Government in the United States, National, State and Local

8. Name some powers that may be exercised by both Congress and the states; some that may be exercised by neither; some that may be exercised by the states only with the consent of Congress.

9. May the United States government coerce a state? Suppose a state should refuse or neglect to perform its constitutional duties as a member of the union, could it be punished or compelled to fulfill its obligations?

10. May a state be sued by a citizen of the state? by a citizen of another state? by another state itself?

11. Suppose a state should refuse to pay a debt which it has incurred, has the person to whom the debt is due any remedy?

12. Will a divorce granted in Nevada to a citizen of Massachusetts be recognized as valid in Massachusetts?

13. Suppose a man, standing on the New Jersey side of the Delaware River, should fire a shot across the river and kill a man in Pennsylvania, would the governor of New Jersey be bound to surrender the criminal upon demand of the governor of Pennsylvania, in order that he might be tried in Pennsylvania?

14. What is the difference between a constitution, a statute, and a charter? Between a written and an unwritten constitution?

15. When was the present constitution of your state adopted? Was it submitted to the voters before being put into effect? How many constitutions has your state had since its admission to the union? Were they all adopted by popular ratification? Who was the delegate from your county to the last constitutional convention?

16. How may the constitution of your state be amended? Is a majority of those voting at the election necessary to ratify, or only a majority of those voting on the proposed amendment? How many times has the present constitution of your state been amended? Do you think the method of amendment is too rigid?

17. What is the purpose of a preamble to a constitution? Does the preamble of your constitution contain a recognition of God?

18. What are the provisions in the bill of rights to your constitution in regard to the rights of an accused person? in regard to freedom of the press? freedom of assembly? freedom of worship? right of the people to change their government?

CHAPTER IV

THE STATE LEGISLATURE

Powers of the State Legislatures.– The powers of the state legislature, unlike those of the city council and those of the Congress of the United States, are not set forth in the constitution. In general, a state legislature may exercise any powers which are not denied to it by the Constitution of the United States or by the constitution of the state. Its powers, in other words, are residuary in character, rather than delegated or granted.

Limitations.– In recent years, however, mainly on account of the popular distrust in which our legislatures have come to be held, numerous limitations upon their powers have been imposed by the constitutions of many states. Thus they are frequently forbidden absolutely to pass local or special laws where a general law is applicable, or they are allowed to enact such laws only under certain restrictions. In most states, also, the legislature cannot run the state into debt beyond a certain amount, and its power to impose taxes and appropriate money is generally restricted. Finally, its power of legislation has been limited by the present practice of regulating many important matters in the constitution itself. In the newer constitutions especially we find a large number of provisions relating to schools, cities, towns, railroads, corporations, taxation, and other matters. To that extent, therefore, the legislature is deprived of its power of legislation on these subjects.

Extent of the Legislative Power.– In spite of the numerous restrictions, however, the power of the legislature is very large. It enacts the whole body of criminal law of the state; makes laws concerning the ownership, use, and disposition of property, laws concerning contracts, trade, business, industry, the exercise of such professions as law, medicine, pharmacy, and others; laws relating to the government of counties, towns, cities, and other localities; laws concerning the public health, education, charity, marriage and divorce, and the conduct of elections; laws concerning railroads, canals, ferries, drainage, manufacturing, eminent domain, and a great variety of other matters. The subjects concerning which the legislatures may enact laws are indeed so numerous and varied that it would be impossible to enumerate them all. For that reason the legislature is by far the most important branch of the state government, and it is highly important that it should be composed of honest, intelligent, and efficient members. Unfortunately, however, in many states the legislature has declined in public esteem. In the early days of our history the legislative branch of the government was all-powerful. It was not only practically unlimited as to its power of legislation, but it was intrusted with the choice of many important officers of the state. Now, however, there is a disposition to cut down its powers and place restrictions on the exercise of those that are left to it. In many states the people have secured the power to legislate for themselves by means of the initiative and referendum (pp. 85-89); and, to diminish the power of the legislature to enact useless laws, many constitutions limit the length of the sessions to forty or sixty days in the hope of compelling it to devote its time to the consideration of important measures of general interest.

Structure of the Legislature.– Every state legislature to-day consists of two houses. At first several states followed the example of the Congress of the Confederation and tried the single-chamber system, but they soon found its disadvantages serious, and substituted legislatures with two houses. The principal advantage of a bicameral legislature is that each house serves as a check upon the haste of the other and thus insures more careful consideration of bills. Nevertheless, proposals have recently been made in several states to establish a single-chambered legislature, and the question was voted on by the electors of Oregon in 1912 and in 1914, and by those of Arizona in 1916.

