi own special acts, the county's legislative functions would be so simple as to be readily determinable by the commission, or by the board provided to select the manager, ' — subject, perhaps, to a referendum by the people. Some writers believe that the state should directly control natters those officers who, like the sheriff and public prosecutor, are»f^sta^t« especially charged with the enforcement of the state's laws.° There are also other functions, like the assessment of property for both state and local taxes, building of roads and mainte- nance of educational and eleemosynary institutions that can more economically and more effectually be performed by central agencies for the whole state. In fact, so many of the incidents of county government can be surrendered to the state or left to the townships or other subdivisions of the counties that one prominent writer has intimated that the theoretically perfect county is the county that is non-existent. There remains to be mentioned only the consolidation of„306 •' Consolida- county and city where their activities would otherwise be du- won of city '' ■' and County. plicated or in conflict. Even where city and county have the same area as in the case of Philadelphia or where the city in- cludes several counties as in New York, satisfactory consolida- tion has not always been effected. Though there seems no rea- *See, e. g., articles by M. L. Requa and W. S. U'Een, The Annals, op. dt., pp, 237 and 271. 'e. g.. Buck, G. S., The Organization of County 0-overnment. Proceedings of Academy of Political Science, V, 342 (346). "Childs, E. S., A Theoretically Perfect County, The Annals, op. cit., 274. 842 STATE CONSTITUTION-MAKING. son why, in such cases, one government should not suffice for every requirement, vestiges of the old separation remain.' The Michigan constitution' ordains that when any city has attained a population of one hundred thousand inhabi- tants, the legislature may organize it into a separate county without reference to geographical extent, if a majority of the electors of such city and of the remainder of the county in which such city may be situated voting on the question shall each determine in favor of organiz- ing said city into a separate county. California takes more advanced ground in the following clause,^ — City and county governments may be merged and consolidated into one municipal government, with one set of officers, and may be incorporated under general laws providing for the incorporation and organization of corporations for municipal purposes. The provisions of this Constitu- tion applicable to cities, and also those applicable to counties, so far as not inconsistent or prohibited to cities, shall be applicable to such con- solidated government. Under this provision San Francisco performis the duties and exercises the privileges of both a city and a county, under one government. The same is true in Denver, under a special pro- vision of the Colorado constitution.^ County government, both actual and proposed, stands in interesting contrast to the governments of the states because of the absence of almost all sugg^tion of the separation of powers. The people have never feared their local governments and such powers as they have conferred upon them they have not thought necessary to guard with checks and balances. Un- fortunately, however, efficient organization has likewise been neglected. Probably no state administrative problem today is of greater importance than that of correlating the numerous county officials into a definite working system that can ade- quately transact local business and' perform such state functions as may be delegated to it. ' 'Gradually they will, no doubt, be eliminated. "VIII, 2. "XI, 7. 'XX, 1. For an Interesting account of the problems of a county containing several rival cities and a more or less antagonistic rural population, see The Government of Alameda County, California, by M. L. Requa, The Annals, op. dt., 237. STATE CONSTITUTION-MAKING. 343 Tennessee Note. — More than one-eiglith of the constitution of Ten- nessee Is consumed by its provisions for counties, county officers and county finances.'' The legislature is given power to authorize the counties to levy taxes, under the restrictions of the constitution applying to state taxation, and under such additional regulations as may be prescribed by law. The assent of three-fourths of the qualified voters of a county must be obtained to authorize it to loan its credit to or become a stock- holder in any private enterprise. Clerks of the various courts, justices of the peace, constables and the sheriff, trustee, register, coroner and ranger are recognized as county ofiicers and made compulsory for each county. For crimes and misdemeanors in office these officers are liable to in- dictment in such courts as the legislature may direct and, on convic- tion, to removal from office." Elections and the fiJling of vacancies are regulated. The division of counties into districts is prescribed and the establishment of new counties is lengthily provided for. The governmental functions of the counties are entrusted chiefly to the county courts.* The constitution of 1834 did not contain the words "county court" and in the constitution of 1870 they occur only once, in the final section, which forbids county offices to be filled otherwise than by the people or the county court. Yet because the court is in practice composed of the justices of the peace, who are con- stitutional officers and accorded certain constitutional functions, it has always been held that the leglsJature cannot abolisli it and put in its place some other form of county government." The legislature may alter the number of civil districts — iby which the justices ai-e electedi — and so reduce the size of the court to the usual size of a commission.' Though the legislature cannot destroy the county court' the latter has no inherent powers and so can perform only those functions expressly authorized by the legislature.' In prescribing these functions the legis- lature is restrained not only by the general constitutional principle that it cannot delegate its legislative powers," but also by the constitutional provisions Intended to prevent laws applying to only a portion of the state.' 211, 28, 29 ; V, 5 ; VI, 13, 15 ; VII, 1, 2, 5 ; X, 4, 5 ; XI, 8, 17. 3See Acts of 1915, ch. 11. •iPopularly elected county ofScials, both statutory and constitutional, are, of course, independent of the county court. 'Pope V. PMfer, 50 Tenn., 682, declared invalid Acts of 1868, ch. 65, creating hoards of commissioners for Madison and White Counties, appointed by the gov- ernor and having the powers of the justices in the county courts. This case is not good authority for the proposition that the legislature might not, for all the counties of the state, establish commission government. See Const. 1796, VI, 1. estate V. Atkin, 112 Tenn., 603. 'Nor can It destroy a county,— Jomes Oo. v. Hamilton Co., 89 Tenn., 237. ^Burnett v. Moloney, 97 Tenn., 697. "Cooley, Constitutional Limitations (1890 Ed.),' pp. 137, seq. iXI, 8. 344 STATE CONSTITUTION-MAKING. The former restriction prevents the legislature from authorizing the counties to pass laws relating to their own affairs.'' Thus the county court can pass no fence, stock and road laws, which, if the varying wishes of the people are to be carried out, must be different in different counties. The constitution authorizes county tax levies and the courts have held that the county courts may be authorized to make appropriations for the ordinary and extraordinary expenses of government,' hut beyond this the counties have no legislative powers. Local legislation outside chartered cities would, indeed, be a thing unknown in Tennessee did not the courts wink at the palpable evasion of the constitutional prohibition of laws "granting to any individ.ual or Individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, hy the same law extended to any member of the community, who may be able to bring himself within the provisions of such law." Induced by necessity, doubtless, the supreme court has held thait any county may at isome time be any size and that laws relating to counties of a specified number of inhabitants according to a given federal census or any subsequent federal census are such that any mem- ber of the community may he able to bring himself within them.* To a person accustomed to local self-government such as is exer- cised by the New England towns, the denial of local self-government in Tennessee seems not less ridiculous than thrusting upon the legisla- ture the duty of making local enactments for each of the ninety-six counties of the state. In 1915 there were only four counties for which local laws were not passed.* 'See Leeper v. State, 103 Tenn., 500. 'See Hunter v. Justices, 47 Tenn., 49 ; Shelby Co. v. Exposition Co., 96 Tenn., 653. *See Woodward v. Brien, 82 Tenn., 520. "Indebtedness Is acknowledged to Dean C. W. Turner of the University of Tennessee Law School for suggestions relating to this note. Concerning the county court, see Caldwell, J. W., Local Government in Tennessee, Proceedings of joint meeting of the Bar Association of Tennessee and the Arkansas Bar As- sociation, 1907, p. 173 ; Peale, W. P., The County Court in Tennessee, 23 Ten- nessee University Magazine, pp. 1 and 54. STATE CONSTITUTION-MAKING. 345 CHAPTER XXII. Eevising THE Constitution.^ Fundamental law is no exception to the rule that all things yj^^^-f^^ human change. Each succeeding generation has its own ideas Revision, as to what constitutes the fundamental in law, — an inevitable result as society finds its economic conditions and intellectual attainments altered with the passage of time, and a result that bears fruit in an ever-increasing number of amendments to the state constitutions. "I do not find a model in the world," wrote William Penn,^ "that time, place, and some singular emergencies have not necessarily altered, nor is it easy to frame a civil gov- ernment that will serve all places alike." No fewer than six of those state constitutions adopted dur- jjariy ' con- ing the revolutionary period, however, were entirely without ^**'".*'°°^- provision for alteration in any manner. Their framers were revolutionists and perhaps ignored the possibility that future constitution-makers might prefer legal rather than revolution- ary change. On the other hand, four of the original constitu- tions' and the New Hampshire constitution of 1784 included clauses authorizing the calling of constitutional conventions, and three others,* adopted before the close of the war, provided for constitutional amendment by legislative action. During the first sixty years of development only two states" followed the example of the federal constitution to the extent of providing both for the calling of a convention and the adopting of amend- ments, but at the present time in every state except New Hamp- shire there is specific authorization for amendment on the initia- tive of the state legislature and three-fourths of the states con- tain directions for calling conventions.^ In several of the states 'General References: Dodd, W. F., The ■ Revision anil Amendment of State Constitutions; Jameson, J. A., Constitutional Conventions ; Oberholtner, E. P., The Referendum in Amerioa. 2In the preface to his Frame of Government. «Ga., Mass., Pa., Vt. •Del., Md., S. C. (177S). No ratification by people. 'Del. (1792) ; S. C. (1790). "AH except Ark., Conn., Ind., La., Mass., Miss., N. J., N. D., Pa., E. I., Tex., Vt. 346 STATE CONSTITUTION-MAKING. 309. Proposal of Amendments by the ligislature. not providing for th|em conyen'tions have nevertheless been held/ but in Ehode Island the view is officially taken that this is not allowable.' Of the constitutions of the revolutionary period only those of Massachusetts (1780) and New Hampshire (1783) were for- mally submitted to the people for approval and not until the Connecticut constitution of 1818 was final decision upon amend- ments placed in their hands. But the principle that matters of fundamental law should receive the sanction of a popular vote of approval took root almost from the very beginning and with the triumphant democracy of the early nineteenth century became firmly established. It is now almost universally ac- cepted in practice as well as in theory. Beginning with Oregon, in 1902, twelve states" have taken the further step of allowing the people, on petition of specified percentages of the voters, to initiate proposals for constitutional amendments and cause them to be submitted for approval or rejection at a popular election. Notwithstanding the fact that historically revision by con- vention antedates amendment by legislative and, of course, by popular proposal, the latter two, as simpler methods, may ap- propriately be considered first. The state constitutions show four distinct methbds of legis- lative proposal, — (1) The Delaware^ provision that an amend- ment may be adopted by two-thirds vote of all the members elected to both houses of two succeeding legislatures, before the election of the second of which it must be published in three newspapers in each county; (2) Proposal by one legislature and ratification by the electorate, — allowed in thirty-one states,^ (3) the South Carolina' provision that an amendment may be proposed by vote of two-thirds of the members elected to each house of the legislature and, if approved by a majority of the 'See, supra, pp. 58-9, for the manner In which the Tenn. convention of 1870 was called in the absence of authorization by the existing constitution. '14 R. I., 649. Advisory opinion of judges of highest court. •Ariz., IV, Pt. I, 1 (1) ; Ark., V, 1; Cal., IV, 1: Colo,. V, 1; Mich., V, 1, XVII, 2; Mo., IV, 57; Neb., Ill, 1; Nev., XIX, 3; N. D., XV, 202 (1914) ; C, II, la ; Okla., V, 1 ; Ore., IV, 1. iXVI, 1. 2Ala., XVIII, 284 ; Ariz., XXI, 1 ; ArU., XIX, 22 ; Cal., XVIII, 1 ; Colo., XIX, 2 ; Fla„ XVII, 1 ; 6a., XIII, sec. I, 1 ; Ida., XX, 1 ; lU.. XIV, 2 ; Kan., XIV, 1 ; Ky., 258; La., 325; Me., X, 2, (Amend. 1914) ; Md., XIV, 1; Mich., XVII, 1; Minn., XIV, 1 ; Miss., XV. 273 ; Mo., XV, 2 ; Mont, XIX, 9 ; Neb., XV, 1 ; N. M., XIX, 1; N. C, XIII. 2; 0., XVI, 1; Okla., XXIV, 1; Ore., XVII: S. D., XXIII. 1 ; Texas, XVII, 1 ; Utah, XXIII, 1 ; Wash., XXIII, 1 : W. Va., XIV, 2; Wyo., XX, 1. =XVI, 1. STATE CONSTITUTION-MAKING. 347 electors voting for or against it at the next general election for members of the lower house, may be adopted by a majority vote of each house of the legislature; and (4) proposal by two succeeding legislatures and ratification by the electorate, — al- lowed in fourteen states.* Provisions for securing a separate vote on each amendment when several are submitted to the electorate are found in some thirty -four constitutions." Kentucky, furthermore, ordains that each amendment shall relate to no more than one subject. Not more than two amendments may be submitted at the same time in Kentucky," nor more than three in Arkansas, Kansas and Montana;^ amendments may not be proposed to more than one article at the same session in Illinois* nor to. more than six in Colorado." Frequency of submission also is sometimes limited, notably in Tennessee,^ where the people may not be required to vote upon amendments at all oftener than once in six years.^ Five states^ exempt bills proposing amendments from the veto power of the governor. As a matter of practice they are usually proposed' by joint resolution and thus often avoid liability to veto.* Of the thirty-one states allowing amendments to be proposed by one legislature, a vote of two-thirds of the members of each house is required by sixteen,"" a vote of three-fifths in seven' and «Conn., XI : Ind., XVI, 1 ; la., X ; Mass., Amend. IX ; Nev. XVI, 1 ; N. J., IX ■ N T , XIV, 1 ; N. D., XV, 202 ; Pa., XVIII, 1 ; R. I., XIII ; Tenn., XI, 3 ; Vt., II, 68 ; Va., XV, 196 ; Wis., XII, 1. 5e. g., Cal., XVIII, 1 ; Colo., XIX, 2 ; Ind., XVI, 2 ; Ky., 256 ; Vt., II. 68. «256. TCIX, 22; XIV, 1; XIX, 9. 8XIV, 2 — nor to the same article oftener than once in four years. •XIX, 2. iXI, 3. ''See, also, N. J., IX; Pa., XVIII, 1 (not oftener than once in 5 years). Ind., XVI, 2. »Ala., XVIII, 287, V, 125; Ky., 256; Miss., IV, 60; Mo., V., 14; R. I., Amend. XV, 1. *rhe legislative procedure in the jpassage of amending proposals Is frequently detailed and many directions for giving notice of elections, for the quallncation of electors, et cetera are laid down in the constitutions. — e. g., N. Y., XIV, 1 ; Va., XV, 196. Much litigation has arisen because of alleged failures to obey these directions. — See Dodd, op. clt., ch. 4. For another review .of constitu- tional amending clauses and judicial decisions, followed by criticism, see Gar- ner J W., The Amendment of State Constitutions, American Political Science Review, I, 213 (1907). 'In twelve, two-thirds of those elected to each house ; in tTvo, two-thirds of all the members of the two houses, voting separately ; in one, two-thirds of both houses ; in one, two-thirds of each house on each day for thrue days. Concern- ing judicial interpretation, see Dodd, op. cit., 142-3. e. g., — Green v. Welter, 32 Miss., 650 (1856). "In six, three-fifths of members elected to each house ; in one, three-fifths of each house. 348 STATE CONSTITUTION-MAKING. a vote of a majority in eight.'' New Mexico^ requires a vote of three-fourths of the members elected to each house to propose an amendment relating to certain sections concerning the elect- ive franchise and education," and the afflrmative votes of three- fourths of the electors voting upon such an amendment to adopt it. In twenty of the states^ an affirmative majority of those vot- ing upon an amendment is sufficient to adopt it; in seven a majority of those voting in the election is required. North Carolina^ says simply that there must be a "majority of votes cast," and Idaho and Wyoming^ a majority "of the electors" must be favorable. Montana makes no specification upon the subject.* Of the fourteen states requiring the approval of two legisla- tures' before an amendment may be submitted to the people, one specifies that there must be in the former legislature a two- thirds vote of the senate and a majority vote of the lower house, and in the second legislature a majority of each ; another that in each case there must be a majority of the senators and two- thirds of the members of the lower house present and voting. A third state requires that there must be a majority vote of the lower house of the first and a two-thirds vote of each house of the second legislature; a fourth state requires a majority vote of the members elected to each house of the former and of two- thirds of the members elected to each house of the latter legisla- ture. The remaining ten states require in each instance the affirmative vote of a majority of the members elected to each house of the legislature. Three-fifths of the electors voting upon the submitted amendments is necessary for adoption in one state, an affirmative majority of those voting for members of the lower house of the general assembly in a second state, a major- ity of the electors present at the town meetings called for the 'A majority of the members elected to each house in six ; same, voting separately, in one ; majority of both houses In one. 'XIX, 1. »vn, 1, 3; XII, 8, 10. 'Including N, M. in regard to other amendments. ^XIII, 2. »XX, 1 ; XX, 1. 'See XIX, 9. 'Including Va., XV, 196 — the legislature at two succeeding regular sessions ; N. Y., XIV, 1 ; legislature chosen at next general election of senators. STATE CONSTITUTION-MAKING. 349 purpose of considering the amendment in a third, a majority of the electors in a fourth and in the ten remaining states a major- ity of those voting upon the amendment. From the simple and characteristic method of amending the constitution by an ordinary Tote of one legislature and ratifica- tion by the people, varyingly complicated methods are found until the climax is reached in the Tennessee constitution, which requires for proposal a vote of two legislatures — in the latter a vote of two-thirds of all the members elected to each house, followed by the favorable vote of a majority of those electors who take part in the election of members of the lower house of the legislature. Furthermore, only once in six years may amendments be submitted to the electorate. "The requirement of proposal by two successive legislatures," says Profssor Dodd,^ vvbile it defeats aiany projects which would otherwise go to the people, cannot be said to interpose a serious obstacle in the way of constitu- tional alteration. Nor in fact, even in the cases of Vermont, Tennessee, New Jersey, Pennsylvania, and Illinois, do the restrictions upon the propofaJ of amendments interpose insuperable barriers. But when these provisions are combined with the requirement of a popular vote which is ordinarily impossible to obtain except upon questions of the greatest importance, as is done in Tennessee, the amending process becomes al- most useless. Even where the restrictions are not so stringent, but where two legislative actions are required and the legislative proposal of amendments restricted, the amending process is so slovc and cum- bersome as to prevent a ready adjustment of the fundamental law to changing conditions. It is the failure of voters to take sufQcient interest in amend- ments to vote either way upon them that often renders impossi- ble their enactment in states requiring a majority of those taking part in the election. Often a majority of those expressing them- selves are favorable to the amendment. In order to equalize the results of pojpular apathy or to make it effect change in- stead of the preservation of the status quo, various ingenius schemes have been devised by legislatures. Thus in Alabama in 1898 the official ballot had printed on it the words "For Birmingham amendment," and the voter was required to cross »0p. oit, 136-7. 