CHAPTER XIII.

MODIFICATIONS OF LAW AS A RESULT OF POPULAR CO-OPERATION (2) RELATIVE TO THE EXERCISE OF THE OTHER FUNC

TIONS OF GOVERNMENT.

As to the exercise of the other functions of government, the adaptations of our law for the protection of the people from spoliation have been many. In the first place the form of government adopted by the people of the United States, in so far as the exercise of executive and judicial functions are concerned, in a large measure, accomplished this. The contest had already been waged for centuries along this line; the independence of the colonies marked the successful issue of the conflict in the interest of the people. By the frame of government established here every precaution was taken, every provision made against arbitrary action on the part of these officials, that the experience of the past had dictated.

A legal fiction was employed which assigned to executive and judiciary delegated powers only,1 while the legislature, composed of chosen representatives of the people, was deemed to have the residuary powers, i. e., those powers not expressly or impliedly given to the executive and judiciary, or by express limitation reserved to the people themselves. In the subsequent exercise of sovereign powers, therefore, we find that those functions which the predatory group have been able to control in their own behalf have been largely legislative. The

1 The constitutional provisions for elections were limitations on the appointing power.

institutional adaptations of the century have been chiefly along this line.

The legislature is essentially a law-making body. It is designed to meet from time to time to revise and modify the established order in such a manner as to adapt this order to the changing conditions of the people. Its functions do not require constant attendance and continuous activity as do the functions of adjudication and administration. They are essentially deliberative. Deliberation demands that they hold in mind the social, economic and political conditions; that they act in the interest of the whole body politic. In order to secure these ends it is necessary that each member have full knowledge of all legislative acts as well as of the interests to be affected thereby. That deliberation may be secured, the people in framing their constitutions have. required:

3

1. That no law shall be passed except by bill,2 thereby making it necessary to present all matters for consideration in open and formal manner. The bill, however, may be introduced in either house, but must, thereafter, be introduced into the other, where it may be amended, altered or rejected, and in case it is altered or amended, must again return to the first house for con

currence.

2 See Ala., Const. 1875, IV, 19; Ark., 1874, V, 21; Cal., 1880, IV, 15; Colo., 1876, V, 17; Ind., 1851, IV, 1; Ia., 1857. III, 15; Kans., 1859, II, 20; Md., 1867, II, 29; Mo., 1875. IV, 25; Neb., 1875, III, 10; Nev., 1864, IV, 23; N. Y., 1846, III, 14; Penn., 1874, III, 1; Tex., 1876, III, 30; Wis., 1848, IV, 17.

3 See Cal., 1880, IV, 15; Fla., 1868, IV, 12: Ill., 1870, IV, 12; Ind., 1851, IV, 17; Me., 1820, IV, 3; Md., 1867, III, 27; Miss., 1869, IV, 23; Mo., 1875, IV, 26; Neb., 1875, III, 9; Nev., 1864, IV, 16; N. Y., 1846, III, 13; Ore., 1851, IV, 19; Ohio, 1851. II, 15; S. C., 1868, II, 18; Tenn., 1870. II, 17; Tex., 1876, III, 31; Vt., 1793, Am. 3; Va., 1870, V, 9; W. Va., 1872, VI, 28.

4 See Id., Ala., Ark., Cal., Col., Fla., Ill., Ind., Ia., Kans., Me., Md., Mo., Neb., Nev., N. Y., Ohio, Ore., Penn., S. C., Tenn., Tex., Va., W. Va., Wis.

2.

That every bill must be read three different times on three different days in each house."

3. Some of the State constitutions also require that no bill shall be passed till it shall have been referred to a committee and reported therefrom, and all of them have made provision by rules for the careful consideration of bills in committees.

In order to secure knowledge of the condition of the State as a basis for deliberation provisions are made:

I. Requiring the executive at the commencement of each session of the legislature or from time to time to give information by message of the condition of the State and to recommend such measures as he may deem expedient.7

2. Providing means whereby the governor may be informed as to the state of affairs. To the end that he may have the necessary information the constitutions have given the governor power to require information in writing from the officers of the executive and adminis

5 Ala., 1875. IV, 21; Ark., 1874. V, 22; Cal., 1880, IV, 15; Colo., 1876, IV, 22; Fla., 1868, IV, 15; Ga., 1877, III, 7; III., 1870, IV, 13; Ind., 1851, IV, 18; Ky.. 1850, IV, 29; La., 1879, 37; Mich., 1850, IV, 19; Minn., 1857, IV, 20; Miss., 1869, IV, 23: Mo., 1875, IV, 26; Nev., 1864, IV, 18; N. J., 1844, IV, 4; Ohio, 1851, III, 16; Ore., 1857, IV, 19: Penn., 1873, ПI, 4; S. C., 1868, II, 21; Tenn., 1870, II, 18; Tex., 1876, ÏÏÏ, 32.

6 See Ala., 1875, IV, 20; Colo., 1876, V, 20; La., 1879, 37; Mo., 1875, IV, 27; Penn., 1873, III, 2; Tex., 1870, III, 37.