The lawmaking body popularly known as the legislature is officially so designated in some states, but in others the formal name is the general assembly or the legislative assembly, and in two, Massachusetts and New Hampshire, the colonial title, "general court," is still retained. In all the states the upper house is styled the senate. In most of them the lower chamber is known as the house of representatives, though in a few it is styled the assembly and in three the house of delegates.

Both houses of the state legislature are chosen by the people. The principal differences in their make-up are, that the senate is a smaller body and therefore each senator represents a larger constituency, the senators in many states are chosen for a longer term, and usually the senate is vested with special functions such as the approval of executive appointments to office, and the trial of impeachment cases.

The State Senate.– The size of the senate varies from seventeen members in Delaware to sixty-seven in Minnesota, the average number being about thirty-five. In about two thirds of the states the term of senators is four years; in New Jersey their term is three years; in Massachusetts it is one year; in the remaining states it is two years. In about one third of the states the terms of the senators and the representatives are the same. In some states the senators are divided into classes, and only half of them retire at the same time.

The House of Representatives.– The house of representatives everywhere is a more numerous body than the senate, and in a few states the disproportion is very great. Thus the New Hampshire legislature with a senate of 24 members has a house of representatives of more than 400 members, the largest in any state, a body about as large as the national house of representatives. The Connecticut legislature is composed of a senate of 35 members and a house of representatives of 258 members; Vermont has a senate of 30 members and a house of representatives of 246; Massachusetts has a senate of 40 members and a house of 240. The smallest houses of representatives are those of Delaware and Arizona, each consisting of 35 members.

Apportionment of Senators and Representatives.– Senators and representatives are apportioned among districts, usually on the basis of population. Political units, however, are often taken into consideration, and in some states such units rather than the number of inhabitants are the determining element. Thus it is frequently provided that each county shall be entitled to one senator, though the population of some counties may be many times as great as that of other counties. In some of the New England states the inequalities of representation are so glaring as to constitute a great injustice to the more populous towns. In Connecticut, for example, the members of the lower house are distributed among the towns of the state, without regard to their population. As a result each of the small towns of Union, Hartland, Killingworth, and Colebrook, with an average population of less than 1,000 persons, has two representatives, while New Haven, with 133,000 inhabitants, has only two. Hartford, with about 99,000, has only two, and so has Bridgeport with a population of 102,000, and Waterbury with 73,000. These four cities comprise about one third the population of the state, but they have only one thirty-second part of the membership of the house of representatives. A similar system of representation exists in Vermont and in the senate of Rhode Island.

Moreover, as a result of "gerrymandering" by the political party in control of the legislature the legislative districts are frequently so constructed as to give the majority party more than its fair share of representatives. As a result there are in some states great inequalities of representation among the different counties or legislative districts.

In order to prevent large cities from controlling the legislature and thereby dominating the state, a few constitutions limit their representation in the legislature. Thus in New York it is provided that no county, however populous, shall have more than one third of all the representatives, and a somewhat similar provision is contained in the constitutions of Rhode Island and Pennsylvania.

Minority Representation in the Legislature.– Where there are two political parties in the state, it is worth considering whether some provision should not be made for allowing each party to choose a number of representatives in proportion to its numerical strength, or at least for allowing the weaker party some representation in the legislature. It not infrequently happens under the present system that the majority party in the state succeeds in electing nearly all the representatives, leaving the other party practically without representation, although it may be strong enough to cast hundreds of thousands of votes in the state as a whole. In the Oregon state election of 1906, for example, the Republican party, with only 55 per cent of the voting strength, elected eighty-eight members of the legislature, while the Democratic party, though casting 34 per cent of the total vote, elected only seven representatives.

The present constitution of Illinois contains a clause which makes it possible for the minority party in each of the fifty-one legislative districts into which the state is divided to elect at least one of the three representatives to which the district is entitled. Each voter is allowed three votes, and he may give one vote to each of three candidates, or he may give all three to one candidate, or two to one candidate and one to another. Usually the party having the majority in the district elects two candidates and the minority party one, the voters of the latter party concentrating all their votes on the one candidate.

Legislative Sessions.– In the great majority of states the legislatures hold regular sessions every two years. In New York, New Jersey, Massachusetts, Rhode Island, Georgia, and South Carolina the legislature meets every year in regular session. Alabama is contented with a session once in every four years. In California the session is divided into two parts, the first being devoted exclusively to the introduction of bills. The legislature then takes a recess of a month to enable the members to consult their constituents in regard to the bills introduced, after which it reassembles for the enactment of such legislation as seems to be demanded. In all the states the governor is empowered to call extraordinary sessions for the consideration of special matters of an urgent character.