350 STATE CONSTITUTION-MAKING. out the words if he disapproved the amendment.^ Says Pro- fessor Dodd, There is not. so far as can be seen, any objection to placing tbe burden upon those opposed to an amendment rather than upon those who favor it ; and certainly there can be no objection to the voter's being required to express himself either for or against a measure which is submitted to him for approval.' The second method of revising a constitution is by amend- Amendment ^^^^ proposed by popular initiative. The initiative for consti- by Popular tutional amendments does not differ in principle from the initia- tive for statutes, but in half of the twelve states permitting it, the petitions require the signatures of a larger proportion of the electorate." The number of signers required varies from eight per cent, of the legal voters of the state in Arkansas, Cal- ifornia, Colorado, Missouri and Oregon^ to twenty-five per cent, of the legal voters in each of not less than one-half of the coun- ties of the state in North Dakota. In Nevada not more than ten per cent, and in Michigan not less than ten per cent, are required.^ In Ohio, also, the requirement is ten per cent, with the additional stipulation that petitions must be filed from each of one-half of the counties of the state bearing signatures of not less than five per cent, of the electors of each county. Fif- teen per cent, of the legal voters must sign the petition in Ari- zona and Oklahoma; and the same proportion in Nebraska, where five per cent, of the voters in each of two-fifths of the counties must be included. In Arizona, Arkansas, California, Colorado, Michigan, Mis- souri, Nevada, Ohio and Oregon amendments proposed by pop- ular initiative are adopted by vote of a favorable majority of the votes cast for and against them. The same is true in Ne- braska, but the aflSrmative vote must equal thirty-five per cent, of the total vote cast in the election. No amendment substan- tially the same as one defeated can be submitted within three 'Acts of Ala., 1896-7, p. 1202 ; — upheld, Hardtoare Co. v. Birmingham, 123 Ala., 336 (1898). Concerning party endorsement of amendments, a more Im- portant method of getting votes for them, see, supra, pp. 80, 81n. »Dodd, op. cit., 192. 'Compare the following with the table showing the percentages required for statutes, supra, p. 189n. For constitution citations, see p. 346n. 'The same as for laws in each case. In Nev., also, the percentage Is the same. 'In Nev. and O. the Indirect Initiative probably Includes amendments, though In terms it applies to laws only. STATE CONSTITUTION-MAKING. 351 years. In Oklahoma the requirement is a majority of those taking part in the election, ordinarily a general election, but the governor and legislature may call a special election for the purpose. In North Dakota a majority of all the legal votes cast at a general election is necessary, upon obtaining which the proposed amendment must be referred to the next legislature, which may adopt it by vote of a majority of all the members elected to each house. If the legislature fails so to adopt it, the proposed amendment must again be submitted to the people at the next general election and if voted for by a majority of those taking part therein, it becomes part of the constitution. In considering the proposal of constitutional amendments by popular initiative the fact must not be forgotten that it is an additional and not the only method of amendment. All of the states having the initiative have also some form of legisla- tive proposal. The initiative simply gives the people a method of amending their fundamental law directly instead of through their representatives. The theoretical objections to direct leg- islation based on the assumption that distinction between con- stitutional and statute law ought to be preserved inviolate, do not, of course, apply to the initiative for amendments.^ The practical objections, chiefly the possible technical imperfection of proposals and their two great frequency, as well as the prac- tical advantages of j/robably increased constitutional conform- ance to the progress of the state and of the popular education resulting from increased popular control and responsibility, are essentially the same in each case. The third method of revising the constitutions is by the con- 3ii. " The Con- stitutional convention, elected by the people for the particular stitutionai _. ' J f f f Convention. purpose. Conven'tions may submit separate amendments to be voted upon by the people one by one or altogether. More char- acteristically, however, conventions meet to frame new instru- ments that are designed entirely to replace existing constitu- tions, though in general these are to a considerable extent copies of the old constitutions.* Even within recent times conventions have frequently pro- mulgated the results of their labors without submitting their 'There seems to be an Increasing tendency to initiate measures as amend- ments rather than statutes. *e. g., N. T., 1915. 352 STATE CONSTITUTION-MAKING. revision to a vote of the electorate." The usual practice is, how- ever, for the people to vote (1) upon the question of calling the convention;" (2) for delegates to the convention, and (3) upon the adoption or rejection of the work of the convention. Two states,' indeed, allow the legislature, of its own motion,, to call a convention." But the people must be consulted every- where else. Several constitutions provide in advance for a periodic submission to the voters of the question of holding a convention. Thus in New York, according to the constitution, of 1894,» at the general election to be held In the year one thousand nine iundred and sixteen, and every twentieth year thereafter, and also at such times as the legislature may by law provide, the question, "Shall there be a convention to revise the constitution and amend the same?" shall be. decided by the electors of the state ; and in case a majority of the elec- tors voting thereon shall decide in favor of a convention for such pur- pose, the electors of every senate district of the state, as then organized, sliall elect three delegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the sa,me election shall elect fifteen delgates-at-large. The delegates so elected shall convene at the capitol on the first Tuesday of April next ensuing after their election and shall continue their session until the business of such convention shall have been completed.' In addition to the periodic submission, the states requiring it, together with most of the others providing for conventions,- permit the legislature to submit to the electorate at any time* the question whether one shall be called. One of them, New »Miss. (1890) ; S. C. (1895) ; Del. (1897) ; La. (1898) ; Va. (1002). The Ky. convention of 1891, after having its work ratified by the people reconvened and adopted changes that were not submitted to the people. Except in the cases of Del. and Ky. the new constitutions disfranchised a large proportion of the negro voters and consequently the conventions feared to submit tnem to their votes. Instances have been known of submission to the electorate as de- fined by the instrument to be voted upon, as in Tenn. in 1835. »In accordance with an existing constitutional provision requiring It or authorizing the legislature to refer the matter to the people, or, in those states allowing the Initiative, upon a popular petition. 'Me., IV, Pt. Ill, 15; Ga., XIII, sec. I, 2. 'Two-thirds vote required. »XIV, 2. iQ. and Md. (XVI, 2, 3 ; XIV, 2) likewise have twenty-year intervals. Mich. (XVII, 4) provides for sixteen; la. (X, 3) for ten, and N, H. (II, 28, 99) for seven-year intervals. Okla. (XXIV, 2) ordains that the question must be sub- mitted at least once every twenty years and that a convention shall not be called except after a referendum to the electorate. =In all, 34 states. 'For taking the vote the next general election is often specified. STATE CONSTITUTION-MAKING. 353 Mexico, requires a vote of three-fourths of the members of each house, which, after the constitution has been in force twenty- five years shall be changed to two-thirds.* Two-thirds of each house or of the members elected to each house is the vote re- quired to submit the question in seventeen states^ and three- fifths in one, Nebraska." The others require simply a majority or a majority of all the members elected to each house. Ken- tucky,' however, requires such a vote by two consecutive legis- latures. Provisions concerning notice of election, the time for holding the election, et cetera, are frequently found in the constitutions. A majority of those voting upon the question is generally suffi- cient to authorize the convention,' but some states' require a majority of those voting at the election. Fourteen constitutions specify the votes necessary for the popular adoption of the convention's proposals — two-thirds of those voting on the subject in New Hampshire, a majority of those voting at the election in four states" and a majority of those voting on the question in the others.^ Five states^ pro- vide that the constitution adopted by the convention must be ratified, but specify no required majority. Various provisions governing the qualifications, election and apportionment of delegates to the convention and the action of the convention when assembled are found in the constitutions. Alabama' contains the interesting and prudent stipulation thai: nothing in the present constitution shall be construed as re- stricting the jurisdiction and power of the convention to estab- *Const. of 1910 (XIX, 2). =Cal., Colo.. Del., Fla., Ida., III., Kan., Minn., Mont, Nev., N. C, 0., S. C, S. D., Utah, Wash., Wyo. Del. does not require tlie governor's a^iproval. «258. 'Cal., Colo., Del., Fla., la., Mo., Mont., N. M., N. Y., O., Tenn., Va., W. Va., Wis. Ky., ii., adding that the aflarmative votes must equal one-fourth those cast at preceding general election. Several constitutions state the provision in- definitely. — Majority of votes cast (N. C, XIII, 1) ; "Majority of qualified voters of state present and voting at meetings" (N. H., II, 98) ; "Approved by the people" (Ariz., XXI, 2; OWa., XXIV, 2). =Ala., Ida., 111., Kan., Md., Mich., Minn., Neh., Nev., S. C, S. D., Utah., Wash., Wyo. »Colo., 111., Mont., Utah. lAriz., Cal., Md., Mich., Mo., Neb., N. Y.. O.. Okla. 2Ida., N. M., Wash., W. Va., Wyo. SXVIII, 286. 23 354 STATE CONSTITUTION-MAKING. lish such ordinances and do sucli things as it may deem proper for the purpose of alteration, revision or amendment.* The typical method of calling a convention, by a favorable vote of a majority of those voting for or against it on submis- sion of the question by the legislature, if followed by a popular vote upon the work of the convention, appears in all respects a correct method, of procedure. The theory of the convention is, of course, that it furnishes a deliberative representative body of citizens chosen by their fellows as the agents of the whole sovereign people to perform the most serious of all democratic governmental undertakings, the formation of organic law. It would seem to follow, as of course, that the work of these agents should be reviewed by the principals and be subject to rejection in part or as a whole if it is unsatisfactory." Tennessee Note. — The first section of the Tennessee constitution asserts the "unalienable and Indefeasible right" of the people "to alter, reform, or abolish the government in such manner as they may think proper." For constitutional revision two different methods are pre- scribed," (1) by amendments submitted by the legislature and (2) by calling a convention to "alter, reform or abolish" the constitution. The former method requires the proposal of amendments by vote of a ma- jority of the members of each house of the legislature, agreement of two-thirds of the members at the next session of the legislature and ratification at an election by a majority of the electors voting for rep- resentatives. The legislature may not propose amendments oftener than once in six years. A convention may be called by the peopJe at any time on submission of the question by the legislature and approval by a majority of those voting upon the subject. In 1915 the legislature' submitted the question of calling a conven- tion and undertooli to prescribe that the amendments passed by the pro- posed convention should be submitted separately to the voters for ap- proval or rejection. The Ohio convention of 1912 followed the similar directions prescribed for it. There has been considerable discussion, ♦Concerning the power of thu legislature calling a convention to determine ■what it shall do and concerning the legal position of the convention, see Dodd, op. cit., pp. 68, seg., and ch. 3 ; Jameson, op. clt. For an interesting dis- cussion of The Oonatitutional Convention, Preliminary Work, Procedure and Bubmission of Conclusions, by Professor Dodd, see Proceedings of Academy of Political Science, V, 54 (Oct., 1914). Sec also Tenn. Note hereto. "For current account of amendments adopted, sec the flies of the American PoUtical Science Review or the Political Science Quarterly. An Interesting analysis of the popular vote on constitutional and legislative proposals in the general election of 1914, prepared by Mr. E. B. Cushman was published as a Supplement to The 'New Repiiblio. Mar. 0, 1915 (II, 18, Pt. 2). »XI, 3. 'Public Acts of 1915, ch. 110, 111. STATE CONSTITUTION-MAKING. 355 however, as to whether such restrictions would be binding upon a con- vention that did not choose to fallow them.' The Tennessee constitution is silent upon the subject of the legisla- ture's power so to bind a constitutional convention and no ease has come before the supreme court for discussion. In a few states, however, failure on the part of conventions to obey the orders of the legislature has given the courts an opportunity to express themselves. The cases most precisely in point arose in Pennsylvania." , The con- stitution of 1838 contained no provision for calling ■ a convention. In 1872, however, the legislature, after submitting to the people the ques- tion whether a convention was desired, passed an act for calling one and specified that the constitution framed should be voted upon at an election held in the same manner as general elections. The convention, however, provided special election machinery of its own and thereupon an Injunction to prevent the^holdlng of the election was granted. The court declared that the convention had no power except that conferred by the act of the legislature. The argument was largely based upon the fact that the constitution in force did not provide for a constitutional convention ; consequently the convention called under the plenary power of the legislature was In every way subject to the legislative will.'" On the other hand, the Michigan convention of 1908 fixed a date for the submission of its work to the people different from the date ordered by the legislature, and a mandamus was granted compelling the secre- tary of state to act upon the convention's order.' The court was not agreed upon the reason for its action, but two of the judges declared that by necessary Implication the legislature Is prohibited from any control over the method of revising the constitution. The Minnesota court,^ holding that the state printer was not entitled by virtue of his position to do the printing required hy the convention, remarked that "even had the leglalaiture intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, It would have been an unauthorized and unwarrantable interference with the rights of that body. . . . The fact that the convention assembled by authority of the legislature renders it In no respect inferior thereto." More in point is the Mississippi dictum' that the legislature has no power to require a convention to submit Its work to a vote of the people. 'On this point, see Dodd, op. dt., ch. 3 ; Jameson, op, clt. Dodd criticises and seems to refute Jameson's contention that the legislature can bind the convention. 'Wells V. Bain, 75 Pa. St., 39 ; Wood's Appeal, ib., 59. "Voting for delegates to a convention after a legislative call containing re- strictions is. It has been argued In the Pa. and other cases, popular ratification of the restrictions. Obviously, however, the voters are unable to express them- selves upon both candidates for offices that are to be filled anyway, and ques- tions of the candidates' action after election. ^Carton v. Secretary of State. 151 Mich., 337. "aoodHch V. Moore, 2 Minn., 61 (1858). ^Spoule V. Fredericlca, 69 Miss., 898 ; see, also, Diclcaon v. State, 74 Miss., 227 ; Loomts \. Jackson, 6 W. Va., 613. 356 STATE CONSTITUTION-MAKING. The Kentucky convention of 1890-91 and' the Virginia convention of 1901-02 assembled as a result of legislative acts requiring that the changes proposed in the constitutions should be submitted to the people. Both conventions disobejed the order, but no judicial action arose until after the new instruments had gone into effect. The courts then held that inasmuch as the state government was acting under them they could not question their validity.* It is diflScult to see how courts act- ing under a constitution could declare it invalid without invalidating their own decisions. Without attempting to mention every case bearing upon the ques- tion of the legislature's power to hind a convention, it may be said that the paucity of judicial pronouncements makes hazardous any pre- diction as to how the court of a particular state would answer the ques- tion. The weight of judicial opinion, however, as well as the opinion of students of government, indicates that a Tennessee constitutional convention Is independent of the legislature and may disregard its in- structions. After an amendment to the constitution has been ratified by the peo- ple the courts are slow to declare it invalid for technical irregularities. Thus in 1865 an unofficial convention, assembled for another purpose, submitted amendments to an electorate of its own choosing. Neverthe- less, the court, after remarking that in order to understand the nature of the problem before it, note must be taken of the disturbed condition of the country at the time, held the amendments valid and a part of the constitution." 'Miller v. Johnson, 92 Ky., 589 ; Taylor v. Commonwealth, 101 Va., 829. 'Bidley v. Sherirook, 43 Tenn., 569 (1866). PART III. TENNESSEE PROBLEMS. PART III. TENNESSEE PROBLEMS. CHAPTER XXIII. Public Opinion and Constitutional Amendments.^ In order to ascertain what is the state of public opinion 3^2 upon a given subject, obviously it is necessary to consult a large pu^ie^ "^ proportion of the individuals who compose the public. It is opinion, true, however, as President Lowell says,^ that the intense, ear- nest advocacy of a very few people may become true public opin- ion in the face of an indifferent multitude, and that this opinion may be taken as representative of what the many would call for were they so acquainted with conditions as to feel any desire either for or against the particular proposition. Just in what par- ticulars the Tennessee constitution may need alteration is scarcely a question upon which the majority of men and women of the state have taken time to inform themselves and conse- quently to possess an opinion. But there are many citizens who have given evidence of especial interest in public questions gen- iConcernlng Tenn. constitutional needs as discussed a decade and more ago, see Caldwell, J. W., Constitutional History of Tennessee, ch. XIII. The Pro- ceedings of the annual meetings of the Bar Association of Tennessee contain a number of Interesting papers and reports, — Hood. E. N., Constitutional Conven- tion, 1887, p. 184 ; Fentress, Francis, Borne Needed Changes in Our State Con- stitution, 188, p. 188 ; Shepherd, S. J., Evils of the Present System of Taxation, 1889, p. 130; Malone, J. H., Necessity for Revision of Our Laws Tjoth Consti- tutional and Statutory, 1893, p. 167 ; Caldwell, J. W., Constitution-Making in Tennessee, 1894, p. 72 ; Malone, J. H., President, Address, 1902, p. 37 ; Reports of Committees to agitate the calling of a constitutional convention, 1895, p. 2i, 1896, p. 33 (see, also, p. 39), 1897, p. 51 (see, also, p. 61). Pamphlets, — Mano- gue, R. E., Why Tennessee Needs a New Constitution, (1897) ; Milton, G. F., Constitution of Tennessee, 1897. Several articles in The Taxpayer, 1895-6. Recent pamphlets, — Malone, J. H., Why Tennessee Needs a New Constitution ; McWhorter, .T. L., Wliat is the Matter with Tennessee; Acklen, J. H., The Work- ingman in Politics. See, also Oovernmental Reorganization, a Constitutional Need in Tennessee, hy the present writer, Tenn. Hist. Maga., II, 89. 'Public Opinion and Popular Oovernment, ch. 1. (359) / 360 STATE CONSTITUTION-MAKING. erally and in the revision of the constitution at the present time and whose thoughts may therefore be considered as somewhat typical of the public opinion, actual or potential, of the elec- torate at large. For the preparation of this chapter, therefore, about one hundred and seventy-five such citizens were asked to state the half-dozen ways in which they thought the state constitution stood most in need of amendment.