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tively show to have been passed in accordance with constitutional requirements. In Mississippi no local or private bill may be passed by either house until it has been referred to a standing committee thereof and reported back with recommendations that it pass, stating affirmatively reasons therefor and why the purposes cannot be reached by general law or by court proceedings. If the recommendation be against the bill, it is not to pass the house unless by the affirmative vote of a majority of all the members elected thereto."
In England after having been especially examined by parliamentary officials designated for the purpose, private bills are divided about equally for convenient introduction into the two houses. The introduction of a private bill is equivalent to its first reading.
At its second reading debate may take place upon the principle of the measure, after which the bill, if opposed, is referred to a Private Bill Committee consisting of four members and a disinterested referee. If the bill be not opposed, i. e., if no adverse petition has been filed by property owners, corporations, or other interests, the committee of reference, under a standing order of 1903, consists of the Chairman and Deputy Chairman of Ways and Means, two other members of the House, appointed by the Committee of Selection, and the Counsel to Mr. Speaker. The committee stage of a contested bill assumes an essentially judicial aspect. Promoters and opponents are represented by counsel, witnesses are examined, and expert testimony is taken. After being reported by committee, the measure goes its way under the same regulations as those controlling the progress of public bills.
Somewhat similar-and forming an interesting departure from American custom-is the provision of the constitution of Virginia' that
consisting of seven
there shall be a joint standing committee members appointed by the House of Delegates and five members ap
'Addressing a New York audience in 1914, Mr. Albert Shaw, Editor of the Review of Reviews, said, "The people of New York have never understood how great are the advantages, on the side of good government, in those states which explicitly forbid, in their constitutions, all forms of local and special legislation. While a legislature like ours has hundreds or thousands of bills presented to it, the legislatures of certain other states-being prohibited from dealing with any measures except those of general state-wide application-are able to give their attention during the entire session to a very few measures dealing with general topics, in addition to financial affairs."-Proceedings of Academy of Political Science, V, 1, p. 39 (46).
Ogg, F. N., Governments of Europe, 137. For the custom in Canada, see Bourinot, J. G., How Canada is Governed, 115-6.
pointed by the Senate, which shall be a standing committee on special,
any special, private, or local bill . . . shall be referred to and con-
In a number of the states the burden of electing certain non- 130. legislative officers1 is placed upon the legislature. There are by the a few procedural regulations, for instance, that the vote must be entered upon the journal' and that voting shall be viva voce.3 Vermont is careful to declare that such elections shall be free and voluntary.*
During the making of law and the other functioning of the legislative assembly, most constitutions require that the houses and Record shall be open to the public. In Kentucky, Pennsylvania" and tive Sessions. Tennessee printing presses are declared to be free to every person who wishes to discuss the proceedings of the legislature. When "business" or "public welfare" or the opinion of the house or the opinion of two-thirds of the house so demand, exceptions may usually be made to this rule. A few constitutions specify that the senate, while in executive session, may close its doors.1 These rules usually apply to the houses when sitting as committees of the whole-but fewer constitutions especially provide therefor.
Alabama2 discreetly provides that no person may be admitted to the floor of either house while in session, except members of the legislature, officers and employees of houses, the governor and his secretaries, representatives of the press, and
1e. g., Supreme Court judges (R. I. and other states).
2e. g., Ala. IV, 83; S. C. III, 20 (1915).
se. g., N. C. II, 9; V, 6; Md. II, 4; Wis. IV, 30.
e. g., Ala. IV, 57; Ark. V, 13; Conn. III, 11; Id. III, 12; N. H. II, 8; O. II, 13; Vt. II, 8.
9e. g., Ark. V, 13; Cal. IV, 13; N. H. II, 8; Ala. IV, 57; 0. II, 13.
1e. g., Fla. III, 13; Colo. IV, 6.
other persons to whom either house by unanimous vote may extend the privileges of its floor. The constitutions almost invariably require each house to keep a journal of its proceedings, which usually must be published from time to time, except, in some states, such parts as require secrecy.3
One house may not adjourn without consent of the other for more than two days in some states, nor for more than three days in a number of others, to which prohibition is often added, "nor to any other place."
When the legislature has finally adjourned the people of most of the states breathe a sigh of relief. Newspaper paragraphers reflect the feeling by reprinting their stock remarks of congratulations not only to the citizens, but to the governor who, now that he "has gotten the legislature off his hands," may be free to work for the public welfare. The eighteenth century trust in the legislature has altogether disappeared; from the position of guardian of liberty it has degenerated into a thing of opprobrium and reproach. Justly or unjustly this has become the fact and thoughtful students of politics have given a great deal of attention to the problem presented by a state of affairs so obviously menacing to democratic government.
