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CHAPTER XLV

REMEDIES FOR THE FAULTS OF STATE GOVERNMENTS

THE defects in State governments, which our examination of their working has disclosed, are not those we should have expected. It might have been predicted, and it was at one time believed, that these authorities, consumed by jealousy and stimulated by ambition, would have been engaged in constant efforts to extend the sphere of their action and encroach on the National government. This does not happen, and seems most unlikely to happen. The people of each State are now not more attached to the government of their own commonwealth than to the Federal government of the nation, whose growth has made even the greatest State seem insignificant beside it.

A study of the frame of State government, in which the executive department is absolutely severed from the legislative, might have suggested that the former would become too independent, misusing its powers for personal or party purposes, while public business would suffer from the want of concert between the two great authorities, that which makes and that which carries out the law.

This also has proved in practice to be no serious evil. The legislature might indeed conceivably work better if the governor, or some of his chief officials, could sit in it and exercise an influence on its deliberations. Such an adaptation of the English cabinet system has, however, never been thought of for American States; and the example of the Provincial legislatures of Canada, in each of which there is a responsible ministry sitting in the legislature, does not seem to recommend it for imitation. Those who founded the State governments did not desire to place any executive leaders in a representative assembly. Probably they were rather inclined to fear that the governor, not being account

able to the legislature, would retain too great an independence. The recent creation of various administrative officers or Boards has gone some way to meet the difficulties which the incompetence of the legislatures causes, for these officers or Boards frequently prepare bills which some member of the legislature introduces, and which are put through without opposition, perhaps even without notice, except from a handful of members. On the whole, the executive arrangements of the State work well, though they might, in the opinion of some judicious publicists, be improved by vesting the appointment of the chief officials in the governor, instead of leaving it to direct popular election. This would tend to give more unity of purpose and action to the administration. The collisions which occur in practice between the governor and the legislature relate chiefly to appointments, that is to say, to personal matters, not involving issues of State policy.

The real blemishes in the system of State government are all found in the composition or conduct of the legislatures. They are the following :—

Inferiority in point of knowledge, of skill, and sometimes of conscience, of the bulk of the men who fill these bodies. Improvidence in matters of finance.

Heedlessness in passing administrative bills.

Want of proper methods for dealing with local and special bills. Failure of public opinion adequately to control legislation, and particularly special bills.

The practical result of these blemishes has been to create a large mass of State and local indebtedness which ought never to have been incurred, to allow foolish experiments in law-making to be tried, and to sanction a vast mass of private enterprises, in which public rights and public interests become the sport of speculators, or a source of gain to monopolists, with the incidental consequence of demoralizing the legislators themselves and creating an often unjust prejudice against all corporate undertakings.

What are the checks or remedies which have been provided to limit or suppress these evils? Any one who has followed the account given of the men who compose the legislatures and the methods they follow will have felt that these checks must be considerable, else the results would have been worse than those we All remedies are directed against the legislative power, and may be arranged under four heads.

see.

First, there is the division of the legislature into two houses.

A job may have been smuggled through one house, but the money needed to push it through the other may be wanting. Some wild scheme, professing to benefit the farmers, or the cattlemen, or the railroad employés, may, during its passage through the Assembly, rouse enough attention from sensible people to enable them to stop it in the Senate. The mere tendency of two chambers to disagree with one another is deemed a benefit by those who hold, as the Americans do, that every new measure is prima facie likely to do more harm than good. Most bills are bad-ergo, kill as many as you can. Each house, moreover, has, even in such demoralized State legislatures as those of New York or Pennsylvania, a satisfaction, if not an interest, in unveiling the tricks of the other.

Secondly, there is the veto of the governor. How much the Americans value this appears from the fact that, whereas in 1789 there was only one State, Massachusetts, which vested this power in the chief magistrate, all of the present thirty-eight States except four (only one of these a new State) give it to him. Some Constitutions contain the salutary provision that the governor may reject one or more items of an appropriation bill while approving the bill as a whole; and this has been found to strengthen his hands immensely in checking the waste of public money on bad enterprises. This veto power, the great stand-by of the people of the States, illustrates admirably the merits of concentrated responsibility. The citizens, in choosing the governor to represent the collective authority of the whole State, lay on him the duty of examining every bill on its merits. He cannot shelter himself behind the will of the representatives of the people, because he is appointed to watch and check those representatives as a policeman watches a suspect. He is bound to reject the bill, not only if it seems to him to infringe the Constitution of the State, but also if he thinks it in any wise injurious to the public, on pain of being himself suspected of carelessness, or of complicity in some corrupt design. The legislature may, of course, pass the bill over his veto by a two-thirds vote; but although there may exist a two-thirds majority in favour of the measure, they may fear, after the veto has turned the lamp of public opinion upon it, to take so strong a step.. There are, of course, great differences between one governor and another, as well as between one State and another, as regards the honesty with which the power is exercised, for it may be, and

sometimes is, used by a 'Ring' governor to defeat measures of reform. But it is a real and effective power everywhere; and in such a State as New York, where the importance of the office often secures the election of an able and courageous man, it has rendered inestimable services.1