^ From the varied and in- teresting, though not very numerous, replies received, and also from newspaper remarks and general sources of information, the following are believed to be the constitutional reforms most in demand at the present time, — (1) A change in the tax system; (2) Changes in county gov- ernment; (3) Abolition of the system of remunerating county officials by fees; (4) Various changes in machinery for the ad- I ministration of justice; (5) Changes in the constitutional pro- visions governing the legislature and legislation, notably the abolition of special legislation for cities and counties, and (6) An increase in the functions and powers of the governor and administrative departments of the state. In addition to the suggestions for the accomplishment of which constitutional changes are necessary, many correspondents insist that the con- I stitution should contain provisions requiring certain reforms, I especially the abolition of the fee system. The repeated failure ■ of the legislature to enact some of these reforms has doubtless furnished a very reasonable argument for making them manda- tory by the state's organic law. The most fundamental and far-reaching of the suggestions 313. for tax refofm urged that the constitution should contain no pbstacle to the introduction of the single tax upon land values so soon as the people should desire it. This proposal was frankly coupled with the advocacy of the changes in land holding in- herent in the single tax philosophy.* More in keeping with the trend of present-day opinion, however, was the advocacy, on the part of several correspondents of the separation of the "The persons selected were believed to be men who would have opinions ; 56 answers were received and also a number of letters statins; that the writers were without opinions or did not wish to state them. There were 19 replies from lawyers, 11 from business men and bankers, 7 from editors, 4 from educa- tors, is miscellaneous. *See Henry George, Progress and Poverty. STATE CONSTITUTION-MAKING. 361 sources of state and local revenue. The constitution should, to quote one of them, authorize changes in our laws controlling taxation, so that the state would get all of its revenue from the taxation of public utilities, com- panies and corporations, including resident and non-resident insurance companies, and privileges of all kinds, and provide that no county tax of any kind should be levied upon this class of property. Then let the counties provide for the assessment and collection of all property with- in their limits, but [letj the taxation of personal property, such as notes, securities, etc., be placed upon an income basis, and not . . . exceed for both county and municipalities ten per cent of the income. The classification of property for taxation at different rates seems to be generally urged by business men. As a prominent banker puts it, the Constitution should permit the Legislature of Tennessee to exempt from taxation certain classes of property and to classify the property and tax it at a different per centum. Many would doubtless exempt intangible property entirely be- cause it has no intrinsic value and its taxation must result in a second taxation of the same value.^ Double and even triple or quadruple taxation is sometimes required by the present tax system. The exemption of Tennessee state and local bonds is advocated in order that there may be a home market for them and that they may be floated at low interest rates. On the other hand many people seem to continue their faith in the general property tax and seek rather to strengthen it by decreasing the number of exemptions and rendering more eflS- cient its administration. Greater freedom of localities in tax matters, limitations of the rate for all purposes to one per cent. and the exemption of unrained minerals and standing timber were among the other proposals." There seems to be some public opinion in favor of other ^,^314. financial reforms, especially the prohibition of city and county bond issues except when authorized by vote of the local elec- "An exception to this statement may be found in the value o( an increased circulating medium which the Issuance of inherently valueless bank notes, for instance, creates. The value lies in convenience not in property. "The testiniony of numerous citizens and officials is found in the Proceedings of the Public Meetings of the Committee to Investigate Assessment and Taxa- tion (1915) — in the office of the. state archivist. See also Report of the Com- mittee. 362 STATE CONSTITUTION-MAKING. torate and a constitutional limit of the amount of such issues to a fixed proportion of the assessed value of the property with- in the city or county. The following is a statement of a sig- nificant but infrequent proposal, — The financial officers of the state — the Governor, Treasurer and Comp- troller — should be required to prepare and present to the General As- sembly at the beginning of each session a "budget" of necessary appro- priations that should be made to maintain the state government till the meeting of the next legislature. The method and system of the Eng- lish Parliament should be follov^ed, as far as iwssible. That there should.be changes made in the present system c mft ^^ county government appears to be the nearly universal belief. Government. Many favor putting an end to legislative control over county affairs by means of special laws and the limitation of legislative enactment to statutes either of universal application for county government or else applying to classes of counties determined by the constitution. Others would accord to counties the power to legislate in their own behalf on such purely local mat- ters as stock, fence and road laws. A few people mention the advisability of reducing the number of officers and courts in the smaller counties.^ No one denies that the county court as at present constituted is too unwieldly for an administrative agency, but there is dis- agreement as to whether it should be reduced by means of de- creasing the number of civil districts in the county,' by creat- ing a small executive board to act under supervision of the court,^ or whether it should be superseded by straight-out com- mission government. "Abolish the County Court," says one cor- respondent, and in its stead, elect three to five commissioners, (according to size of County) to conduct the finances of the County ; no man to be quali- fied to run for the oflSce of County Commissioner until he has first passed a Civil Service examination to be held by a State Board of Ex- aminers, (appointed by the Governor) ; examinations to be held by said Board once each year In the County seat. Those only, who successfully pass such examination to be eligible to run for the office. 'See especially VI, 13, la : VII, 1. 'The court Is composed of district representatives, usually upwards of 20. In practice Its work is done by committees, similar to legislative committees. 'Shelby Co. (Private Acts of 1911, ch. 237) has a board of county com- missioners, with specified powers, in addition to its county court. STATE CONSTITUTION-MAKING. 363 Among other suggestions, are longer terms of office and in- creased supervision over local affairs, especially the local per- formance of such state functions as law enforcement, by the state administrative officials. Probably no change is more widely insisted upon than the 3i6. abolition of the fee system of remunerating county officials. In- ^^ ^^ ^™' stances are on record of fees to a single official running above 150,000 a year.^ The county court clerk of one of the larger counties is reported to have testified before a recent state com- mittee that he was well satisfied with his job and to have inti- mated that if the state would only let the fee system alone while his term should continue, he would be financially well-fixed for life.^ Estimates of the amount of fees made by private in- dividuals have frequently been criticised as excessive by incum- bents in office, but the latter have shown little disposition to disclose the extent of the excess. Indeed, the feeling seems to be widespread among local office-holders that it is none of the public's business to know how public offices are run, but that election to office gives the successful candidates a sort of privi- lege to live on the public and take all they can get during their terms. The fee problem thus becomes one of great importance from the point of view of administration. Opinion is divided between allowing all officers a specified salary on the one hand, and on the other hand permitting them to receive their present fees, but requiring them to pay into the public treasury all over a certain amount. Says a recent editorial. If a constitutional convention should accomplish nothing more than a ' reformation of the fee system it would amply justify Itself.* Discontent with the present administration of justice seems 3i7. to be shared by nearly everyone who has considered the matter, tion of It extends from the jury system — especially the requirement that jurymen cannot be drawn from an outside county," — to the highest court of the state. One correspondent says, *After nearly a year spent In investigation of the fee system, the tax com- mission of the Tennessee Manufacturers' Association so reported in 1914. See, e. g.. Journal and Tribune, Sept. 20. "Proceedings of the Public Meetings of the Committee to Investigate Assess- ment and Taxation (1915), p. 129. eace, and also from paying a free poll tax. Sec. 2. (Identical save for comma after "suffrage"). Sec. 3. C Identical save for no commas after "shall" or "felony"). Sec. 4. (identical save semicolon after "voce" ; no italics) . Article V. Article 5. impeachments. Section 1. Impeachment. — The House of Representatives shall have the sole power of Impeachment. Sec. 2. Trird by the Senate. — All im- peachments shall be tried by the Senate. When sitting for that purpose the Sen- ators shall be upon oath or affirmation, and the Chief Justice of the Supreme Court, or if he be on trial, the senior associate judge, shall preside over them. No person shall be convicted without the concurrence of two-thirds of the Sena- tors sworn to try the officer impeached. impeachments. Sec. 1. (Identical). Sec. 2. Tried iy the Senate. — All im- peachments shall be tried by the senate ; when sitting for that purpose, the sena- tors shall be upon oath or affirmation. No person shall be convicted without the concurrence of two thirds of the sena- tors sworn to try the officer impeached. STATE CONSTITUTION-MAKING. 421 Constitution of 1796. — (Cont'd.) Sect. 2d. Electors. — Electors shall in all cases except treason, felony or breach of the peace be privileged from arrest during their attendance at elections and In going to and returning from them. NoETH Carolina Const., 1776. — (Cont'd.) preceding the day of any election, and shall have paid public taxes, shall be en- titled to vote for members of the House of Commons for the county in which he resides. IX. The Same. — That all persons pos- sessed of a freehold in any town in this State, having a right of representation, and also all freemen, who have been in- habitants of any such town twelve months next before, and at the day of election, and shall have paid public taxes, shall be entitled to vote for a member to represent such town in the House of Com- mons : — Provided always, That this sec- tion shall not entitle any inhabitant of such town to vote for members of the House of Commons, for the county in which he may reside, nor any freeholder in such county, who resides without or beyond the limits of such town, to vote for a member for said town. Sect. 3d. Elections. — All shall be by ballot. elections Article 4th. IMPEACHMENTS. Sect. 1st. (Identical). Sect. 2d. Tried by the senate. — All impeachments shall be tried by the sen- ate. When sitting for that purpose the senators shall be upon oath or affirma- tion. XXIII. Itnpcaohnwnt and prosecution. — That the Governor, and other officers, ofCending against the State, by violating any part of this Constitution, mal-admln- istratlon, or corruption, may be prose- cuted, on the impeachment of the Gen- eral Assembly, or presentment of the Grand Jury of any court of supreme jurisdiction in this State. 422 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) Sec. 3. How prosecuted. — ^Th€ House of Representatives shall elect from their own body three memhers, whose duty it shall be to prosecute impeachments. No impeachment shall be tried until the Legislature shall have adjourned sine die, when the Senate shall proceed to try such impeachment. Sec. 4. Who may 6e impeached. — The Governor, judges of the Supreme Court, judges of inferior courts, chancellors, at- torneys for the State, Treasurer, Comp- troller and Secretary of State, shall be liable to impeachment, whenever they may, in the opinion of the House of Rep- resentatives, commit any crime in their official capacity "which may require dis- qualification ; but judgment shall only extend to removal from office, and dis- qualification to fill any office thereafter. The party shall, nevertheless, be liable to Indictment, trial, judgment and pun- ishment according to law. The Legislature now has, and shall continue to have, power to relieve from the penalties imposed, any person dis- qualified from holding office by the judg- ment of a court of impeachment. Sec. 5. Officers liable to indictment. — Justices of the peace, and other civil offi- cers, not hereinbefore mentioned, for crimes or misdemeanors in office, shall be liable to indictment in such courts as the Legislature may direct; and upon conviction, shall be removed from office by said court, as if found guilty on im- peachment ; and shall be subject to such other punishment as may be prescribed by law. Constitution of 1834. — (Cont'd.) Sec. 3. (Identical save for commas after "elect" and "adjourned" ; one para- graph only; no italics). Sec. 4. Who may 6e impeached. — The governor, judges of the supreme court, judges of Inferior courts, chancellors, at- torneys for the State, and secretary of state, shall be liable to impeachment, whenever they may, in the opinion of the house of representatives, commit any crime in their official capacity which may require disqualification; but judgment shall only extend to removal from office, and disqualification to fill any office thereafter. The party shall, nevertheless, be liable to indictment, trial, judgment and punishment, according to law. Sec. 5. (Identical save for comma after "office"). Aeticle VI. JUDICIAL DEPARTMENT. Sec. 1. Judicial poicer. — The judicial power of this State shall be vested in one Supreme Court and In such Circuit, Chancery and other Inferior courts as the Legislature shall from time to time, or- dain and establish ; in the judges thereof, and in justices of the peace. The Leg- islature may also vest such jurisdiction in corporation courts as may be deemed necessary. Courts to be holden by jus- tices of the peace may also be estab- lished. Abticle 6. .lUDICIAL DEPABTMENT. Sec. 1. Judicial power. — The judicial power of tils State, shall be vested in one supreme court, in such inferior courts as the legislature shall from time to time ordain and establish, and the judges thereof, and In justices of the peace. The legislature, may also vest such jurisdiction as may be deemed nec- essary in corporation courts. STATE CONSTITUTION-MAKING. 423 Constitution of HQQ.— {Cont'd.) Nobth Carolina Const., 1776. — (Cont'd.) Sect. 3d. How convicted. — No person shall be convicted, without the concur- rence of two thirds of the members of the whole house. Sect. 4th. WJm may ie impeached. — The governor, and all civil officers un- der this State shall be liable to impeach- ment for any misdemeanor in office, but judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit under this State The party shall nevertheless in all cases be liable to indictment, trial, judgment and punishment according to law. Article 5th. judicial department. Sect. 1st. Judicial poioer. — The ju- dicial power of the State shall be vested in such superior and inferior courts of law and equity, as the legislature shall from time to time direct and establish. 424 STATE CONSTITUTION-MAKING. Constitution op 1870. — (Cont'd.) Sec. 2. Supreme Court. — The Supreme Court shall consist of five judges, of whom not more than two shall reside In any one of the grand divisions of the State. The judges shall designate one of their own number who shall preside as Chief Justice. Th? concurrence of three of the judges shall in every case be necessary to a decision. The jurisdiction of this court shall be appellate only, un- der such restrictions and regulations as may from time to time be prescribed by law ; but it may possess such other juris- diction as is now conferred by law on the present Supreme Court. Said Court shall be held at Knoxville, Nashville and Jackson. Sec. 3. Election of judges; qualifica- tions. — The Judges of the Supreme Court shall be elected by the qualified voters of the State. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every judge of the Supreme Court shall be thirty five years of age, and shall before his elec- tion have been a resident of the State for five years. His term of service shall be eight years. Sec 4. Judges of inferior courts. — The judges of the Circuit and Chancery Courts, and of other inferior courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every judge of such courts shall be thirty years of age, and shall be- fore his election, have been a resident! of the State for five years, and of the cir- cuit or district one year. His term of service shall be eight years. CoNSTiTOTiON OF 1834. — (Cont'd.) Sec. 2. Supreme Court. — The supreme court shall be composed of three judges, one of whom shall reside in each of the grand divisions of the State; the con- currence of two of said judges shall in every case be necessary to a decision. The jurisdiction of this court shall be appellate only, under such restrictions and regulations as may from time to time be prescribed by law ; but it may possess such other jurisdiction as is now con- ferred by law on the present supreme court. Said courts shall be held at one place, (and at one place only) in each of the three grand divisions in the State. Sec. 3. Election of judges; qualifica- tions. — The general assembly shall, by joint vote of both houses, appoint judges of the several courts of law and equity ; but courts may be established to be holden by justices of the peace. Judges of the supreme court shall be thirty five years of age, and shall be elected for the term of twelve years. Sec. 3, as Amended in 1853. Section 3d. The judges of the su- preme court shall be elected by the quali- fied voters of the State at large, and the judges of such inferior courts as the leg- islature may establish, shall be elected, by the qualified voters residing within the bounds of any district or circuit to which such inferior judge or judges either of law or equity may be assigned, by ballot, in the same manner that mem- bers of the general assembly are elected. Courts may be established, to be holden by justices of the peace. Judges of the supreme court shall be thirty five years of age and shall be elected for the term of eight years. Sec. 4. .Judges of infei-ior courts. — The judges of such inferior courts, as the legislature may establish, shall be thirty years of age, and shall be elected for the term of eight years. STATE CONSTITUTION-MAKING. 425 Constitution of 1796. — (Cont'd.) North Carolina Const., 1776. — (Cont'd.) Sect. 2d. Election of judges. — The general assembly shall by joint ballot of both houses appoint judges of the several courts of law & equity, also an attorney or attorneys for the State who shall hold their respective offices during good be- havior. XIII. Election of Judges. — ^That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supi'eme Courts of Law and Elquity, Judges of Admiralty, and Attorney-Gen- eral, wio shall be commissioned by the Governor, and hold their -offices •during good behavior. 