Reform suggestions usually seek greater simplicity of action and greater responsibility. Such proposals as a one-house asfor Reform. sembly composed of a few men representing large districts, who shall devote all or a large proportion of their time to the work of studying the needs of the state and drafting adequate laws, are becoming frequent. The fact that special commissions are often employed at high salaries to ascertain facts and write them into bills suitable for introduction into the legislature naturally raises the question why do not the people elect members of the legislature who can do more effective work themselves. Larger districts and the increased attractiveness of membership in a small, select body, are thought by many persons to furnish a way to a superior legislative personnel. By adopting genuine
se. g., Ala. IV, 55. In La. (165) promulgation must be in the English language.
4e. g., N. Y. III, 11; Kan. II, 10 (Sundays excepted).
5e. g., Ark. V, 28.
"See, e. g., N. D. II, 51, for exceptions. In some states the governor may adjourn the legislature (e. g., Fla. IV, 10) if the houses disagree as to the time. Sometimes the fact must be certified to him by the presiding officer of one or both houses (e. g., Ark. VI, 20; Colo. IV, 10).
home rule provisions for cities and counties and so leaving the legislature free to work for the state only, much improvement in the character and technique of its acts might be accomplished. A legislature composed of careful, conscientious men who really represent the people will doubtless furnish the only genuine guarantee of a reduction in the number of laws and their improvement on the one hand and the passage of needed -but now often neglected-laws on the other.
Naturally as the legislatures have declined in popular favor, 134. constitutional restrictions upon their action have grown apace. tional This is true in the first place of technical and procedural limi- Discussed. tations which, as has been indicated, have become various and complicated. In the second place, it has tempted-even forced -constitutional conventions into precarious paths away from strictly fundamental enactment—the statement of principles and construction of the framework of government-into the realms of legislation pure and simple. This tendency has resulted not only in the profuse and code-like instruments of new and radically inclined states like California and Oklahoma, but finds its most characteristic expression, perhaps, in the six thousand word article or statute on corporations in the Virginia constitutions and the twelve thousand words by means of which the constitution of Louisiana' endeavors to regulate to the smallest detail the state's judiciary establishment. The longer the constitution, of course, the more restrictions of this kind it is likely to contain.1 The constitutional restrictions as they have become numerous have created new problems.
Though this "constitutional supremacy," says Professor Ernst Freund,2
is meant to be the domination of the legislature by the people, in effect it must mean the domination of the legislature by the courts. While it is true that the court applies only the checks which it finds in the constitution, it is also true that it is the court that finds the checks. In making a constitution, the people, so far from speaking directly, interpose between themselves and their will two organs instead of one.
"See ch. 18 and ch. 21.
1Concerning the additional encroachment of the people themselves, through vesting in the electorate the powers of the initiative and referendum, see ch. 11. 2The Problem of Adequate Legislative Powers Under State Constitutions,Proceedings of Academy of Political Science, V, 1, pp. 98, seq. (99-100).
Nothing illustrates so strikingly the demoralization of American legislative bodies and the slight esteem in which they were held by the people,
Professor Freund continues, as the practice of transforming certain of the ordinary procedural rules "into constitutional restraints."
A rule may be salutary as such, and vicious as an absolute requirement. If a body cannot be relied upon to frame proper rules or to respect them when adopted, there is something fundamentally wrong. The presumption is against the wisdom of the unyielding restraint or requirement. Constitutional conventions should therefore carefully revise the procedural provisions, which are too often adopted simply because they are found in other constitutions.
Admitting that some of the procedural restraints are salutary -particularly those the enforcement of which may be easily verified, like requiring the final vote on a measure to be entered on the journal, he cites others that are "quite impracticable," for instance, "that a bill be read at large three times."
In the case of long bills this must be ignored, and the clerk will simply read the first and last few words; and the necessary fraud will be covered up by a false entry on the journal. Some can be reduced to unmeaning and perfunctory forms, so that really nothing is gained by the requirement; e. g., the Mississippi provisions above referred to, or the recitals indicating an emergency. Some give rise to difficult questions of construction; as, e. g., whether an amendment alters the subject matter of the bill, or still more, whether it alters it substantially.
The sound policy of constitution making is to impose procedural requirements only under the following conditions: (1) that they serve an object of vital importance; (2) that they can be complied with without unduly impeding business; (3) that they are not susceptible of evasion by purely formal compliance or by false journal entries; (4) that they do not raise difficult questions of construction; (5) that the fact of compliance or non-compliance can be readily ascertained by an inspection of the journal. The application of these tests would lead to the discarding of most of the existing provisions, without any detriment to legislation, as is proved by the experience of the states which never adopted them. As to those retained, the judicial power to enforce compliance should be limited in accordance with the recommendations
зib. 103. The older constitutions when they contained such regulations made them directory only and without effect upon the validity of legislation. *Requiring committee to report on sufficiency of title. See, also, supra, p. 178.