There is a popular belief that legislatures waste much of their time in the consideration of petty matters, and in many states the constitution either limits the length of the session, – sometimes to forty, fifty, or sixty days, – or provides that where the session is prolonged beyond a certain number of days, the pay of members shall cease. The wisdom of limiting the sessions to such brief periods, however, is doubtful, and several states that once imposed such restrictions have since removed them.

Legislative Compensation.– In all the states, members of the legislature receive pay for their services. This is either in the form of a definite amount per year, term, or session, or so much per day. The largest legislative salaries are those of Illinois ($3,500 per biennial session), New York ($1,500 per year), Massachusetts and Ohio ($1,000 per year), and Pennsylvania ($1,500 per biennial session). In New Hampshire, on the other hand, the salary is only $200 per biennial session, in Connecticut $300, and in South Carolina $200 for each annual session. In thirty states the per diem method of compensation prevails, the amount ranging from three dollars per day, which is the salary paid in Kansas and Oregon, to ten dollars per day, in Kentucky, Montana, and Nebraska, the most usual sum being four or five dollars per day. In several states, however, the per diem compensation ceases, or is reduced to a nominal amount, after the legislature has been in session 60 days or 90 days. Mileage ranging in amount from ten cents per mile to twenty-five cents is usually allowed, and in a number of states there is a small allowance for postage, stationery, and newspapers. In some states the pay of the legislators is fixed by the constitution, and hence the matter is beyond control of the legislature. Indeed, in only a few states is the matter of legislative pay left entirely to the discretion of the legislature without restriction.

In a number of them the constitution either forbids members to accept free passes on the railroads, or makes it the duty of the legislature to pass laws prohibiting the acceptance of such passes.

Organization of the Legislature.– Each house is usually free to organize itself as it may see fit, though where the office of lieutenant governor exists, the constitution designates that official as the presiding officer of the senate.

The Speaker.– The presiding officer of the lower house is styled the speaker, and in all the states he is chosen by the house from its own membership. He calls the house to order, presides over its deliberations, enforces the rules governing debate, puts motions and states questions, makes rulings on points of order, recognizes members who desire to address the house, appoints the committees, signs the acts and resolutions passed by the house, and maintains order and decorum. He usually belongs to the political party which is in the majority in the house, and in making up the committees and recognizing members for the purpose of debate he usually favors those of his own party.

The Clerk.– Each house has a clerk or secretary who keeps the journal of the proceedings, has custody of all bills and resolutions before the house, keeps the calendar of bills, calls the roll, reads bills, and performs other duties of a like character. He is often assisted by other clerks such as a reading clerk, an engrossing clerk, sometimes an enrolling clerk, etc.

Sergeant-at-arms.– To execute the orders of the house in preserving good order and enforcing the rules, there is an officer called a sergeant-at-arms. He usually has custody of the hall in which the meetings are held, makes arrests when the house orders an outsider to be taken into custody for contempt, compels absent members to attend when ordered by the house to do so, and sometimes keeps the accounts of the pay and mileage of members.

Other Officers and Employees.– Usually, also, there is a chaplain who opens the session with prayer, though he is not always a paid employee; a postmaster; and a number of miscellaneous employees such as doorkeepers, janitors, copying clerks, stenographers, pages, etc.11

Committees.– For convenience in legislation the members of each house are grouped into committees, the more important of which are those on agriculture, corporations, finance or appropriations, ways and means, judiciary, railroads, labor, education, manufactures, engrossment and enrollment, and insurance. In the Western states there are usually committees on immigration, mining, dairies, forestry, fish and game, drainage, swamp lands, irrigation, levees and river improvements, etc. The number and size of the committees vary in different states. In some of the states there are as many as fifty or sixty committees, and occasionally as many as forty members are placed on a single committee. In addition to the standing committees of each house there are frequently select committees appointed for special purposes, and there are usually a number of joint committees made up of members of both houses. In the New England states most of the committee work is done by joint committees, there being usually only four or five standing committees in each house.