426 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) Sec. 5. Attorney-general and Reporter. — An Attorney-general and Reporter for the State sball he appointed by the judges of the Supreme Court and shall hold his office for a term of eight years. An at- torney for the State for any circuit or district, for which a judge having crim- inal jurisdiction shall be provided by law, shall be elected by the qualified voters of such circuit or district; and shall hold his office for a term of eight years, and shall have been a resident of the State five years, and of the circuit or district one year. In all cases where the attorney for any district fails or re- fuses to attend and prosecute according to law, the court shall have power to ap- point an attorney pro tempore. Sec. 6. Judges and attorneys, how re- moved. — Judges and attorneys for the , State may be removed from office by a concurrent vote of both houses of the General Assembly, each house voting separately; but two-thirds of the mem- bers to which each house may he en- titled must concur in such vote. Th€- vote shall be determined by ayes and noes, and the names of the members, voting for or against the judge or attor- ney for the State together with the causei of causes of removal, shall be entered on the journals of each house respectively. The judge or attorney for the State, against whom the Legislature may be about to proceed, shall receive noti«! thereof accompanied with a copy of thti causes alleged for his removal, at least ten days before the day on which either house of the General Assembly shall act thereupon. Sec. 7. Compensation of judges. — The judges of the Supreme or inferior courts, shall, at stated times, receive a compen- ■ satlon for their services, to be ascer- tained by law, which shall not toe In- CoNSTiTUTioN OF 1834. — (Cont'd.) Sec. 5. Attorneys. — The legislature shall elect attorneys for the State, by joint vote of both houses of the general assembly, who shall hold their offices for the term of six years. In all cases where an attorney for any district fails or re- fuses to attend, and prosecute according to law, the court shall have power to appoint an attorney pro tempore. Section .5, as Amended in 1853. Section 5th. An Attorney General for the State, shall be elected by the qualified voters of the State at large, and the at- torney for the State for any circuit or district to which a judge of an inferior court may be assigned, shall be elected by the qualified voters within the bounds of such district or circuit, in the same manner that members to the general as- sembly are elected; all said attorneys, both for the State and circuit or dis- trict, shall hold their offices for the term of six years. In all cases where the at- torney for any district fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore. Sec. 6. Judges and attorneys, how re- moved: — Judges and attorneys for the State, may be removed from office by a concurrent vote of both houses of the general assembly, each house voting sepa- rately; but two thirds of all the mem- bers elected to each house, must concur in such vote: the vote shall be deter- mined by ayes and noes, and the names of the members voting for or against the judge or attorney for the State, together with the cause or causes of removal, shall be entered on the journals of each house respectively. The judge or attor- ney for the State against whom the leg- islature may be about to proceed, shall receive notice thereof, accompanied with a copy of the causes alleged for his re- moval, at least ten days before the day on which either house of the general as- sembly shall act thereupon. Sec. 7. Compensation of judges. — The judges of the supreme and inferior courts, shall, at stated times, receive a compensation for their services, to be as- certained by law. which shall be not in- STATE CONSTITUTION-MAKING. 427 Constitution of 1796. — (Cont'd.) Nokth Oabolina Const., 1776.^ — {OonVd.) Sect. 3i). Compensation of judges. — The judges of the superior court shall at stated times receive a compensation for their services to be ascertained by law but shall not be allowed any fees or per- 428 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cmit'd.) creased or diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office nor hold any other office of trust or profit under this State or the United States. Sec. 8. Jurisdiction of inferior courts. — The jurisdiction of the Circuit, Chan- cery and other inferior courts, shall be as now established by law, until changed by the Legislature. Sec. a Judge's charge. — The judges shall not charge juries with respect to matters of fact, but may state the tes- timony and declare the law. Constitution of 1834. — (Cont'd.) creased or diminished, during the time for which they are elected. They shall not be allowed any fees or prequisites of office, nor hold any other office of trust or profit under this State, or the United States. Sec. 8. Jurisdiction of inferior courts. — The jurisdiction of such inferior courts, as the legislature may from time to time establish, shall be regulated by law. Sec 9. (Identical save that "judges" is the first word). Seo. 10. Certiorari. — Judges or jus- tices of the inferior courts of law and equity, shall have power in all civil caees to issue writs of certiorari to re- move any cause or the transcript of the record thereof, from any inferior juris- diction into such court of law on suffi- cient cause, supported by oath or affirma- tion. Sec 11. Incompetency of judges; spe- cial judges. — No judge of the Supreme or inferior courts shall preside on the trial of any cause in the event of which he may be interested, or wliere either of the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in which he may have been of coun- sel, or in which he may have presided in any inferior court, except by consent of all the parties. In case all or any of the judges of the Supreme Court shall thus be disqu.alifled from presiding on the trial of any cause or causes, the court, or the judges thereof, shall certify the same to the Governor of the State, and he shall forthwith specially commission the requisite number of men, of law knowledge, for the trial and determina- tion thereof. The Legislature may by general laws make provision that spe- cial judges may be appointed, to hold any Sec. 10. Certiorari. — ^The judges or justices of such inferior courts of the law as the legislature may establish, shall have power, in all civil cases, to issue writs of certiorari to remove any cause, or transcript thereof, from any inferior jurisdiction, into said court, on sufficient cause, supported by oath or affirmation. Sec. 11. Incompetency of judges; spe- cial judges. — No judge of the supreme or inferior courts, shall preside on the trial of any cause, in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in \s-'hich he may have been of counsel, or in which he may have presided in any inferior court, except by the consent of all the parties. In case all or any of the judges of the supreme court shall be thus disqualified from presiding on the trial of any cause or causes, the court, or the judges thereof, shall certify the same to the governor of the State, and he shall forthwith specially commission the re- quisite number of men of law knowledge, for the trial and determination thereof. In case of sickness of any of the judges of the supreme or inferior courts, so that they or any of them are unable to STATE CONSTITUTION-MAKING. 429 Constitution of 1106.— (Cont'd.) North Carolina Const., 1776. — (Cont'd.) quisites of office nor shall they hold any- other office of trust or profit under this state or the United States. Sect. 4th. Jurisdiction of Judges of Superior Courts. — The judges of the su- perior courts shall be justices of oyer and terminer and general jail delivery throughout the State. Sect. 5th. Judge's charge. — The judges of the superior and inferior courts shall not charge juries with respect to matters of fact, but may state the testi- mony and declare the law. /Sect. 6th. Certiorari, Superior Courts. — The judges of the superior courts shall have power in all civil cases, to Issue writs of certiorari to remove any cause or a transcript thereof from any in- ferior court of record into the superior on sufficient cause supported by oath or affirmation. Sect. 7th. Certiorari, Inferior Courts. — The judges or justices of the inferior courts of law shall have power in all civil cases to issue writs of certiorari to re- move any cause or transcript thereof from any inferior jurisdiction into their court on sufficient cause supported by oath or affirmation. Sect. 8. Incompetency of judges; spe- cial judges. — No judge shall sit on the trial of any cause, where the parties shall be connected with him by affinity or consanguinity except by consent of parties. In case all the judges of the superior court shall be interested In the event of any cause, or related to all' or either of the parties the governor of the State shall in such case, specially com- mission three men of law knowledge for the determination thereof. 430 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) courts the judge of which shall be un- able or fall to attend or sit ; or to hear any cause In which the judge may be In- competent. Sec. 12. Process; conclusion of indict- ments. — All writs and other process shall run In the name of the State of Tennes- see, and bear test and be signed by the respective clerks. Indictments shall con- clude, "against the peace and dignity of the State." Constitution of 1834. — (Cont'd.) attend, the legislature shall be author- ized to make provision by the general laws, that special judges may be ap- pointed to attend said courts. Sec. 12. (Identical save no comma after "conclude" ; quotation mark at end omitted). Sec. 13. Clerics of court. — Judges of the Supreme Court shall appoint then- clerks who shall bold their offices for six years. Chancellors shall appoint their clerks and mastei-s, who shall hold their offices for six years. Clerks of in- ferior courts holden in the respective counties or districts, shall be elected by the qualified voters thereof for the term of four years. Any clerk may be re- moved from office for malfeasenoe Incom- petency or neglect of duty. In such man- ner as may be prescribed by law. Sec. 14. Fmes. — No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact. If they think the fine should be more than fifty dollars. Sec 15. Civil districts; Justices of the Peace; Constables. — The different coun- ties of this State shall be laid off, as the General Assembly may direct, into dis- tricts of convenient size, so that the whole number in each county shall not be more than twenty-five, or four for every one hundred square miles. There shall be two justices of the peace and one constable elected in each district by the qualified voters therein, except dis- tricts including county towns, which shall elect three justices and two con- stables. The jurisdiction of said officers shall be coextensive with the county. Jus- tices of the peace shall be elected for the term of six, and constables for the term of two years. Upon removal of either of said oflJcers from the district Sec. 13. Clerks of court. — Judges of the supreme court shall appoint their clerks, who shall hold their offices for the period of six years. Chancellors (if courts of chancery shall be established) shall appoint their clerks and masters, who shall hold their offices for the period of six years. Clerks of such inferior courts as may be hereafter established, which shall be required to be holden in the respective counties of this State, shall be elected by the qualified voters there- of, for the term of four years ; they shall be removed from office, for malfeasance, Incompetency, or neglect of duty, in such manner as may be prescribed by law. Sec 14. (Identical save for comma after "State" and semicolon after "dol- lars"). Sec 15. (Identical save for comma after "district" and none after "towns" ; counties "in" this state, not "of" ; upon "the" removal ; "twenty, five" not hyphe- nated). STATE CONSTITUTION-MAKING. 431 Constitution of 179G. — (Cont'd.) North Carolina Const., 1776. — (Cont'd.) Sect. 9th. (Identical save that tbere is a comma after "process" and one after "conclude" ; no comma after "Tennes- see" ; "teste" instead of "test" ) . Sect. IOth. Clerks of court. — Each court shall appoint Its own clerk who may hold his office during good behavior. XXXVI. Form of Commissions, in- dictments, etc. — That all commissions and grants shall run in the name of the State of North Carolina, and bear test, arid be signed by the Governor. All writs shall run in the same manner, and bear test, and be signed by the Clerks of the respective Courts. Indictments shall con- clude, Against the peace and dignity of the State. Sect. 11th. Fines. — No fine shall be laid on aiiy citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers who shall assess the fine at the time they find the fact, if they think the fine ought to be more than fifty dollars. Sect. 12th. Justices of the peace. — There shall be justices of the peace ap- pointed for each county, not exceeding two for each captains company, except for the company which includes the county town which shall not exceed three, who shall hold their ofiices during good behavior. XXXIII. Justices of the Peace — That the Justices of the Peace, within their respective counties in this State, shall in future be recommended to the Governor for the time being, by the Represntatives in General Assembly; and the Governor shall commission them accordingly: and the Justices, when so commissioned, shall hold their offices during good behavior, and shall not be removed from office by the General Assembly, unless for mis- behavior, absence, or inability. 432 STATE CONSTITUTION-MAKING. Constitution of 1796. — (Cont'd.) in which he was elected, his office shall become vacant from the time of such re- moval. Justices of the peace shall be commissioned by tTie Governor. The Legislature shall have power to provide for the appointment of an additional number of justices of the peace in in- corporated towns. NOBTH Caeolina CowsT., 1776. — (Cont'd.) Article VII. Article 7. STATE AND COUNTY OrFICEES. Sec. 1. Justices and constahles, ti/um- ber of; removal of county officers. — ^There shall be elected in each county, by the 'qualifled voters therein, one sheriff, one trustee, one register ; the sheriff and trus- tee for two years, and the register for four years ; but no person shall be eligible to the office of sheriff more than six years in any term of eight years. There shall be elected for each county by the justices of the peace, one coroner, and one ranger who shall hold their offices for two years; said officer shall be re- moved for malfeasance, or neglect of duty, in such manner as may be pre- scribed by law. 'Sec 2. Vacancies, how filled. — Should a vacancy occur, subsequent to an elec- tion, in the office of sheriff, trustee or register, it shall be filled by the justices ; if in that of the clerks to t^e elected by the people, it shall be filled by the courts ; and the person so appointed shall con- tinue in office until his successor shall be elected and qualified ; and such office shall be filled by the qualified voters at the first election for any of the county offi- cers. Sec 3. Treasurer and Comptroller. — There shall be a Treasurer or Treasurers and a Comptroller of the Treasury ap- pointed for the State, by the joint vote of both houses of the General Assembly, who shall hold their offices for two yeai's. Sec 4. Other elections and vacancies. — The election of all officers and the fill- ing of all vacancies not otherwise di- rected or provided by this Constitution shall be made in such manner as the Legislature shall direct. STATE AND COUNTY OFFICERS. Sec 1. Election and removal of county officers. — ^There shall be elected in each county, by the qualified voters therein, one sheriff, one trustee, and one register ; the sheriff and trustee for two years, and the register for four years : Provided, that no person shall be eligible to the office of sheriff more than six years in any term of eight years. There shall be elected for each county, by the justices of the peace, one coroner, and one ranger, who shall hold their offices for two years. Said officers shall be removed for mal- feasance, or neglect of duty, in suet man- ner as may be prescribed by law. Sec 2. (Identical save for no comma after "occur" and comma after "trustee" and "appointed"). Sec 3. Treasurer. — There shall be a treasurer or treasurers appointed for the State, by the joint vote of both houses of the general assembly, who shall hold his or their offices for two years. Sec. 4. Other clcctwits and vacancies. — The election of all officers, and the fill- ing of all vacancies that may happen, by death, resignation or removal, not other- wise directed or provided for by this con- stitution, shall be made in such manner as the legislature shall direct. STATE CONSTITUTION-MAKING. 433. Constitution of 1870. — (Cont'd.) Constitution of 1834. — (Cont'd.) Aeticle 6th. state and county officees. Sect. 1st. Appointment and Continu- ance of Officers. — There shall be ap- pointed iu each county by the county court, one sheriff, one coroner, one trus- tee and a sufficient number of constables who shall hold their offices for two years. They shall also have power to appoint one Register and Ranger for the county who shall hold their offices during good behavior : The Sheriff and Coroner shall be commissioned by the Governor. XXXVXII. County officers — That there shall be a Sheriff, Coroner or Co- roners, and Constables, in each county within this State. Sect. 2d. Treasurer. — ^There shall be a treasurer or treasurers appointed for the State who shall hold his or their office for two years. XXII. Treasurer— Thsit the General Assembly shall, by joint ballot of both Houses, annually appoint a Treasurer or Treasurers for this State. Sect. 3d. Other Officers. — ^The appoint- ment of all officers not otherwise directed by this constitution shall be vested in the legislature. 28 434 STATE CONSTITUTION-MAKING. Constitution of 1870. — '(Cont'd.) Sec. 5. Time of election of civil offi- cers; terms; temporary appointments. — Elections for judicial and other civil offi- cers shall be held on the first Thursday in August, one thousand eight hundred and seventy, and for-ever thereafter on the first Thursday in August next pre- ceding the expiration of their respective terms of service. The term of each offi- cer so elected shall be computed from the first day of September next succeeding his election. The term of office of the Governor and of other executive officers shall be computed from the fifteenth of January next after election of the Gov- ernor. No appointment or election to fill a vacancy shall be made for a period ex- tending beyond the unexpired term. Ev- ery officer shall hold his office until his successor Is elected or appointed, and qualified. No special election shall be held to fill a vacancy in the office of judge or district attorney, but at the time herin fixed for the biennial election of civil officers ; and such va- cancy shall be filled at the next bien- nial election recurring more than thirty days after the vacancy occurs. Constitution of 1834. — (Cont'd.) Sec. 5. Time of election of civil offi- cers. — The legislature shall provide that the election of the county and other offi- cers by the people, shall not take place at the same time, that the general elec- tions are held for members of Congress, members pf the legislature and governor. The elections shall commence and termi- nate on the same day. Abticle VIII. MILITIA. Sec. 1. Militia officers. — All militia officers shall be elected by persons sub- ject to military duty, within the bounds of their several companies, battalions, regiments, brigades and divisions, under such rules and regulations ,as the Legis- lature may from time to time direct and establish. Abticle 8. MILITIA. Sec 1. (Identical save for commas after "may" and "time to time"). Sec. 2. Staff officers.— The Governor shall appoint the adjutant general and Sec 2. Staff officers.— The Governor shall appoint the adjutant general, and STATE CONSTITUTION-MAKING. 435 CoNSTiTTJTioN OF 1796. — (Gont'd.) North Carolina Const., 1776. — (Cont'd.) Article 7th. MILITIA. Sect. 1st. Militia officers. — Captains XIV. Militia Officers — ihat the Sen- subalterns and non commissioned officers ate and House of Commons shall have shall be elected by those citizens, in power to appoint the generals and field- their respective districts, who are subject officers of the militia, and all officers, of to military duty. the regular army of this State. Sect. 2d. Field-officers. — All field offi- cers of the militia shall be elected by those citizens in their respective coun- ties who are subject to military duty. Sect. 3d. Brigadiers-general. — Briga- diers general shall be elected by the field officers of the respective brigades. Sect. 4th. Majors-general. — Majors general shall be elected by the brigadiers and field officers of the respective divi- sions. Sect. 5th. Other officers. — ^The gov- ernor shall appoint the adjutant general ; 436 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) his other staff officers ; the major-gen- erals, brigadier-generals, and command- ing officers of regiments, shall respect- iTcly appoint their staff officers. Constitution of 1834. — (Cont'd.) his other staff -officers ; the majors gen- eral, brigadiers general, and command- ing officers of regiments, shall respect- ively appoint their staff-officers. Sec. 3. Exemptions. — The Legislature shall pass laws exempting citizens belong- ing to any sect or denomination of reli- gion, the tenets of which are known to be opposed to the bearing of arms, from attending private and general musters. Sec. 3. (Identical save for comma after "laws"). Abticle IX. Aeticue 9. disqualifications. Sec. 1. Ineligibility of ministers and priests. — Whereas ministers of the gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions ; therefore, no minister of the gospel, or priest of any denomination whatever, shall be eligible to a seat in either house of the Legislature. Sec. 2. Of Atheists. — No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State. DISQUAUFICATIONS. Sec. 1. (Identical, save for commas after "whereas" and "God"). Sec. 2. (Identical). Sec. 3. Of duelists. — Any person who shall, after the adoption of this Consti- tution, fight a duel, or knowingly be the bearer of a challenge to fight a duel, or Sec 3. (Identical, save for commas after "send," "accept" and "aider"). STATE CONSTITUTION-MAKING. 