7 See Ala., 1875, V, 11; Ark., 1874, VI, 8; Cal., 1886, V, 10; Colo., 1876, IV, 8; Conn., 1818, IV, 8; Del., 1831, III, 11; Fla., 1868, V, 9; Ga., 1877, V, 1; Ill., 1870, V, 7; Ind., 1851, V, 13; Ia., 1857, IV, 9; Kans., 1859, I, 5: Ky., 1850, III, 12; La., 1879, VII. 1; Me., 1820, V, 1; Md., 1867, II, 19; Mich., 1850, V, 8; Minn., 1857, V, 4; Miss., 1869, V, 8; Mo., 1875, V, 9: Neb., 1875, V. 7: Nev., 1864, V, 10; N. J., 1844, V, 6; N. Y., 1846, IV, 4: N. C., 1868, III, 5: Ohio, 1851, III, 7: Ore., 1857. V, 11; Penn., 1874, IV, 11: S. C.. 1868, III, 15; Tenn., 1870, III, 18; Tex., 1876, IV, 9; Va., 1870, IV, 5; W. Va., 1872, IV, 5; Wis., 1848, V, 4.

trative departments upon any subject relating to the duties of their respective offices.8

3. The provision, under our system, whereby the legislature has full power to appoint committees and provide other means of making inquiry into all subjects, these committees having, under statute, the same power as a court or a grand jury, to subpoena witnesses, to compel attendance, to adduce evidence under oath, etc. This is one of the most valuable means of gaining information, and one which will be constantly more employed as our system becomes more special and complex.

The whole legislative procedure framed under these constitutional requirements conserves the same end. It is customary when a bill is introduced to read it first by title, in order that notice may be given of its introduction and subject matter. The second reading is in full, and is regularly had on another day. After the second reading it is commonly referred to a committee, where it may receive the fullest and most informal consideration and discussion. This committee may be a regular standing committee, or a special committee, and its meeting either public or secret. Very commonly arguments from those whose interests might be affected are heard pro and con. The committee may report favorably or unfavorably, or not reporting, may be compelled so to do by order of the house. Upon motion, the report coming up for consideration, it is read, and any amendments proposed." Upon the closing of the debate the third read

See Ala., 1875, V, 9; Ark., 1874, VI, 7; Cal., 1880, V, 6; Colo., 1876, IV, 8; Conn., 1818, IV, 6; Del., 1831, III, 10; Fla., 1860, V, 5; Ga., 1877, V, 1; Ill., 1870, V, 21; Ind., 1851, V, 15; Ia., 1857, IV, 8; Kans., 1859, I, 4; Ky., 1850, III, II; La., 1879, 70; Me., 1820, V, 1; Mich., 1850, V, 5; Minn., 1857, V, 4; Miss., 1869, V, 6; Mo., 1875, V, 22; Neb., 1875, V, 22; Nev., 1864, V, 6; N. C., 1868; Ohio, 1851, III, 6; Ore., 1857. V, 13; Penn., 1874, IV, 10: S. C., 1868, III, 14; Tenn., 1870, III, 8; Tex., 1876, IV, 24: Va., 1870, IV, 6; W. Va., 1872, VI, 8. 9 See Ala., 1875, IV, 19; Ark., 1874, V, 21; Colo., 1876, V, 17; Mo., 1875, IV, 26; Penn., 1873, III, 1; Tex., 1876, III, 31.

ing of the bill is had in full.10 After passing one house in this manner it is then sent to the other, where the same proceedings are had before passage there. If amendments are made, then it must be returned to the first chamber and the process continued till, in the regular form, there has been a concurrence of both houses on the measure. It is then sent to the executive, who must also pass on the bill, or, failing to approve, return it with his objections to the house in which it originated. This again requires reconsideration and amendment, or in case the legislature wishes to pass the measure over the veto of the executive, two-thirds vote of all the members of each house in the affirmative is usually required.

Various constitutional prescriptions are also made to prevent surprise, deception and fraud, such as:

I. That no bill shall relate to more than one subject and that this shall be expressed in the title.11

2. That no bill can become a law unless on its final passage a majority in each house shall vote in the af

10 In N. Y. (Const. 1894, VI, 15) the rule is that the bill as a whole must be read the next day after consideration in the committee of the whole. For reason ascribed in the constitutional convention for adopting this rule see Vol. I, Debates of Convention, 1894, p. 246.

11 See Ala., 1875, IV, 2; Cal., 1880, IV, 24; Colo., 1876, V, 21; Fla., 1868, IV, 14; Ga., 1877, III, 7; Ill., 1870, IV, 13; Ind., 1851, IV, 19; Ia., 1857, III, 29; Kans., 1859, II, 16; Ky., 1850, II, 37; La., 1879, 29; Md., 1867, III, 29; Mich., 1850, IV, 20; Minn., 1857, IV, 27; Mo., 1875, IV, 28; Neb., 1875, III, 11; Nev., 1864, IV, 17; N. J., 1844, IV, 7; Ohio, 1851, III, 16; Ore., 1857, IV, 20; Penn., 1873, III, 3; S. C., 1868, II, 20; Tenn., 1870, II, 17; Tex., 1876, III, 35; Va., 1870, V, 15; W. Va., 1872, VI, 30. The reason for such provisions is found in the experience of the people. Some of the most high-handed measures had, prior to the incorporation of such provision, been saddled upon the public by designing individuals, who secured their passage by misrepresentation in the titles of the acts. The titles and all exterior evidences of content would indicate one subject, perhaps quite laudable in itself, while in some of the sections of the bili a wholly different subject of legislation would appear.