How Bills are Passed.– Each house is empowered to frame its own rules of procedure, but in order to insure publicity and careful consideration of bills the state constitutions have placed restrictions upon the legislature in the consideration and passage of bills. Thus in all the states each house is required to keep a journal of its daily proceedings; in most states it is provided that no law shall be passed except by bill, that no bill shall embrace more than one subject, which shall be clearly expressed in the title of the bill, that no money shall be appropriated except by law, that every bill shall be read at least three times before being passed, that no existing law shall be amended by mere reference to its title but the amended portion must be set out in full, and that the yeas and nays shall be recorded upon demand of a certain number of members. Some states require that every bill shall be referred to a committee, that every bill shall be printed and placed on the desk of each member, that no bill shall be introduced after the legislature has been in session a certain number of days, and that bills of a local or private character shall be introduced only after public notice has been given in the locality affected and to be valid must be passed by a two-thirds majority of each house; and so on.

In general these constitutional restrictions represent an attempt to eliminate the evils of undue haste, lack of consideration, extravagance, and objectionable local and private bills, and to compel the legislature to do its work openly, carefully, and in the interest of the public good.

Order of Procedure.– A common order of the procedure in passing bills is the following: 1. Introduction and first reading. 2. Reference to a committee. 3. Report of the committee. 4. Second reading. 5. Third reading. 6. Vote on passage. 7. Enrollment. 8. Approval by the Governor. This order of procedure, however, is often departed from under a suspension of the rules or by unanimous consent.

Usually any member can introduce a bill on any subject and at any time12 except where the constitution forbids the introduction of bills after a certain date, and some legislatures have even found a means of evading this restriction. In most states a bill can be introduced by filing it with the clerk. It is then usually read the first time, though only by title, and referred to the appropriate committee for consideration and report. The committee may "pigeonhole" it and never report, or it may make a report so late in the session that consideration of the bill is impossible. If the bill seems worthy of being reported, the committee reports it to the house with a recommendation that it be passed either with or without amendments, or that it be rejected. If reported favorably it is placed on the calendar for consideration in its turn. At this stage it is open for general discussion and for amendment by the house. If the bill meets the approval of the house, it is finally ordered to be engrossed and read a third time. It is then put in shape by the committee on engrossment, after which it is read a third time and finally passed. It then goes to the other house, where the procedure is substantially the same. If passed by the second house, it is ready for the signature of the governor. If amended by the second house, it comes back to the first house for concurrence in the amendments. If the first house refuses its concurrence, a conference committee is usually appointed by the two houses to consider and recommend a compromise. The bill is not ready to send to the governor until it has been passed by both houses in exactly the same form.

Lobbying and Bribery.– In all our states a large proportion of the legislation enacted affects directly or indirectly the interests of particular persons, classes, or localities. As a result, interested parties bring great pressure to bear upon the members to pass certain bills or to reject certain others.

Methods of the Lobbyist.– Usually when the legislature meets, the paid representatives of interested individuals, corporations, or local governments appear on the scene to urge legislation in their interests or to defeat bills introduced that are unfavorable to them. These persons are known as "lobbyists," and the means they employ to secure or prevent legislation are often improper and sometimes venal. Sometimes money is used to bribe members to vote for or against pending measures, and there are few states indeed where charges of this kind have not been made. In one state recently, money was contributed in large quantities by persons interested in preventing certain legislation, and the sum thus contributed was known as the "jack pot" fund, out of which members were handsomely paid for their votes. In a special message to the legislature of New York state, Governor Hughes declared that certain disclosures had "caused honest citizens to tingle with shame and indignation and made irresistible the demand that every proper means should be employed to purge and purify the legislature." The situation described by the governor as existing in New York, unfortunately exists in other states as well.

"Strike" Bills.– Some of the great corporations maintain regularly paid lobbyists at the state capitals when the legislature is in session, not so much for the purpose of securing legislation in their interests as to prevent the enactment of laws to which they are opposed. Sometimes they are practically forced to have lobbyists on the ground to prevent the enactment of what are called "strike" bills, that is, bills introduced by unscrupulous members for the purpose of extorting money from the corporations to pay for defeating them.

Anti-lobbying Legislation.– The evils growing out of the practice of the special interests in maintaining paid lobbyists near the legislature have led to attempts in a number of states to restrict such abuses by legislation. This legislation, in general, makes it unlawful to attempt to influence improperly any legislator. In several states lobbyists are required to make known the purpose of their business and to register their names with the secretary of state, and after the adjournment of the legislature to file a sworn statement of their expenses.

Direct Legislation: the Initiative and the Referendum.– The legislature is not the only agency for enacting law and determining the public policies of the state. Laws on certain subjects may be made by the people themselves acting directly in their primary capacity as well as through the agency of representatives. This is done through what are called the initiative and the referendum. The initiative is a device by which the people themselves may propose laws and have them submitted to the voters for their approval or rejection. Through the referendum the people reserve the power to approve or reject by popular vote certain laws enacted by the legislature.