437 Constitution of 1796. — (Cont'd.) the majors general shall appoint then- aids ; the brigadiers general shall appoint their brigade majors, and the command- ing officers of regiments their adjutants and quarter masters. Sect. 6th. Captains and subalterns of the cavalry. — The captains & the sub- alterns of the cavalry shall be appointed by the troops enrolled in their respective companies and the field officers of the dis- trict shall be appointed by the said cap- tains and subalterns, provided, that whenever any new county is laid off, that the field officers of the said cavalry shall appoint the captain and other officers therein pro tempore until the company la filled up and completed, at which time the election of the captains and subal- terns shall take place as aforesaid. Sect. 7th. Religious exemption. — The legislature shall pass laws exempting citizens belonging to any sect or denomi- nation of i-eligion, the tenets of which are known to be opposed to the bearing of arms, from attending private & general musters. NoBTH Oaeolina Const., 1776i — (Cont'd.) Article 8th. disqualifications. Sec. 1st. Preachers Ineligible. — Whereas the ministers of the gospel are by their professions, dedicated to God and the cure of souls and ought not to be diverted from the great duties of their functions therefore no minister of the gospel, or priest of any denomination whatever shall be eligible to a seat in either house of the legislature. Sect. 2d. (Identical, save no commas). XXXI. Ineligibility of ministers and priests — That no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Coun- cil of State, while he continues in the ex- ercise of the pastoral function. XXXII. Atheists. — That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State. 438 STATE CONSTITUTION-MAKING. Constitution of 1870. — {Cont'd.) send or accept a challenge for that piir- pose, or be an aider or abettor in fighting a duel, shall be deprived of the right to hold any oflBce of honor or profit in this State, and shall be punished otherwise, in such manner as the Legislature may prescribe. Constitution of 1834. — {Cont'd.) Abticle X. Article 10. OATHS, BKIBEEY OF ELECTORS, NEW COUNTIES. Sec. 1. Oath of office. — Every person who shall be chosen or appointed to any office of trust or profit under this Con- stitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, talie an oath to support the Constitution of this State, and of the United States, and an oath of office. -Sec. 2. Of members of the General Assembly. — Each member of the Senate and House of Bepresentatives, shall be- fore they proceed to business take an oath or affirmation to support the Constitu- tion of this State, and of the United States and also the following oath : I do solemnly swear (or affirm) that as a mem- ber of this General Assembly, I will, in all appointments, vote without favor, affec- tion, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me Injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State. Sec. 3. Punishmeni of electors for 'bribery. — Any elector who shall receive any gift or reward for his vote, In meat, drink, money or otherwise, shall suffer such punishment as the law shall direct. And any person who shall directly or indirectly give, promise or bestow any such reward to be elected, shall thereby be rendered incapable, for six years, to serve in the office for which he was elected, and be subject to such further punishment as the Legislature shall di- rect. OATHS, BRIBERY OF ELECTORS, NEW COUNTIES. Sec. 1. (Identical, save for comma after "profit"). Sec. 2. Of members of the general assembly. — Each memher of the senate and house of representatives, shall, be- fore they proceed to business, take an' oath or affirmation, to support the con- stitution of this State, and of the United States, and also the following oath : "I do solemnly swear, (or affirm) that as a member of this general assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution which shall appear to me injurious to the people, or consent to any act or thing whatever, that shall have a tendency to lessen or abridge their rights and privi- leges as declared by the constitution of this State." Sec. 3. (Identical save for commas after "money," "promise" and "bestow"; "laws" Instead of "law"). STATE CONSTITUTION-MAKING. 439 Constitution of 1796.— (Cont'd.) North Cabolina Const., 1776.— (Oorat'd.) Abticle 9rH. oaths, bbibeby, new counties. Sect. 1st. Oath of Offlce. — That every person who shall be chosen or appointed to any office of trust or profit, shall be- fore entering on the execution thereof, talre an oath to support the constitution of this State and also an oath of office. Sect. 2d. Of metnbers of General As- sembly. — That each member of the sen- ate and house of representatives, shall before they proceed to business take an oath or affirmation to support the con- stitution of this State, and also the fol- lowing oath : I, A. B. do solemnly swear (or atHrm) that as a member of this general assembly, I will in all appoint- ments vote without favor, affection, par- tiality or prejudice, and that I will not propose or assent to any bill, vote or resolution which shall appear to me in- jurious to the people or consent to any act or thing whatever that shall have a tendency to lessen or abridge their rights and privllees as declared by the consti- tution of this State. XII. Oath of Office— That every per- son, who shall be chosen a member of the Senate or House of Commons, or- ap- pointed to any office or place of trust, before taking his seat, or entering upon the execution of his offlce, shall take an oath to the State; and all officers shall also take an oath of offlce Sect. ■ 3d. Punishment of electors for fyribery. — Any elector who shall receive any gift or reward for his vote in meat, drink money or otherwise shall, suffer such punishment as the laws shall di- rect. And any person who shall directly or indirectly give promise or bestow any such reward to be elected, shall there- by be rendered incapablfe, for two years, to serve in the office for which he was elected and be subject to such further punishment as the legislature shall di- rect. '440 STATE CONSTITUTION-MAKING. Constitution ov 1870. — {Cont'd.) Sec. 4. New counties; county lines; exceptions; vote necessary to estaMish now comities or remove county seat; lia- hility -for emsting Ael)t. — New counties may be established by the Legislature to consist of not less than two hundred and seventy-five square miles, and which shall contain a population of seven hundred qualified voters ; no line of such county shall approach the courthouse of any old county from which it may be taken nearer than eleven miles, nor shall such old county be reduced to less than five hundred square miles. But the follow- ing exceptions are made to the foregoing provisions viz : New counties may be es- tablished by the present or any succeed- ing Legislature out of the following ter- ritory to wit : Out of that portion of Obion County which lies west of low water mark of Reel Foot Lake: Out of fractfons of Sumner Macon and Smith Counties ; but no line of such new county shall approach the courthouse of Sumner or of Smith Counties nearer than ten miles, nor include any part of Macon County lying within nine and a half miles of the courthouse of said county nor shall more than twenty square miles of Macon County nor any part of Sum- ner County lying due west of the west- ern boundary of Maeon County, be taken in the formation of said new county : Out of fractions of Grainger and Jefferson Counties but no line of such new county shall include any part of Grainger County north of the Holston River; nor shall any line thereof approach the court- house of Jefferson County nearer than eleven miles. Such new county may in- clude any other territory which is not excluded by any general provision of of this Constitution: out of fractions of Jackson and Overton Counties but no line of such new county shall approach the courthouse of Jackson or Overton Counties nearer than ten miles, nor shall such county contain less than four hun- dred qualified voters, nor shall the area of either of the old counties be reduced below four hundred and fifty square miles ; Out of fractions of Roane, Mon- roe, and Blount Counties, around the town of Loudon ; but no line of such new county shall ever approach the towns of Maryville, Kingston, or MadisonvlUe Constitution of 1834. — (Cont'd.) Sec. 4. New counties, county lines; exceptions; vote necessary to estaMish new' counties or remov^e county seat. — N6w counties may be established by the legislature, to consist of not less than three hundred and fifty square miles, and which shall contain a population of four hundred and fifty qualified voters. No line of such county sihall approach the courthouse of any old county from which it may be taken, nearer than twelve miles. No part of a county shall be taken to form a new county or a part thereof, with- out the consent of a majority of the qual- ified voters In such part taken off. And in all cases where an old county may be reduced for the purpose of forming a new one, the seat of justice in said old county shall not be removed without the concurrence of two thirds of both branches of the legislature; nor shall said old county be reduced to less than six hundred and twenty five square miles : provided, however, that the county of Bedford may be reduced to four hun- dred and seventy five square miles ; and there shall not be laid off more than one new county on the west, and one on the east, adjoining the county of Bed- ford ; and no new county line shall run nearer than eleven and a half miles of the seat of Justice of said county. The line of a new county may run •within eleven miles of the seat of Justice of Franklin County ; provided, it does not reduce said county to less contents than six hundred and twenty five square miles. The counties of Car- ter, Rhea, Tipton, Dyer, and Sullivan, are excepted out of the provision of this section. The county of Humphreys may be divided at such time as may be pre- scrH)ed by the Legislature, making the Tennessee river the dividing line, a ma- jority of the qualified voters of said county voting in favor of said division. — The counties of Carter. Rhea, and , Humphreys, shall not be divided into more than two counties each; nor shall more than one new county be taken out of the territory now composing the coun- ties of Tipton and Dyer ; nor shall the seats of justice In the counties of Rhea, Carter, Tipton, and Dyer, be removed without the concurrence of two thirds of both branches of the legislature. The STATE CONSTITUTION- MAKING. 441 CoNSTiTTJTioN OP 1796. — (Cont'd.) North Carolina Const., 1776. — (Cont'd.) Sect. 4th. New counties. — No new county shall be established by the gen- eral assembly which shall reduce the county or counties or either of them, from which it shall be taken to a less content than six hundred & twenty five square miles. Nor shall any new county be laid off of less contents. All new counties as to the right of suffrage and representation, shall be considered as a part of the county or counties from which it was taken, until entitled by numbers to the right of representation. No bill shall be passed into a law for the establishment of a new county ex- cept upon a petition to the general as- sembly for that purpose signed by two hundred of the free male inhabitants within the limits or bounds of such new county prayed to be laid off. 442 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) nearer than eleven miles, except that on the south side of the Tennessee River, said lines may approach as near as ten miles to the courthouse of Roane County. The counties of Lewis, Cheatham, and Sequatchie, as now established by leg- islative enactments are hereby declared to be constitutional counties. No part of Bledsoe County shall be taken to form a new county or a part thereof or "be attached to any adjoining county. That portion of Marion County included with- in the following boundaries, beginning on the Grundy and Marion Coimty line at the Nick a Jack trace and running about six hundred yards west of Ben Poseys, to where the Tennessee Coal Railroad crosses the line, running thence south- east through the Pocket near William Summars crossing the Battle Cteek Gulf at the corner of Thomas Wootons field, thence running across the Little Gizzard Gulf at Raven Point, thence in a direct line to the bridge crossing the Big Fiery Gizzard, thence in a direct line to the mouth of Holy Water Creek, thence up said creek to the Grundy County line, and thence with said line to the begin- ning; is hereby detached from Marion County, and attached to the county of Grundy. No part of a county shall be taken off to form a new county or a part thereof without the consent of two-thirds of the qualified voters in such part taken off; and where an old county is reduced for the purpose of forming a new one, the seat of Justice in said old county shall not be removed without the con- currence of two-thirds of both branches of the Legislature, nor shall the seat of justice of any county be removed with- out the concurrence of two-thirds of the qualified voters of the county. But the foregoing provision requiring a two- thirds majority of the voters of a county to remove Its county seat shall not apply to the counties of Obion and Cocke. The fractions taken from old counties to form new counties or taken from one county and added to another shall continue lia- ble for their pro rata of all debts con- tracted by their respective counties prior to the separation, and be entitled to their proportion of any stocks or credits be- longing to such old counties. Constitution of 1S34. — (Oonfd.) county of Sullivan may be reduced below the contents of six hundred and twenty five sqnare miles; but the line of any new county which may hereafter be laid off shall not approach the county seat of said county nearer than ten miles. The counties of Marion and Bledsoe shall not be reduced below one thousand qualified voters each in forming a new county or counties. STATE CONSTITUTION-MAKING. 443 Constitution of 1796. — (Cont'd.) North Carolina Const., 1776. — (Cont'd.) 444 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) Sec. 5. To vote mth old county. — ^The citizens who may be included in any new county shall vote with the county or counties from which they may have been stricken off, for members of Congress, for Governor and for members of the General Assembly until the next appor- tionment of members to the General As- sembly after the establishment of such new county. Constitution of 1834. — (Cont'd.) Sec. 5. (Identical save for commas after each "Assembly"). Aeticle XI. MISCELLANEOUS PROVISIONS. Sec. 1. Existing laws not affected by this Constitution. — All laws and ordi- nances now in force and use in this State, not Inconsistent with this Consti- tution, shall continue In force and use until they shall expire or be altered or repealed by the Legislature ; but ordi- nances contained in any former Consti- tution or schedule thereto are hereby abrogated. Sec 2. Nor rights, contracts, actions, etc. — Nothing contained in this Constitu- tion shall impair the validity of any debts or contracts, or affect any rights of property or any suits, actions, rights of action or other proceedings in courts of justice. Sec. 3. Amendnvents of the Constitu- tion, etc.; not oftener than once in six years; but Legislature may at any ti/me submit question of calling convention. — Any amendment or amendments to this Constitution may be proposed in the Sen- ate or House of Representatives, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals with the yeas and nays there- on, and referred to the General Assem- bly then next to be chosen ; and shall be published six months previous to the time of making such choice; and if in the General Assembly then next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by two thirds of all the members elected to each house, then it shall be the duty of the General Assembly to submit such pro- Aeticle 11. miscellaneous provisions. Sec. 1. Existing laws tvot affected by this Constitution. — All laws and ordi- nances now m force and use in this State, not inconsistent with this consti- tution, shall continue in force and use, until they shall expire, be altered, or re- pealed by the legislature. Sec. 2. (Identical save for commas after "Constitution," "property" and "action"). Sec 3. Amendments of the Constitu- tion, etc.; not oftener, than once in six years. — Any amendment or amendments to this constitution may be proposed in the senate or house of representatives ; and if the same shall be agreed to by a majority of all the members elected to each of the two houses, saich proposed amendment or amendments, shall ibe en- tered on their journals, with the yeas and nays thereon, and referred to the general assembly then next to be chosen; and shall be published six months previous to the time of making such choice. And if in the general assembly next chosen as aforesaid, such proposed amendment or amendments, shall be agreed to by two thirds of all the members elected to each house, then, it shall be the duty of the general assembly to submit such pro- posed amendment or amendments to the people, in such manner, and at such STATE CONSTITUTWN-MAKING, 445 Constitution of 1796. — (Cont'd.) North Cabolina Const., 1776. — (Cont'd.) Article 10th. misceli.aneotjs provisions. Sect. 1st. Seat of government. — Knoxville shall be the seat of govern- ment until the year one thousand eight hundred and tv^o. Sect. 2d. Existing laws not affected hy this constitution. — All laws and ordi- nances now in force and use in this Ter- ritory, not inconsistent with this consti- tution shall continue to be in force and use in this State, until they shall expire, be altered or repealed by the legislature. Sect. 3d. Constitutional changes. — That whenever two thirds of the Gren-. eral Assembly shall think it necessary to amend or change this constitution they shall recommend to the electors at the next election for members to the general assembly to vote for or against a con- vention and if it shall appear that a ma- jority of all the citizens of the State, voting for representatives have voted for a convention, the general assembly shall, at their next session, call a convention to consist of as many members as there be in the general assembly to be chosen in the same manner, at the same places and by the same electors, that chose the gen- eral assembly, who shall meet within three months after the said election, for the purpose of revising, amending or changing the constitution. 446 STATE CONSTITUTION-MAKING. CoNSTiTUTioK OF 1870. — '{Cont'd.) posed amendment or amendments to the people, In such manner and at such time as the General Assembly shall prescribe. And if the people shall approve and rat- ify such amendment or amendments by a majority of all the citizens of the State voting for Representatives, voting in their favor, such amendment or amendments shall become part of this Constitution. When any amendment or amendments to the Constitution shall be proposed in pursuance of the foregoing provisions the same shall at each of said sessions be read three times on three several days in each house. Tie Legislature shall not propose amendments to the Constitution oftener than once in six years. The Leg- islature shall have the right, at any time by law, to submit to the people the ques- tion of calling a convention to alter, re- form or abolish this Constitution, and when upon such submission, a majority of all the votes cast shall be in favor of said proposition, then delegates shall be chosen, and the convention shall assemble in such mode and manner as shall be pre^ scribed. Sec. 4. Divorces. — ^The Legislature shall have no power to grant divorces ; but may authorize the courts of justice to grant them for such causes as may be specified by law ; but such laws shall be general and uniform In their operation throughout the State. Sec. 5. Lotteries. — The Legislature shall have no jwwer to authorize lot- teries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this State. Sec. 6. Changing name, legitimation, etc. — The Legislature shall have no power to change the names of persons, or to pass acts adopting or legitimatizing persons ; but shall, by general laws, con- fer this power on the courts. Sec. 7. Interest, conventional rate. — The Legislature shall fix the rate of in- terest, and the rate so established shall be equal and uniform throughout the State ; but the Legislature may provide for a conventional rate of interest, not to exceed ten per centum per annum. Sec 8. General laws only to be passed; corporations only to be provided for by general laws. — ^The Legislature Constitution of 1834. — (Cont'd.) time as the general asembly shall pre- scribe. And if the people shall approve and ratify such amendment or amend- ments, by a majority of all the citizens of the State, voting for representatives, voting in their favor, such amendment or amendments shall become part of this constitution. When any amendment or amendments to the constitution shall be proposed in pursuance of the foregoing provisions, the same shall at each of the said sessions be read three times on three several days in each house. The legis- lature shall not propose amendments to the constitution, oftener than once in six years. Sec. 4. Divorces. — The legislature shall have no power to grant divorces, but may authorize the courts of justice to grant them for such causes as may be specified by law ; provided, that such laws be general and uniform in their operation throughout the State. Sec. 5. (Identical). Sec 6. Interest.— The legislature shall fix the rate of interest, aiid the rate so established shall be ecpial and uniform throughout the State. Sec. 7. General laws only to be passed. — The legislature shall have no power to suspend any general law for the benefit STATE CONSTITUTION-MAKING. 