CONSTITUTIONAL LAW:
FEDERAL AND STATE

The development of American jurisprudence is conditioned largely by the Federal and State constitutions. Formal amendments to the Federal Constitution have proved difficult of accomplishment. Since 1804, only three amendments have been ratified, though more than two thousand are said to have been proposed.

Amendments to Federal Constitution. Following the recommendation of Pres. Taft in his special message June 16, 1909, the Sixty-first Congress proposed the following amendment to the Federal Constitution:

INCOME TAX. Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states and without regard to any census or enu meration.

It was deposited in the Department of State, July 31, 1909, and is to become "valid to all intents and purposes as a part of the Constitution, when ratified by the legislatures of three fourths of the several states." When originally introduced, it read: "The Congress shall have power to lay and collect direct taxes on incomes with

out apportionment among the several states according to population." In neither form was it subjected to debate in either House of Congress, nor did it meet with serious opposition, although one of its advocates said, "It is very defectively drawn." It passed the Senate unanimously, and the

The sections on Legislative Tendencies and Reform in Legal Procedure are contributed by JOHN BELL SANBORN, University of Wisconsin Law School.

House by a vote of 317 to 14. During 1909 it received but slight consideration from the states. The Legislature of Alabama ratified it Aug. 10th. During 1910 it has been ratified by the following states: Georgia, Illinois, Kentucky, Maryland, Mississippi, Oklahoma, and South Carolina.

Gov. Hughes in a special message to the New York Legislature on Jan. 5th opposed its ratification chiefly on the ground that the amendment would "subject to Federal taxation the incomes derived from bonds issued by the State itself, or those issued by municipal governments organized under the State's authority." He declared that "to place the borrowing capacity of the State and of its governmental agencies at the mercy of the Federal taxing power, would be an impairment of the essential rights of the states, which, as its officers, we are bound to defend." Senator Root sent a letter to the Legislature in support of the amendment. April 11th a memorandum was submitted in opposition to it by Joseph H. Choate, William D. Guthrie, Victor Morawetz, Austen G. Fox, John G. Milburn, and Francis Lynde Stetson, while Prof. E. R. A. Seligman supported it in an article published in the Political Science Quarterly, June, 1910.

Although this amendment has been rejected by some of the legislatures which have voted upon it, such rejection does not preclude a subsequent legislature of any of those states from ratifying it. Whether, on the other hand, a state which has ratified the amendment can withdraw such ratification, is a question yet to be settled by the courts. Ohio and New Jersey declared their consent to the fourteenth amendment withdrawn, and New York took similar action as to

town were permitted to assess abutting property for street improvements. The great length of legislative sessions and the bulkiness of their laws is, however, not due to any special provisions of the State constitutions, but to the spirit of the present age which looks to the legislature for the regulation of large fields formerly left entirely free from any restraint, or which were regulated entirely through the action of the courts acting in individual cases when redressing private wrongs. This demand upon the legislatures is not confined to this country, but its manifestations are seen in England and throughout the Continent. We are in what Prof. Dicey has well termed the collectivist period, as distinguished from the preceding individualistic period, where the influance of the laissez-faire school was predominant.

This tendency is shown by the modern legislation in the supervision and regulation in some degree at least of most of the phases of human activity. In this infinite variety the statute book of to-day is a great contrast to that of twenty or thirty years ago. The old laws concerned themselves largely with the necessary regulation of the various departments of government, and with the courts and their procedure, together with more or less modification or affirmance of the principles of the common law. Many of the subjects upon which we have recently had the greatest amount of legislation could hardly be found in an index to a volume of session laws issued twenty years ago.

Examples of Modern Legislation. -Because of the comparatively few sessions held during 1910 the laws of the year do not exhibit this tendency as fully as did those of 1909 and 1907. A few examples of the general tendency of regulation may be noted. The subject of public health is of special concern to the modern legislature. To secure this it was deemed necessary in 1910 to regulate in different states the conduct of various businesses, such as bakeries and plumbing, and to provide for clean linen, sanitary closets, window screens, etc., in hotels. Under the individualistic idea of government the securing of these things to the public would have been

left to the individual, who in theory would give his custom to the clean bakery and hotel, so that competition would compel the poorer to come to the higher standards or fall out of the race. Under the new theory the individual may not have the knowledge to bestow his custom intelligently, or he may not have a chance where all, with whom he trades in a certain line, are below a proper standard. But the legislation of 1910 goes even further. The individual is protected as against himself. In Massachusetts there may not be a public drinking cup for his use, although he is under no possible compulsion to use such a cup if it is provided.

The regulation of business, and particularly the business carried on by public service companies, is coming to be a generally recognized function of the Legislature. The same tendency appears in 1910 as shown in other years by the creation of commissions for the regulation of such companies or the extension of the jurisdiction of commissions already in existence. The regulation of private corporations is so far confined largely to the laws aimed at trusts or monopolies, one of the most extreme phases of which is seen in an act in Mississippi for 1910, which prohibits any corporation from purchasing a competing business. It is evidently framed without regard to the effect of such purchase upon competition, and the act prohibited is illegal even though no monopoly is thereby created.

In Ohio, an act was passed specially authorizing the attorney general to obtain an injunction against violators of anti-trust laws.

In New Jersey the State Board of Health secured statutory power to enjoin the pollution of streams.

Kentucky legalized agreements between growers of farm products to abstain from growing any kind of crops for any given period or season. (Chapter 117.)

Criminal Law. Another present legislative tendency which is exhibited during the year is the extension of the criminal law. This is shown in two ways. Common law crimes are subdivided

into sometimes rather minute fields, so that we have under new names things which were punish