Thirdly, there are limitations imposed on the competence of the legislature. In the last chapter but one some of these limitations have been mentioned, the most numerous, and at present the most important of which relate to special and local (or what would be called in England "private") bills. I have remarked that these bills, while they destroy the harmony and simplicity of the law, and waste the time of the legislature, are also a fertile source of jobbery.2 To expunge them or restrict them to cases where a special statute was really needed, would be a great benefit. To some extent this has been effected by the constitutional prohibitions I have described. Illinois, for instance, has by such prohibitions reduced her sessional statutes to about 300

1 It may be suggested that the existence of this ultimate remedy tends to make good members relax their opposition to bad bills, because they know that the veto will kill them. This sometimes happens, but is a less evil than the disuse of the veto would be.

2 "In twelve States the legislature is forbidden to create any corporation whatever, municipalities included, except by general law, and in thirteen others to create by special Act any except municipal corporations, or those to which no other law is applicable. In some States corporations can be created by special Act only for municipal, charitable, or reformatory purposes. Such provisions are not intended to discourage the formation of private corporations. On the contrary, in all these States general laws exist under which they can be formed with great facility. Indeed the defects in some of these statutes, and their failure to provide safeguards against some at least of the very evils which they were intended to meet, might well suggest to legislators the question whether in avoiding the Scylla of special legislation they have not been drawn into the Charybdis of franchises indiscriminately bestowed. Perhaps the time will come when recommendations such as those urged by the New York railroad commission will be acted on, and the promoters of a new railroad will be obliged to furnish some better reason for its existence, and for their exercising the sovereign power of eminent domain, than the chance of forcing a company already established to buy them out-or, failing that, the alternative of being sold out under foreclosure, pending a receivership."-Hitchcock, State Constitutions, p. 36.

"The legislature which can grant or withhold chartered privileges at pleasure wields an immense power. And it will also readily be seen what a great field for favouritism and jobbery exists, when special Acts of incorporation are required for each case in which special favours and special privileges may be given away by a legislature that may be corruptly influenced, without imposing any reciprocal obligation on the corporation. It will be safe to say that fully two-thirds of the lobbyism, jobbery, and log-rolling, the fraud and trickery that are common to our State legislatures, is due to this power of creating private corporations."--Ford, Citizens' Manual, ii. p. 68.

pages, and Iowa averages only 200-250 pages, whereas the Wisconsin statutes of 1885 reached 2000 pages, there being in that State far less effective restrictions.1 But the powers of evil do not yield without a battle. All sorts of evasions are tried, and some succeed. Suppose, for instance, that there is a prohibition in the Constitution of New York to pass any but general laws relating to the government of cities. An Act is passed which is expressed to apply to cities with a population exceeding one hundred thousand but less than two hundred thousand. There happens to be only one such city in the State, viz. Buffalo, but as there might be more, the law is general, and escapes the prohibition.

I owe to the kindness of a legal friend a very recent instance of another way in which the provisions against special legislation are evaded, viz. by passing Acts which, because they purport to amend general Acts, are themselves deemed general. The Constitution of New York prohibits the legislature from passing any private or local Act incorporating villages, or providing for building bridges. A general Act is passed in 1885 for the incorporation of villages, with general provisions as to bridges. Next year the following Act is passed, which I give verbatim. It amends the Act of 1885, by taking out of it all the counties in the State except Westchester, and then excludes application of the Act to two towns in Westchester. It is thus doubly a "private or local Act," but the prohibition of the Constitution is got round.

CHAP. 556.

AN ACT to amend chapter two hundred and ninety-one of the laws of eighteen hundred and seventy, entitled "An Act for the Incorporation of Villages."

Village Incorporation
Act of 1885, as to

bridges, to apply
only to parts of
Westchester County.

Passed June 4, 1886; three-fifths being present. The
People of the State of New York, represented in
Senate and Assembly, do enact as follows:-

Section 1.-Section two of chapter four hundred and fifty of the laws of eighteen hundred and eightyfive, is hereby amended so as to read as follows:

Section 2.-All of the counties in this State are hereby exempted from the provisions of this Act except the county of Westchester, but nothing in this Act contained shall be construed so as to apply to the towns of Greenburgh and Mount Pleasant in said county of Westchester.

Section 3.-This Act shall take effect immediately.

1 That the evil of special legislation is generally felt to be serious is proved among other things by the disabilities in this regard which Congressional statutes have imposed upon the legislatures of the Territories.

VOL. I

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