447 Constitution of 1796. — (Cont'd.) North Cabolina Const., 1776. — (Cont'd.) 448 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) shall have no power to suspend any gen- eral law for the benefit of any particular individual, nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land ; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provi- sions of such law. No corporation shall be created or its powers increased or di- minished by special laws but the General Assembly shall provide by general laws for the organization of all corporations, hereafter created, which laws may, at any time, be altered or repealed, and no such alteration or repeal shall Interfere with or divest rights which have become vested. Sec. 9. Power over private and local affairs. — The Legislature shall have the right to vest such powers in the courts of justice, with regard to private and local affairs, as may be expedient. Sec. 10. Internal improvements to &e encouraged. — A well-regulated system of internal improvement is calculated to de- velop the resources of the State, and pro- mote the happiness and prosperity of her citizens ; therefore it ought to be encour- aged by the General Assembly. Sec. 11. Homestead exemption. — A homestead in the possession of each head of a family and the improvement there- on, to the value, in all of one thousand dollars shall be exempt from sale under legal process during the life of such head of a family, to inure to the benefit of the widow, and shall be exempt during the minority of their children occupying the same. Nor shall said property be alien- ated without the joint consent of hus- band and wife, when that relation exists. This exemption shall not operate against public taxes, nor debts contracted for the purchase money of such homestead, or improvements thereon. Sec. 12. Education to he cherished; common school fund; poll taw; whites and negroes; colleges, etc., rights of. — Knowledge, learning, and virtue, being essential to the preservation of repub- CoNSTiTUTiON OF 1834. — (Cont'd.) of any particular individual ; nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions, other than such as may be, by the same law extended to any member of the com- munity who may be able to bring himself within the provisions of such law : pro- vided, always, the legislature shall have power to grant such charters of incorpo- ration as they may deem expedient for the public good. Sec 8. Pdwer over private and local affairs. — The legislature shall have the right to vest such powers in the courts of justice, with regard to private and local affairs, as may be deemed exped- ient. Sec. 9. (Identical save for comma after "therefore"). Sec. 10. (Identical through "en- couragement of common schools" — semi- colon here instead of period — save for commas after "opportunities," "State" — following "General Assembly of this" — STATE CONSflTUTION-MAKING. 449 Constitution of 1796.— (Cont'd.) ' North Cabolina Const., 1776.— (Cowt'd.) XLI. Education — That a school or schools shall be established by the Legv islature, for the convenient instruction of youth, with such salaries to the mas- ters, paid by the public, as may enable 29 450 STATE CONSTITUTION-MAKING. Constitution op 1870. — '(Cont'd.) lican institutions, and the diffusion of tbe opportunities and advantages of educa- tion througbout tbe different portions of the State, being highly conducive to the promotion of this end, it shall be the duty of the General Assembly in all future periods of this government, to cherish literature and science. And the fund called common school fund, and all the lands and proceeds thereof, dividends, stocks, and other property of every, de- scription whatever, heretofore by law aj)- propriated by the General Assembly of this State for the use of common schools, and all such as shall hereafter be ap- propriated, shall remain a perpetual fund, the principal of whic shall never be diminished by legislative appropria- tions ; and the interest thereof shall be inviolably appropriated to the support and encouragement of common schools throughout the State, and for the equal benefit of all the people thereof ; and no law shall be made authorizing said fund or any part thereof to be diverted to any other use than the support and encour- agement of common scbools. The State taxes, derived hereafter from polls shall be appropriated to educational purposes, in such manner as the General Assembly shall from time to time direct by law. No school established or aided under this section shall allow white and negro chil- dren to be received as scholars together in the same school. The above provi- sions shall not prevent the Legislature from carrying into effect any laws that have been passed In favor of the colleges, universities or academies, or from au- thorizing heirs or distributees to receive and enjoy escheated property under such laws as may be passed from time to time. Sec. 13. GHime, fish, etc. — ^The General Assembly shall have iwwer to enact laws for the protection and preservation of game and fish, within the State, and such laws may be enacted for and applied and enforced in particular counties or geo- graphical districts, designated by the General Assembly. Sec. 14. Intermarriage between whites and negroes. — ^The intermarriage of white persons with negroes, mulattoes, or per- sons of mixed blood, descended from a negro to the third generation inclusive Constitution op 1834. — (Cont'd.) and after "any part thereof" ; no comma after "learning" and the first "State" ; semicolon after "end" ; "the" before "common school fund" ; "which" instead of "whic" ; "appropriation" instead of appropriations"). and It shall be the duty of the general assembly, to appoint a board of com- missioners for such term of time as they may thinli proper, who shall have tbe general superintendence of said fund, and who shall make a report of the con- dition of the same, from time to time, under such rules, regulations, and re- strictions as may be required by law; provided, that if at any time hereafter a division of the public lands of the United States, or of the money arising from the sales of such lands, shall be made among the individual states, the part of such lands, or money, coming to this State, shall be devoted to the pur- poses of education and internal improve- ment ; and shall never be applied to any other purpose. Sec. 11. Previous laws not affected. — The above provisions shall not be con- strued to prevent the legislature from carrying into effect any laws that have been passed in favor of the colleges uni- versities or academies, or from authoriz- ing heirs or distributees to receive and enjoy escheated property, under such rules and regulations as from time to time may be prescribed by law. STATE CONSTITUTION-MAKING. 451 Constitution of 1796.— (Cont'd.) North Oabolina Const., 1776.— (OomJ't?.) J them to instruct at low prices ; and ail useful learning sball be duly encouraged, and promoted, in one or more univer- sities. 452 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) or their living together as man arid wife, in this State is prohibited. The Legisla- ture shall enforce this section by appro- priate legislation. iSec. 15. Heligiow holidays. — No per- son shall in time of peace be required to perform any service to the public on any day set apart by his religion as a day of rest. Sec. 16. Bill of Rights to remain in- violate. — ^The declaration of rights here- to prefixed is declared to be a part of the Constitution of this State, and shall never be violated on any pretense what- ever. And to guard against transgres- sion of the high powers we iave dele- gated, we declare that everything in the Bill of Rights contained, is excepted out of the general powers of government, and shall forever remain inviolate. Constitution of 1834. — (Cont'd.) Sec. 12. (Identical save for comma after "prefixed"). Sec. 17. County offices. — No county oflice created by the Legislature shall be filled otherwise than by the people or the County Court. Schedule. Section 1. Public officers to hold from what time; appointments ; officers to va- cate, when; exceptions. — ^That no incon- venience may arise from a change of the Constitution, it is declared that the Gov- ernor of the State, the members of the General Assembly and all officers elected at or after the general election' of March one thousand eight hundred and seventy, shall hold their oflices for the terms pre- scribed in this Constitution. Officers appointed by the courts shall be filled by appointment, to be made and to take effect during the first term of the court held by judges elected under this Constitution. All other officers shall vacate their places thirty days after the day fixed for the election of their successors under this Constitution. The Secretary of State, Comptroller and Treasurer shall hold their offices un- til the first session of the present Gen- eral Assembly occurring after the ratl- SCHEDIILE. Sec. 1. Officers to hold over. — That no inconvenience may arise from a change of the constitution, it is declared, that all officers, civil and military, shall con- tinue to hold their offices ; and all the functions appertaining to the same, shall be exercised and performed according to the existing laws and constitution, until the end of the first session of the general assembly ; which shall sit under this constitution, and until the government can be reorganized, and put into opera- tion under this constitution, in such manner as the first general assembly aforesaid shall prescribe, and no longer. Sec. 2. State capital. — The general as- sembly which shall sit after the first ap- portionment of representation under the new constitution, (to wit) in the year one thousand eight hundred and forty three, shall, within the first week after the commencement of the session, desig- nate and fix the seat of government ; and when so fixed, it shall not be removed, STATE CONSTITUTION-MAKING. 453 Constitution of X796. — (Cont'd.) North Oaeolina Const., 1776. — (Cont'd.) Sect. 4th. Concerning the Declaration of Bights. — The declaration of rights hereto annexed is declared to be a part of the constitution of this State and shall never be violated on any pretence what- ever. And to guard against transgres- sions of the high powers which we have delegated, we declare that everything in the bill of rights contained and every other right not hereby delegated is ex- cepted out of the general powers of gov- ernment and shall forever remain in- violate. XLIV. Declaration of ..Bights — .That the Declaration of Rights is hereby de- clared to be part of the Constitution of this State, and ought never to be vio- lated, on any pretence whatsoever. Schedule. Sect. 1st. Bights, actions, etc., to con- tinue. — That no inconvenience may arise from a change of the temporary to a per- manent State government, it is declared that all rights, actions, prosecutions, claims and contracts as well of individ- uals as of bodies corporate shall con- tinue, as If no change had taken place in the administration of government. Sect. 2d. Liabilities to continue. — All fines penalties and forfeitures due and owing to the territory of the United States of America south of the river Ohio, shall Inure to the use of the State. All bonds for performance executed to the governor of the said territory shall be and pass over to the governor of this State and his successors in office for the use of the State, or by him or them re- spectively to be assigned over to the use of those concerned as the case may be. Sect. 3d. Officers to hold over. — ^The governor secretary, judges, and briga- dier general have a right by virtue of This Constitution Is not intended to preclude the present Congress from mak- ing a temporary provision, for the well ordering of this State, until the General Assembly shall establish government, agreeable to the mode herein before de- scribed. December the eighteenth, one thousand seven hundred and seventy-six, read the third time, and ratified in open Con- 454 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) fication of tbis Constitution and until their successors are elected and qualified. The officers then elected shall hold their offices until the fifteenth day of January one thousand eight hundred and seventy-three. Sec. 2. Jtidges of Supreme Court; va- cancy to remain unHlled; court may sit in ttoo sections; tied judges- must con- cur; Attorney-general and Reporter. — At the first election of judges under this Constitution there shall be elected six judges of the Supreme Court, two from each grand division of the State who shall hold their offices for the term here- in prescribed. In the event any vacancy shall occur in the office of either of said judges at any time after the first day of January one thousand eight hundred and seventy three it shall remain unfilled and the court shall from that time be constitued of five judges. While the court shall con- sist of six judges they may sit In two sections, and may hear and determine causes in each at the same time, but not In different grand divisions at the same time. When so sitting the concurrence of two judges shall be necessary to a deci- sion. The Attorney General and Reporter for the State shall be appointed after the election and qualification of the judges of the Supreme Court herein provided for. Sec. 3. . Officers to taJce oath to sup- port this Constitution or vacate. — Every judge and every officer of the executive department of this State and every sheriff holding over under this Constitution, shall, within twenty days after the rati- fication of this Constitution is pro- claimed, take an oath to support the same, and the failure of any officer to take such oath shall vacate his office. Sec. 4. Statute of limitations. — The time which has elapsed since the sixth day of May one thousand eight hundred and sixty one until the first day of Jan- uary one thousand eight hundred and sixty seven shall not be computed, In any case affected by the statutes of lim- itation, nor shall any writ of error be affected by such lapse of time. Constitution of 1834. — (Cont'd.) except by the consent of two thirds of the members of both houses of the gen- eral assembly. The first and second ses- sions of the general assembly under this constitution shall be held in Nashville. Sec. 3. Land Offices. — Until a land office shall be opened, so as to enable the citizens south and west of the congres- sional reservation line, to obtain titles upon their claims of occupancy, those who hold land by virtue of such claims, shall be eligible to serve in all capacities, where a freehold is by the laws of the State, made a requisite qualification. Done in convention, at Nashville, on this 30th day of August, in the year of our Lord one thousand eight hundred and thirty four, and of the Independence of the United States, the fifty ninth. In testimony whereof, we have here- unto subscribed our names. ScHEDUus TO 1853 Amendments. Section 1st. Present officers to con- tinue until after election. — ^And that no inconvenience may arise from the pro- posed amendments, should the same be adopted by the people, it is declared that . all judges of the courts and attorneys contemplated in the proposed amend- ments, shall continue to hold their offices and exercise the duties and functions thereof, according to the true existing laws and constitution, until the election of their successors by the people, to be held and made under a law to be passed by the general assembly (next elected, after the ratification of the proposed amendments by the people) which law shall prescribe the times and places of holding said elections, and which shall l>i> passed without delay and in strict pur- s\iance of said amendments ; provided, the legislature shall appoint a day for holding the election of said judges and attorneys general, separate and apart from the days already prescribed or here- after to be prescribed by the legislature for holding the elections for state and county officers. STATE CONSTITUTION-MAKING. 455 Constitution op 1796. — (Cont'd.) North Carolina Const., 1776. — (Cont'd.) their appointments under the authority of the United States, to continue in the ex- ercise of the duties of their respective offices, In their several departments until the said oflScers are superseded imder the authority of this constitution. Sect. 4th. Officers to hold over. — All officers, civil & military who have been appointed by the governor, shall continue, to exercise their respective offices until the second Monday in June and until successors in office shall be appointed un- der the authority of this constitution and duly qualified. Sect. 5th. Governor's seal. — The gov- ernor shall make use of his private seal until a State seal shall be provided. Sect. 6th. County representation. — Until the first enumeration shall be made as directed in the second section of the first article of this constitution, the several counties shall be I'espectively en- titled to elect one senator and two rep- i-esentatives. Provided That no new county shall be entitled to separate rep- resentation previous to taking the enum- •eration; Sect. 7th. Place of next election, Ten- nessee Cotmty. — That the next election for representatives and other officers to be held for the county of Tennessee shall be held at the house of William Miles. Sect. 8th, Land Office. — Until a land office shall be opened so as to enable the citizens south of French Broad and Holston between the rivers Tennessee and Big Pigeon to obtain titles upon their claims of occupancy and preemp- tion, those who hold land by virtue of such claims shall be eligible to serve in all capacities where a freehold Is by this constitution made a requisite qualifica- tion. Done in convention, at Knoxville by unanimous consent on the sixthe day of February in the y^ar of our Lord one thousand seven hundred and ninety six and of the Independence of the United States of America the twentieth. In tes- timony whereof we have hereunto sub- scribed our names. 456 STATE CONSTITUTION-MAKING. OoNSTiTUTioN OF 18T0. — (Cont'd.) Done in convention at Nashville the twenty-third day of February In the year of our Lord one thousand eight hundred and seventy, and of the independence of the United States, the ninety fourth. In testimony whereof, we have here- unto set our names. Constitution op 1834. — (Cont'd.) Schedule. Amendments of 1865. Section 1. Abrogating Art. II, sec. 31 of the Const. — ^Section thirty-one of the second article of the constitution, which is as follows: "The general assembly shall have no power to pass lawis for the emancipation of slaves, without the con- sent of their owners," is hereby abro- gated. Sec. 2. Abrogating Ordinance of Se- cession. — "The declaration of independ- ence and ordinance dissolving the fed- eral relations between the State of Ten- nessee and the United States of Amer- ica," passed and promulgated by the leg- islature of Tennessee on the 6th day of May, 1861, by which the State was de- clared separated from the Federal Union, and all laws and ordinances by which Tennessee became a member of the Fed- eral Union, annulled and abrogated, was in like manner an act of treason and usurpation, unconstitutional, null, and void. Sec. 3. Abrogating State's Connections with Confederacy. — The convention, agreement, and military leagues entered into by the commissioners of the State of Tennessee, and the commissioners of the so-called Confederate States of Amer- ica, made May 7, 1861. and on the same day ratified and confirmed by the legis- lature, was an act of treason and usur- pation, unconstitutional, null, and void. iSec. 4. Statute of Limitations Stt«- pended. — No statute of limitations shall be held to operate from and after the 6th day of May, 1861, until such time here- after as the legislature may prescribe, nor shall any writ of error be refused, or abated in any case, or suit decided since the 6th day of May, 1861, and prior to this time, by reason of any lapse of time. And in all actions for torts brought, or which may hereafter be brought in the courts of this State by attachment levied upon the property of the defendant, the court shall have power to proceed to judgment and collection of the same, as upon contracts, without personal service of process upon the defendant, until the legislature may see fit to change the law in such cases. STATE CONSTITUTION-MAKING. 457 Constitution op 1796. — (Cont'd.) Nokth Carolina Const., 1776. — (Cont'd.) 458 STATE CONSTITUTION-MAKING. CoijsTiTUTiON OF 1870.— (Cont'd.) Constitution of 1834. — (Cont'd.) Sec. 5. Aots of Secession Legislature Declared Void. — All laws, ordinances, and resolutions, as well as all acts done in pursuance thereof, under the author- ity of the usurped State government after the declared independence of the State of Tennessee, on or after the 6th day of May, 1861, were unconstitutional, null, and void from the beginning: Provided, That this section shall not be construed as to effect any judicial decisions made by the State courts held at times differing from those provided by law prior to May 6, 1861 ; said judicial decisions being made pursuant to the laws of the State of Ten- nessee enacted previous to said date, and between parties present in courts and litigating their rights. Sec. 6. Secession Debt Abrogated. — All laws, ordinances, and resolutions, of i:he usurped State governments, passed on w ^t^r the 6th day of May, 1861, providing for-£he-issuance of State bonds, also all notes of th6~Bank of Tennessee, or any of its branches, issued on or after the 6th day of May, 1861, and all debts created or contracted in the name of the State by said autliority, are unconstitu- tional, null, and void; and no legislature shall hereafter have power to pass any act authorizing the payment of said bonds or debts, or providing for the redemp- tion of said notes. Sec. 7. State Offlcers.^AU civil and military officers which have been or may hereafter be appointed by the acting gov- ernor of the State, are hereby ratified and affirmed, and they shall continue to hold and exercise the functions of their respective offices until their successors shall be elected or appointed and quali- fied as prescribed by the laws and con- stitution of the State and United States. Sec. 8. Election on Proposed Amend- ments. — That the proposed amendments of the constitution, and the schedule thereto, be submitted to the people at the ballot-box, on the 22d day of February next, and that upon the adoption there- of, by the people, an election shall be held on the 4th day of March next for governor and members of the legislature, the latter to be voted for by general ticket, upon the basis prescribed in the act apportioning representation in the STATE CONSTITUTION-MAKING. 459 Constitution of 1796. — (Cont'd.) Noeth Carolina Ognst., 1776. — (Cont'cl.) 460 STATE CONSTITUTION-MAKING. Constitution of 1870. — (Cont'd.) Constitution of 1834. — (Cont'd.) State, passed on the 19th day of Febru- ary, 1852, to assemble at the capitol on the first Monday in April next, said offi- cers to continue in office until their suc- cessors shall be elected and qualified, un- der the regular biennial election of 1867 : Provided, That said apportionment be so modified as to give to the counties of Johnson, Carter, Campbell, Anderson, Union, Sevier, Macon, and Hancock each one member ; and the district composed of the counties of Fentress, Morgan, Scott, and Cumberland one additional member in the house of representatives. Sec. 9. Qualifications of Voters. — ^The qualifications of voters and the limita- tion of the elective franchise may be de- termined by the general assembly which shall first assemble under the amended constitution. STATE CONSTITUTION-MAKING. 461 2. Ordinance of the Constitutional Convention of 1870. Section 1. Election ordered. — Be it ordained iy the convention, That It shall be the duty of the several officers of the State, authorized by law to hold elec- tions for members of the Gteneral Assem- bly and other officers to open and hold an election at the place of holding said elec- tions in their respective counties, on the fourth Saturday in March, 1870, for the purpose of receiving the votes of such qualified voters as may desire to vote for the ratification or rejection of the Constitution recommended by this con- vention. And the qualification of voters in said election be the same as that re- quired in the election of delegates to this convention. Sec. 2. Duty of returning officers; manner of voting. — It shall be the duty of said returning officers, in each county, in this State, to enroll the name of each voter on the poll books prepared for said election, and shall deposit each ballot in the ballot boxes respectively. Each voter who wishes to ratify the new Constitu- tion shall have written or printed on his ticket the words "New Constitution," or words of like . import ; and each voter who wishes to vote against the ratifica- tion of the new Constitution shall have written or printed on his ticket the words "Old Constitution," or words of like im- port. Sec. 3. Election, how held; votes, etc. — The election shall be held, and the judges and clerks shall be appointed, as in the case of the election of the mem- bers of the General Assembly; and the returning officers, in presence of the judges or Inspectors, shall count the votes .given for the "New Constitution," and of ■those given for the "Old Constitution," of which they shall keep a correct estimate in said poll books. They shall deposit the original poll books of said election with the clerks of the County Courts In the respective counties, and shall, within five days after the election, make out accurate statements of the number of votes, in their respective counties, for or against the "New Constitution," and im- mediately forward, by mall, one copy of said certificates to the Governor, and one to the Speaker of the Senate. So soon as the poll books are deposited with the County Court clerks, they shall certify to the president of the convention an accurate statement of the number of votes cast for or against the "New Con- stitution," as appears on said poll books ; and if any of said returning officers shall fall to make the returns herein provided for within the time required, the Gov- ernor shall be authorized to send special messengers for the result of the vote in those counties whose officers have so failed to make returns. Sec. 4. Returns, who to compare; cer- tificate of result; Chvemor's proclama- tion. — Upon the receipt of said returns, it shall be the duty of the Governor, Speaker of the Senate, and the president of this convention, or any two of them, to compare the votes cast in said elec- tion ; and if it shall appear that a ma- jority of all the votes cast for and against the "New Constitution" were for "New Constitution," it shall be the duty of the Governor, Speaker of the Senate, and president of this convention, or any two of them, to append to this Constitution a certificate of the result of the votes, from which time the Constitution shall be established as the Constitution of Tennessee, and the Governor shall make proclamation of the result. Sec. 5. When proclamation to Be is- sued.-rThe Grovernor of the State is re- quired to issue his proclamation as to the election on the fourth Saturday In March, 1870, hereto provided for. John C. Bbown, President. Attest : [l. b.] T. E. S. Russwtjbm, Secretary. 462 ^^'?- cccr} -*/ • ■ / J > STATE CONSTJTyTIOlSf-MAKING. 7 3 ^' rjTUTION-MAKING. „ 3. Public Acts of 1915 — Concerning Constitutional Conventions. Chapteb No. 110. House Bill No. 89. (By Mr. McLaln and Others.) A Bill to be entitled: "An Act to au- thorize the people to decide by vote whether they will call a Constitu- tional Convention, and to provide for the submission of said question to the voters of the State and the announce- ment of the result." Wheeeas, Under our Constitution the right of the people to alter, reform or abolish the same is fully recognized ; and Whbbeas, In the opinion of the- Gen- eral Assembly, the public exigences do BOW demand the exercise of the power to alter or reform the Constitution on the part of the people of the State ; and Whereas, By Article XI, Section 3 of the present constitution, power is given to the Legislature to submit to the peo- ple the question whether a constitutional Convention shall be called ; therefore Section 1. Be it enacted, by the Gen- eral Assembly of the State of Tennessee, That all the legal voters under existing laws of this State are hereby authorized to assemble on the first Thursday in Au- gust, 1916, at the several places of hold- ing elections, in the various counties of this State, and vote for or against call- ing a convention to alter or reform the Constitution by submitting amendments to the present Constitution, to be voted on separately by the people. , Section 2. Be it further enacted, That in submitting the question of a conven- tion to the people, tickets shall be pre- pared by the proper authorities under the laws in force at the time of holding said election, or by the electors in various counties of this State, with th6 words written or printed "For a Convention," "Against a Convention," and if the number of votes cast for a convention be greater than the votes cast against a convention, then there shall be a conven- tion to propose amendments to the con- stitution. Registration books shall be opened and voters will be allowed to reg- ister in all respects as at that time pro- vided by law, and the qnalifications nec- essary to entitle a citizen to vote upon the questions submitted shall, in all re- spects, be the same as then required by law in order to vote for members of the General Assembly. Section 3. Be it further enacted. That in all cases where any commissioners of election, or other proper officer under the law, fail or refuse to hold said election, it shall be lawful for any three freehold- ers, being legal voters, to hold said elec- tion by summoning as many bystanders, being legal voters, as may be necessary to hold said election. Section 4. Be it further enacted. That it is hereby declared to be the duty of the Governor to issue his proclamation to the several Commissioners of election, or other proper officers under the law, in the State and counties thereof, immedi- ately after the passage of this act, re- quiring them to hold and conduct said election as herein provided. And said Commissioners of election or other proper officers under the law, in the various counties of the State, shall advertise the time and places of holding said election, as in case of special elec- tions for members of the General As- sembly. Section 5. Be it further enacted. That it shall be the duty of the Commissioners of election, or other proper officer under the law, of each county of the State, im- mediately after said election, to make a complete return to the Secretary of this State of the votes cast "For a Conven- tion" and "Against a Convention" in their county. Section 6. Be it further enacted. That it shall be the duty of the Governor. Sec- retary of State and Attorney General of the State, to compare the returns made by the Commissioners of election, or other proper officers under the law, and if a majority of those voting be in favor of a Convention, or against a Convention, It shall be the duty of the Governor to immediately issue his proclamation an- nouncing the result. STATE CONSTITUTION-MAKING. 463 Section 7. Be it further enacted, That the expenses of holding the election un- der this Act shall be provided for and paid as in the case of elections of mem- bers of the Creneral Assembly of the State. Section 8. Be it further enacted, That this Act take effect from and after its passage, the public welfare requiring it. Passed May 12, 1915. Wm. p. Cooper, Speaker of the House of Representatives. AtBEET E. Hnx, Speaker of the Senate. Approved May 17, 1915! Tom C. Rye, Governor. Chapter No. lllj House Bill No. 88. . (By Mr. McLain and Others.) A Bill to be entitled: "An Act to pro- vide for the election of Delegates to a Constitutional Convention and for the holding of said Convention to formulate amendments to the Consti- tution, to be voted on separately by the people." Section 1. Be it enacted by the Gen- eral Assemhly of the State of Tennessee, That in case the Governor of the State, pursuant to law, shall' issue his procla- mation announcing that a majority of the voters voting in the election held for that purpose, have cast their votes in favor of calling a Constitutional Convention to formulate amendments to the Constitu- tion, to be voted on separately by the people, all legal voters under existing laws of this State who were qualified to vote for or against the calling of said Constitutional Convention under the Act passed, and all who have become legal voters sinpe said election was held, are hereby authorized to assemble on the Tuesday after the first Monday in No- vember, 1916, at the several places of holding elections in the various counties of the State and vote for delegates to a Constitutional Convention to formulate amendments to the • Constitution, to be voted on separately by the people. Section 2. Be it further enacted. That said election shall be held at all the pre- cincts and voting places established by law, and shall be managed and conducted under the laws then in force, in the same manner and under the same rules and regulations that members of the General Assembly are then elected. And it is hereby declared to be the duty of the Governor to issue his proclamation to the several commissioners of election, or other proper officers under the law of the State and counties thereof, Immediately after the announcement by [him] that a majority of said votes have been cast in favor of said Convention, requiring them to hold and conduct said election as here- in provided. And said Commissioners of election, or other proper officers under the law, in the various counties of this State, shall advertise the time and place of holding said election, as in case of special elec- tions of members of the General Assem- bly. Section 3. Be it further enacted, That in all cases where any county commis- sioners of election, or other proper offi- cers under the law, fail or refuse to hold said election, it shall be lawful for the electors present at the polling place, not less than three, being legal voters, to hold said election by summoning as many bystanders, being legal voters, as may be necessary to hold the election. Section 4. Be it further enacted. That the whole number of delegates selected to such convention shall be the same as the number of representatives of the Gen- eral Assembly as now organized, and the number of delegates from each represent- ative district shall be the same as now provided by law for the representatives in the General Assembly, making the whole number of delegates in the conven- tion ninety -nine (99). Section 5. Be it further enacted. That no person shall be eligible to a seat in said convention who is not twenty-five (25) years of age and a legal voter of the county or district he seeks to repre- sent. Section 6. Be it further enacted, That in case of death, refusal or inability to 464 STATE CONSTITUTION-MAKING. serve, resignation or removal from the State of any delegate, the vacancy occa- sioned thereby shall be filled in the same manner as prescribed by law for filling vacancies in the representation in the General Assembly, the call to be made within fifteen (15) days after the va- cancy. Section 7. Bt it further enacted, That it shall be the duty of the commissioners of election, or other proper officers under the law, of each county of the State, Im- mediately after said election to make a complete return to the Secretary of State of the votes cast for delegates in his comity ; provided, that certificates of elec- tion shall issue to delegates as now pro- vided by law in the case of representa- tives of the General Assembly, and said certificate shall be prima facie evidence of the right of any delegate to a seat in said convention, subject if contested to be decided in the manner the Convention may prescribe. Sbctiok 8. Be it further enacted, That said Convention shall convene in the City of Nashville on the 15th day of No- vember, 1916, and when so assembled said delegates shall organize themselves into a Constitutional Convention by the elec- tion of a president and such other offi- cers as they may deem necessary. Section 9. Be it further enacted, That said Convention shall have authority to determine its own rules of proceeding, and to punish its members for disorderly conduct, to elect such officers as it may deem necessary for the proper and con- venient transaction of business of the convention, and to prescribe their duties ; to make provisions for the publication of its proceedings, or any parts thereof, dur- ing its session; to provide for the publi- cation of the debates and proceedings of the Convention in durable form, and for securing of a copyright thereof for the State ; and to fix and prescribe the time and form and manner of submitting any proposed revision, alterations or amend- ments of the Constitution to the electors of the State; also the notice to be given of such submission ; provided, that all amendments adopted or recommended by the Convention shall be submitted sepa- rately for the approval or rejection of the legal voters at the election to be held for that purpose. Section 10. Be it further enacted, That the election at which said submis- sion shall be made shall be held and con- ducted the same as elections for mem- bers of the House of Representatives, as far as practicable, and the vote cast for and against such proposed revision, al- terations or amendments, and those cast for and against each of the same sepa- rately submitted, shall be entered on the tally sheet, counted, certified, trans- mitted and canvassed, and the result thereof declared in the manner prescribed by law for the counting, certifying, trans- mitting and canvassing of votes cast for the election of members of the House of Representatives, as far as applicable. And all the provisions of the laws rela- tive to elections shall apply to said elec- tion, as far as applicable. Section 11. Be it further enacted. That candidates for members of the Con- stitutional Convention shall be nominated as candidates for members of the Lower House of the General Assembly are then nominated, and the laws governing nom- inations of candidates for members of the Lower House of the General Assembly and providing for the placing of their names on the ballots shall also apply to the nominations of candidates for mem- bers of the Constitutional Convention and the placing of their names on the ballots. Section 12. Be it further enacted. That the journal and proceedings of said convention shall be filed and kept in the office of Secretary of State. Said Sec- retary of State shall furnish said con- vention with all needed stationery, and shall do such other things relative to the distribution and publication of matter pertaining to the convention as it may require. He shall forthwith cause such number of copies of this Act to be pub- lished and transmitted to the Commis- sioners of election in the State as will be sufficient to supply a copy thereof to each officer of election in their respective counties, and such commissioners of elec- tion shall distribute the same to such offi- cers of election. Section 13. Be it further enacted. That the expenses of holding and con- ducting said election shall be paid as now provided by law for the election of members of the GJeneral Assembly, and STATE CONSTITUTION-MAKING. 465 that the expenses of holding said Con- vention and per diem and expenses of the members thereof shall be paid on war- rants on the Comptroller out of any money In the treasury not otherwise ap- propriated; provided, that all accounts and expenses, etc., shall be certified to and approved by the President of the Convention. The delegates shall be al- lowed and paid $4.00 per day and $4.00 a day additional for board and expenses, and the same rate of mileage as now al- lowed by law to representatives of the General Assembly. Section 14. Be it further enacted, That this Act take effect from and after Its passage, the public welfare requiring it. Passed May 12, 1915. Wm. p. Coopek, Speaker of the House of Representatives. Albert E. Hill, Speaker of the Senate. Approved May 17, 1915. Tom C. Rye, Governor. 4. Pending Equal Suffrage Amendment. Senate Joint Resolution No. 34. That Article IV, Section 1, of the Con- stitution of the State of Tennessee be amSnded so as to read as follows : Every person of the nge of twenty one years being a citizen of the United States, and a resident of this State for twelve months and of the County where- in he or she may offer his or her vote for six months, next preceding the day of the election, shall be entitled to vote for members of the General Assembly and other civil officers for the County or district in which he or she resides ; and there shall be no qualification attached to the right of suffrage except that each voter shall give to the judges of election wiere he or she offers to vote, satisfac- tory evidence that he or she has paid the poll-tax assessed against him or her, for such preceding period as the Legisla- ture shall prescribe, and at such time and in such amounts as may be prescribed by law ; without which his or lier vote can- not be received. And all male citizens of the State shall be subject to the performance of military duty within such ages as may be prescribed by law. The General Assembly shall have power to enact laws requiring voters to vote in the election precincts in whicli they may reside, and laws to secure the freedom of elections and the purity of the ballot box. Adopted 1-29-15. Albert E. Hill, Speaker of the Senate, Wm. p. Cooper, Speaker of the House of Representatives. Approved Mch 15, 1915. ToM C. Rye, Governor. Approved Mch. 15, 1915. 30 INDEX TO TEXT. Adams, H. C, quoted, 270. Administration (see also appointment, centralization, civil service, experts, fee system, governor, public officers, recall, removal, short ballot), 85, 200iif., 216fl., 360, 364, 366, 370, 371. Administrative department, 204. Administrative efficiency, 85, 91, 93, 202fe., 338, 370. Administrative tribunals, 204. Advisory opinions, 223, 228-9, 372. Alabama, constitution of, 77, 115, 120, 122, 123, 167, 172, 177, 179, 210, 213, 262, 263, 275, 341. Amendments (see also constitutional con- vention), 57, 78, 82, 89, 34Gff., 367 ; dis- cussion, 340, 351; initiative, 350, 351; proposed by legislature, 346fE. ; Tenn., 55, 57, 65, 220-1, 349, 354ff., 359ff. Appointment to office, 33^, 86, 87, 150. 152-3, 158-9, 203, 209, 214, 215, 221, 223, 370, 371. Appropriation bills, 33, 46, 54, 82, 94, 171, 172, 174, 191, 197, 242, 245, 246, 247, 252, 255, 371 ; extraordinary procedure, 248 ; veto of items, 72, 84, 164, 176, 191, 236, 243, 248, 371. Aristotle, 137. Arizona, constitution of, 122, 126, 128, 165, 166, 167, 192, 195, 262, 282, 284, 287, 290, 291, 305, 350. Arkansas, constitution of, 123, 230, 265, 291, 336-7, 347, 350. Assessment, 97, 217, 266-7, 260, 296, 366; Kentucky proposal, 267. Attorney general, 49, 50, 55, 63, 205, 209, 215 Auditor, 205, 215. Bagehot, Walter, quoted, 138. Ballots, 90, 126, 134, 158, 194, 349. Beard, Obas. B., quoted, 142, 146, 150, 152, 156, 157, 158. Bifurcated session. 168, 366. Bigelow, Herbert S., 91. Biukerd, Robert S., quoted, 309. Blackston^s Commentaries, 137. Blount, Wm., quoted, 39. Board of Control, 252, 2.55. Bryce, James, 142. Budget (see also appropriation bills, rev- enue bills), 94, 147, 240fE., 255, 362, 371, 372; California, 252; England^ 241, 253; New York proposal, 242; Tennes- see, 255, 362, 371, 372. Burgess, J. W., quoted, 142-3, 236. Burke, Edmund, quoted, 145. Burton, M. L., quoted, 103. Butler, N. M., quoted, 1. Bynum, W. P., quoted, 141. Caldwell, J. W., quoted, 57, 59. California, constitution of, 71, 115, 120. 127, 168, 181, 192, 193, 194, 209, 210, 252, 267, 286, 288, 297, 304, 306, 338, 342, 350. California publicity pamphlet, quoted, 332. Capital punishment, abolition of, 81, 367. Carmack, E. W., quoted, 254. Cawcroft, Ernest, quoted, 333. Centralization in government, 91-93, 156, 159, 203, 334, 363, 370. Chamberlain, Joseph, 281. Chattanooga, park commissioners, 333. Checks and balances, see separation of powers. Childs, R. S., quoted, 151, 335. Cities (see also due process of law, emi- nent domain, excess condemnation, franchises, home rule, iwlice power, public utilities), 90, 295ff., 313ff., 322ff., 366 ; administrative supervision, 308 ; charter, 301fE., 313, 320n; city plan- ning, 322ff. ; classification, 90, 299 ; com- mission government, 31flC., 321 ; EJurope, 321 ; governmental develop- ment, 297, 314; height of buildings, 328; local legislation, 297, 298, 360; manager, 318ff., 321 ; mayor and coun- cil, 314, 315 ; Tennessee, 312, 321, 333- 4, 366. City planning, sees cities. Civil service, 89, 202, 217, 220, 340, 362, 366, 371, 372. Cleveland, Frederick A., quoted, 240-1. Colorado, constitution of, 129, 172, 192, 210, 236, 237, 265, 207, 272, 274, 284, 287, 290, 301, 302, 304, 306, 342, 347, 350. Committees, see legislative committees. Comptroller, 63, 215, 252, 366. Compulsory voting, 124. Connecticut, constitution of, 154, 257, 346. Conservation of natural resources, 63, 85, 88, 97, 277ff., 289fC.,.366, 376; forests, 290; human resources, see social wel- fare ; mines. 291 ; taxation and, 88, 260, 291', 361, 366 ; Tennessee, 63, 293-4, 366, 372 ; water power, 291-2, 372. (4fi7) 468 STATE CONSTITUTION-MAKING. Constitutional ConvKntion (see also amendments). 50, 63-4, C5, 89, 92, SSlfE ; bow called, 80-1. 89; legal status of, 355-6; periodical vote upon, 92, 352; Tennessee, 41, 50-2; 5T, 57-8ff., 63-4, 65, 354ff. Constitutions, see state constitutions. United States, unwritten constitutions. Corporations (see also public uillties), 59, 63. 79, 88, 181, 186, 209. Corrupt practices, 50, 61, 122. Council of state, 33, 34, 162, 213. Counties (see also courts, county), 87, 95, 96, 334fE., 362; city and county, 341-2; commission, 338, 340, 362; finances, 337 ; general discussion, 324ff., 342 ; government. 95, 96, 336-7, 338, 342, 343, 362; borne rule, 95, 338ff., 362; state rigbts, 341 ; Tennessee, 343, 362 ; variations, 3^5-6. Countv officers (see also .iustiees of the peace), .36, 50, 52. 56, 62, 360. Courts (see also advisory opinions, judges, .iudicial procedure, judicial re- view, recall of judicial decisions, trial by jury), 32, 48, 52, .55, 85, 86, 96, 138, 161, 222ff., 360, 362, 363-4, 371-2; eban- cery (separate from law), 48, 2.32, 364; conciliation, 86; county, 229. 230, 239, 324-6, 331, 332. 350, 362 ; decisions, 228 ; function of. 222-3, 371-2 ; general trial, 224, 229, 232, 239 ; and basty legislation, 161 ; last resort, 32. 85. 96, 223ff., 239, 364 ; special, 96, 224 ; Tennessee, 22, 48, 52, 55, 380, 362, 363-4, 371-2. Ci-iminal coists, 364, 367. Crotbers, S. M., quoted!, 102. Cumberland, 40. Cusbman, R. E., quoted, 327, 329. Dawson, Edgar, quoted, 150. Dayton, city manager, 319. Dealey. J. Q., quoted, 170. Debt, see public credit. Declaration of rights, 30, 31, 44, 45, 53, 59, 60, 74ff.. 81, 279. Delaware, constitution of, 123, 165, 209, 212, 230, 266, 272. .346. Democracy, 21, 32, 50, 53, 57, 58, 70, 91, 99, 102, 103, 106, 121, 129, 135. 137, 138, 152, 162, 15], 153, 188, 198, 216, 218, 235, 241, 243, 270, 271. 292, 365, 368ff., 373-4; efficiency in, 368, 372. 373; es- sentials of, 21, 373-4; popular intelli- gence and, 21, 373-4. Des Moines commission government. 317. Direct primaries, 120-1. 1,34, 159. Distribution of powers, 53, 81, 137, 140. Divorces, 56. Dodd, W. F., quoted, 72, 349, 350. Duelists, 56, 89. Due process of law, 45, 77, 79, 235, 279, 282, 289. Eckert, F. W., quoted, 110. Economics in constitutions, 36, 42, 53, 59. 80, 137, 143-4. Education, 21, 36, 56, 62. 79, 86, 210, 216, 261, 262, 204, 274, 287, 373-4; democ- racy, 21, 373-4 ; taxation, 261, 262, 264. Educational qualification, see electorate. Efficiency and economy commissions, 202. Elections (see also corrupt practices, di- rect primaries, initiative and referen- dum, nomination, preferential voting, ' > proportional representation, registra- tion), 86. 118fr., 165-6, 367; by ballot, 86, 125-6,, 133; campaigns, 122; con- tests, 128; count, 127; general discus- sion, 118-19, 128-9, 133; officers, 124-5; plurality choice, 127n, 128, 130-31 ; Ten- nessee, 46, 61, 133-4, 367. Electorate, 32, 45, 53, 60, 62, 99ff. ; organ .of government. 99, 104; qualifications. 99fC. ; miscellaneous, 99; sex. lOOff. (see woman suffrage) ; educational, 100. 11 Iff., 114, 115, 116; property, 32, 53, 100, 113, 114, 110; poll tax. 100, 116; alternative, 114; grandfather clause. 100, 114, 115-17 ; Tennessee, 45, 53, 60, 62, 117. Eminent domain, 323-4, 328. Employers' liability, 280. England, government in, 23, 136, 137, 144ff., 162, 169, 178, 184, 253, 321. Equalization, 212, 268. 269. Europe, government in (see also E)ug- land, Germany). 185, 308, 321. Excess Condemnation, 90. 328ff. ; consti- tutional clauses. 329-30; discussion of, 331ff . ; . unearned increment, 332-3. Executive department, 85, 202, 205. Experts, 184, 202. 218, 374. Expropriation, see eminent domain. Fee system, 230, 337, 360, 363, 367 ; Ten- nessee. 360, 363, 367. Finance, see budget, fee system, public credit, taxation. Florida, constitution of, 166, 176, 210, 226, 264. , , Ford, Henry J., 146 ; quoted, 135. Franchises. 191, 313, 314, 325. Pranldin, state of. 39, 41, 43. Freund, Ernest, quoted, 181, 182, 183, 184, 185. STATE CONSTITUTrON-MAKING. 469 Fundamental constitutions of Carolina, 21, 22. Funding board, 277. Galveston commission government, 316. Garrison, L. M., quoted, 103. Georgia, constitution of 166, 171, 172, 183, 236, 261, 264. Germany, government in, 184, 321. Goodnow. F. J., 140; quoted, 308, 300. Government (see also democracy, govem- tal reorganization, separation of povfers), 2111., 109, 205 292-3, 368ff. efficient, 30)9, 373; evolution, 21fE 135ff., 200 ; executive organ of society, 292-3, 368ff. ; function two-fold, 205, 369, 372; fundamental problem, 21 373 ; and individual welfare, 372. Ten- nessee, see references under Tennes- see, constitution of. Governmental reorganization, 93, ' 146, 148. 159, 204, 370fe. Governor (see also administration, ap- pointment to office, budget, removal from office), 34, 35, 47, 54, 55, 61, 64, 175ff.. 190, 195, 200fC., 249, 360, 366, 367, 370; leadership, 04, 143, 149-50, 185. 203, 370, 372; legislature, relations with, 47, 147, 149, 175-6, 185, 220, 242, 245, 370, 372 ; powers and daities, 35, , 165, 205fE., 208, 212, 220, 366, 367; qual- ifications. 47, 54, 207, 220; respon- sibility, 370; Tennessee, 47, 54, 55, 61, 64, 220fC., 360, 366, 367. Hadley, A. T., quoted, 236. Hale, Annie Riley, quoted, 108. Health laws, 278. Hedges, Job E., quoted, 151. Hoag, C. G., quoted, 129, 132. Home rule (see also counties), 89, 95, 181, 295ff., 366, 371; city state, 312; constitutional law, 303fC. ; EJurope, 308 ; framing charters, 301ff., 311fC. ; general laws, 289, 299 ; local veto, 299, 300, 311 ; New York, 95. 299, 310-12; presump- tion of law, 308, 309; Tennessee, 312, 366, .371. Howe, Fredericii C, quoted, 148. Hughes, Chas. E., 121n ; quoted, 292. Idaho, constitution of, 171, 172, 287, 348. Illinois, constitution of, 163, 203, 249, 252, 266, 291, 300, 347. Illinois efficiency and economy commit- tee, 202fe. Impeachment, 31, 34, 48, 62, 211, 213, 221, 239, 364. Indiana, constitution of, 154, 171, 172, 175. Individualism, 2^-3, 137. Information, prosecution on, 364. Initiative and referendum, 71, 82, 83, 91. 92, 169-60, 187ff., 259n. ; 365, 370; di- rect and indirect initiative, 82, 189, 196, 197 ; emergency acts, 189, 190, 191, 196, 197; Illinois statute, 188; local, 90, 191, 199, 317, 321; Maryland, 191; Ohio, 82ff. ; Oregon, 190 ; percentages required for petition, 189n; South Da- kota, 188-90, 197; Tennessee, 199, 365, 370. Insurance, 87, 306 ; state, 306. Internal improvements, 52, 56, 270-71. International tax association, quoted, 2&6-7. Iowa, constitution of, 165, 236, 274. Jackson, Andrew, 52, 57 ; quoted, 139. Jefferson, Thos., 292; quoted, 51, 139. Johnson, Andrew, quoted, 58. Johnson, R. U., quoted, 103. Joint resolutions, 61, 185, 347. Judges (see also t*ourts, .iustices of the peace), 80, 97, 209, 210, 222ff., 239; ad- ministrative otecers, 222-3 ; appointed, 34, 209, 210, 223, 371-2; elected, 55, 86, 223 ; non-.iudicial functions, 215 ; quali- fications, 224-5, 239; removal, 97, 226, 239. Judicial department, 85. 95. 181, 222. Judicial procedure, 89, 96, 227, 231, 233, 239. ' Judicial review, doctrine of, 35-6, 48-9, 85, 138, 139, 150, 177, 181, 183, 224, 228, 233fe. ; Kentucky controversy, 48; Ten- nessee, 48-9. Jurisprudence, 89, 237. Jury, see trial toy jury. Justices of .peace, 36, 47, 50, 209, 210, 229, 230-1, 239, 312, 343, 364. Kansas, constitution of, 347. Karns, T. C, quoted, 298. Kent, James, quoted, 105n. Kentucky, constitution of, 74, 122, 128, 170, 179, 259, 285. 299, 347, 353. Labor, see social legislation. La Follette, R. M., 147. Lands and land holding, 31, 32, 36, 37, 38, 39, 44, 52. Law and equity, see courts. Law, interpretation of (see also courts), 22, 222ff. Law of the land, see due process of law. 470 STATE CONSTITUTION-MAKING. Legislation (see also appropriation bills, revenue bills, special legislation, social legislation), IGlff., 167, 172, 177; ex- pert drafting, 184; output, 161, 167, 177, 185; riders, jokers, freaks, 162n, 246, a^ ; style requirements, 183. Legislative committees, 83, 169ff., 173, 178, 186, 206, 255. Legislative department, 81. Legislative procedure, 33, 46-7, 61, 84, 171fC., ISlfC. Legislative responsibility, 187, 370. Legislators, 32, 46, 54, 83, 162ff., 370. Legislature, 32, 33, 46, 48, 54, 55, 56, 61, 81, 161fe., 365, 367; apportionment, 33, 34, 46, 54, 87, 92. 163-4, 185 ; decline of, 149, 180, 181, 182 ; elections, by, 33, 34, 48, 55, 153, 179, 209-10, 214-15 ; officers, 33, 34, 48, 55, 168-9; restrictions upon, 56, 84, 171ff., ISlfC., 187fe. ; separation of powers, 138 ; Tennessee, 46, 48, 54-5, 56, 61, 185-0, 360, 365, 367 ; unicameral, 41, 13*5, 148, 180, 315, 365. 370. Lieutenant governor, 85, 206. 213, 366. Liquor traffic, 89, 103, 109, 125, 191, 367. Local self-government, 295, 344. Locke, John, 137, quoted, 21, 22. Los Angeles County, 340. Louisiana, constitution of, 74, 115, 120, 126 127, 128, 172, 181, 212, 247, 248. 262, 266. Lowell, A. L., quoted, 59, 174n, 198, 218, 859. Macy and Gannaway, quoted, 160. Magna Charter, 23. Maine, eonstituiion of, 192, 209. Marling, A. E., quoted, 333. Marshall. John, 22, quoted, 234. Maryland, constitution of, 122, 123, 124, 128, 164, 165, 171, 172, 173, 188, 191, 210, 226, 227, 230, 261 274, 314. Massachusetts, constitution of, 70, 74, 114, 166, 171, 188, 213, 260, 262, 329, 331, 346. McBaln, I-I. L., quoted, 305-6, 310. McLaughlin, A. C, quoted, 234. A|eckleDl)urg Declaration, 24. Memphis, commission government, 316 ; park commis.sion, 333. Michigan, constitution of, 101, 128. 171, 192, 196, 230, 232, 2.50, 284, 287, 288, 290, 300, 305, 342, 350. Military, subordinate to civil authority, 31, 75, 293. Militia, 35, 50, 61, 78, 87, 220, 366, 367. Mills, O. L., quoted, 149. Minnesota, constitution of. 172, 273, 290, 301, 302, 305. Minority representation, 130-131, 163. Mississippi, constitution of, 120, 123, 171, 173, 174, 178, 182, 210, 231, 232, 262, 266. Missouri, constitution of, 164, 165, 166, 182. 213, 265, 301, 305, 350. Montana, constitution of, 172, 285, 287, 290, 847, 348. Montesquieu, C'has. de Secondat, Baron de, 30, quoted, 136-7. Montessori, M., 151. Municipal corporation, see cities. Munro, W. B., quoted, 297, 308. Nebraska, constitution of, 165, 171, 172, 194, 196, 249, 267, 274, 360, 353. Nevada, constitution of, 189, 350. New Hampshire, constitution of, 140, 166, 171, 225, 263, 345, 346, 353. New Jersey, constitution of, 153, 174, 183, 210. New Mexico, constitution of, 124, 166, 167, 171, 175, 188, 193, 266, 267, 287, 290, 348, 3.53. New Orleans, commission government, 316. New York, constitution of, 123, 124, 164, 166, 167. 174, 202. 209, 210, 234, 248, 249, 257, 272, 290, 299-300, 330, 331, 340. Convention of 1915, 70, 91ff., 242- 3, 274, 310-11; finance, 94, 242-3, 274; governmental reorganization, 93 ; home rjile, 95, 310-11 ; labor, 97. Nicholson, A. O. P., quoted, 64. Nolen, John, 338. Nominations, 119-22. North Carolina, constitution of, 29ff., 75, 115, 124, 150, 174, 205, 257, 262, 272, 348. North Dakota, constitution of. 124, 172, 188, 189. 267, 288, 350, 351. Norton, Chas. D., quoted, 251-2. Ogg, F. N., quoted, 178. Ohio, constitution of, 80fC., 120, 129, 236, 261, 262, 263, 284. 286, 290, 291, 802, .3.30, 331, 350. Convention of 1912, 70, 80ff., 3.54; home rule, 89; initiative and referendum, 82, 83, !V2, 189, 192. Oklahoma, constitution of, 69. 115, 120. 153, 164, 170, 183, 192, 193, 195, 205, 226, 262, 260, 285, 288, .305, 338, .3.89. Ordway, Samiiel H., quoted, 202. Oregon, constitution of, 120, 125, 129, 180, 166, 171, 172, 190, 213, 228, 804, 806, 346, 350. Oregon plan, 148. STATE CONSTITUTION-MAKING. 471 Organization of government, see adminis- tration, government, governmental re- organization, separation of powers) short ballot. Overton, John, quoted, 49. Pardons. 47, 200, 367. Parkinson, T. I., quoted, 283. Peck, Jacob, quoted, 143. Penn, Wm., quoted, 345. Pennsylvania, constitution of, 75, 124. 174. 179, 209, 290, 291. Pleading and practice, code of, 231, 364. Police power, 279, 326. 327. Political machine, 126-7, 142, 150, 157, 170. Political parties, 92, 103, 126-7, 141ff., 146, 150. Polk, Jas. K., 58. Poll tax (see taxation) ; qualification, for voting, 100, 114. Popular sovereignty, 868. Pound', Koscoe, quoted, 238. Powell, T. R., quoted, 104, 105, 141. Preamble, 41, 73. Preferential voting, 86, 128ff. Property qiualification (see electorate) ; office, 32, 33, 46, 47. Proportional representation, 128fC., 134, 365, 370. Public credit, 62, 63, 81, 87, 95, 187, 213, 270ff., 313-4, 361 ; localities. 90, 95, 275, 313-4, 361 ; serial bonds, 274 ; Tennes- see, 62, 63, 277, 361. Public defender, 364. Publicity pamphlet, 193-4, 332. Public office, popular attitude toward, 200, 201; control of, see short ballot, recall. Public officers (see also administration, appointment, recall, removal ; also par- ticular officers), 150, 201, 203, 209, 210, 212, 214, 215, 221, 366. Public opinion, 100, 3.59. Public opinion system, Illinois, 188. Public utilities, 78, 87, 90, 313-4, 366. Ransom, Wm. Li., quoted, 233. Recall, 28-9, 91-2, 149, 211, 219-20, 365. Recall of Judicial decisions, 237. Reconstruction measures, overthrow of, 60ff. Referendtim, see initiative and referen- dum. Registration, 123, 134. Reinsch, P. S., quoted, 170. Religion, In constitutions, 44, 50, 56, 60, 63, 77. Removal from offlce (see also recall), 84, 150, 202, 211, 212, 371. Revenue bills, 174, 244, 249. Revision of constitution (see also amend- ment, constitutional convention), 25, 345ff. Rhode Island, constitution of, 69, 113, 171, 225, 236. Road-building, 366. Robertson, James, quoted, 38, 118. Robinson, C. M., quoted. 323. Roosevelt, Theodore, 107 ; quoted, 107, 278. Root, Elihu, 91; quoted, 109. Rural Credits, 367. Ryan, Oswald, quoted, 318. Salt, B. M., quoted, 147. San Lorenzo Treaty, 41. Seager, H. R., quoted, 286, 289. Secretary of state, 48, 128, 193, 205, 209. 210, 214, 366. Seligman, E. R. A., quoted, 240. Sentinel, Knoxville, quoted, 363. Separation of powers (see also govern- mental reorganization), 30, 32, 44, 54, 81, 135-7, ISSfC., 234; budget, 254; checks and balances, 64, 137, 369 ; com- pared to Trinity, 143 ; Tennessee, 44, 54, 143, 150. Sevier, John, 118. Short ballot (see also administration, ap- pointment, government, governmental reorganization, judges), ISlfC., 202, 366. 371; democracy, 153, 157, 200; Kentucky convention, 154-5; New York convention, 155-6; related movements, 159-160; Tennessee, 160-61, 366, 371. Single tax, see taxation. Smith, Munroe, quoted, 105, 106. Social consciousness, 292. Social legislation (see also due process of law, health laws, police powers, so- cial consciousness, social rights), 84, 97, 108, 109, 144, 277ff., 367, 371 ; chil- dren, 284fif.. 287fif., 293, 294; eight-hour day, 84, 284 ; general discussion, 288fC., 292; mechanics lien, 84; minimum wage, 84. 284, 28ofC. ; model clause, 289; occupational (Jlsease, 97 ; prison labor, 84 ; Tennessee, 293-4, 367, 371 ; -women, 2&4ff., 2S7ff., 293; workman's compen- sation, 84, 97, 144, 280£E., 294, 367. Social rights, 60. 79. Social welfare, 277fe. Sociological jurisprudience, 237. South Carolina, constitution of, 122, 175, 168, 210, 224, 230, 232, 236, 260,, 262, 346. 472 STATE CONSTITUTION-MAKING. South Dakota, constitution of, 188, 189. Southwest territory, 41, 43. S'pecial assessments, 90, 331, 334. Special legislation, 63, 90, 93, 95, 135, 177ff., 186, 231, 297, 360, 365, 367, 371. State constitutions (see also amendment, constitutional convention, declaration of rights, preamble, each state by name), 21-374, esp. 21fl:., 71fC. ; distinc- tion from statute, 71-2 ; essential ele- ments, 25, 73; evolution, 21ff., 70fe., 135ff. ; function, 24; groups, 70ff., 98; length, 30, 42, 52, 59, 69, 71, 81, 98, 181 ; methods of subdivision, 41, 52, 59 ; reasons for, 24; typical, 73. State govermnent, see government, gov- ernmental reorganization, separation of powers, state constitutions. State manual, 204. Statutes, see legislation. Staunton, city manager, ■ 319. Suffrage (see also electorate, woman "suffrage) ; negro, 61, 71, 112; man- hood, 45, 60, 62, 117. Sumner, Helen L., quoted, 110-11. Supreme court, see courts. Switzerland, direct legislation, 188. Taft, W. H., quoted, 109. Tanzer, Laurence A., quoted, 309, 310. Taxation (see also assessment, equaliza- tion, special assessments), 42, 43, 44, 52, 53, 60, 61, 88, 92, 97, 187, 256ff., 296, 343, 359, 360, 361. 366, 367; classifica- tion, 259, 361 ; exemption, 42, 43, 53, 60, 257, 263, 278, 361, 367; general property, 60, 88, 257, 259, 260, 268, 361 ; home rule, 265, 361; income, 60, 88, 261-2, 361; inheritance, 88, 260, 262-3, 269 ;, poll, 43-4, 53, 61, 88, 261, 268, 269 ; public bonds, 88, 268, 361, 367; separa- tion of sources, 259, 360-1 ; single tax, 263, 360; Tennessee, 42, 43, 44, 52, 53, 60, 61, 268-9, 360, 361, 367. Tax commission, 267, 269. Taylor, O. F., quoted, 148. Tennessee, constitution of (see also sub- head Tennessee under more important headings). Part 1, Part 3, notes at end of each chapter of Part 2; of 1796, 37ff., 117, 150; of 1834, 5]ff., 117, 150; of 1870, 57ff., 117, 150, 165, 168, 172, 179, 230, 262, 347, 349; efforts to amend, 65; proposed changes, 359ff. Tennessee, economic development of, 37fC., 40, 42ff., 51, 52, 54, 58, 64ff. Tennessee history, 29fiC., 37ff., 51ff., 56, 57ff., 64-5. Tennessee polities, 65, 359fC., 368ff. ; fun- damental problem, 368ff. ; immediate problems, 359£E., 372. Texas, constitution of, 172, 173, 210, 248, 264, 305. Times, New York, quoted, 107. Titles, registration of, 85, 367. Torrens system, see titles, registration of. Toulmin, H. A., Jr., quoted, 320. Town, New England, 335, 344. Township, 87, 335-6. Treasurer, 205, 212, 215, 246, 250, 366. Trial by jury, 31, 76, 81, 96, 280, 363, 367. I'urgot, Anne Robert Jacques, 142; quoted, 136. Unconstitutionality of iaws, see judicial review. United States, congress, 162; constitu- tion, 25, 41, 71, 115, 150. Unwritten constitutions, 23-4. U'Ren, W. iS., 148. Utah, constitution of, 116, 266, 287, 288, 290. Vermont, constitution of, 166, 167, 179, 213, 261. Virginia, constitution of, 114, 115, 122, 126, 127, 154, 162, 173, 176, 178, 181, 209, 236, 272, 314, 319. Votei'S, see electorate. Voting machines, 127. Waite, M. R., quoted, 235. Washington, constitution of, 77. 167. 176, 194, 195, 266, 274, 304. Water power, see conservation. Wells, H. G., quoted, 144, West Virginia, constitution of, 123, 165, 166, 171. 214, 229, 274, 337. White, Edw. D., quoted, 116. Whitten, Robt. H., quoted, 323. Wilson, Woodrow. 143, 147 ; quoted, 72, 102, 121, 145, 146, 1.58. 216, 217, 218, 254, 256, 269, 293. Wisconsin, constitution of. 101, 248, 2(i2, 290, 291, 330, 331. Wificonniii State Journal, qtioted. 152. Woman suffrage, 81, 92, lOOff., 165, 367; current opinion, 100, 102ff; effect on home life, 103, 1(X), 111; Illinois stat- ute, 101 ; and office building, 165 ; Ten- nessee, 117, 367. Woodruff, C. L., quoted. 142. World, New York, quoted, 102. Wyoming, constitution of, 75, 113, 127, 172, 210, 260, 267, 282, 285, 287, 288, 291, 348. itn-^i d:(HlJt^^£^fe^>ja^^f^-^