IC-NRLF SB EE Ib3 CO UNIVERSITY OF PENNSYLVANIA PROCEDURE IN STATE LEGISLATURES BY H. W. DODDS A THESIS PRESENTED TO THE FACULTY OF THE GRADUATE SCHOOL IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY PHILADELPHIA THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE I9l8 Copyright, 1918, by THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE All rights reserved CONTENTS Page FOREWORD v Hon. John A. Lapp CHAPTER I THE LEGISLATURE'S INHERENT POWERS IN MATTERS OF PROCEDURE 1 Inherent Powers Defined 2 The Power to Determine the Qualifications of Members is Exclusive 3 The Power to Punish for Contempt is a Prerogative 4 The Attitude of the New York Courts 5 Parliamentary Procedure not Subject to Judicial Review 6 Journals Presumed Favorable to the Act 7 Constitutional Provisions Sometimes Directory 9 Parol Evidence Inadmissible to Overthrow Journals 11 The Validity of Parliamentary Rules 12 The Authority of Statutes Regulating Procedure 13 Legislative Employes 15 CHAPTER II THE ORGANIZATION OF THE HOUSES 20 The Make-up of the Roll 20 Contested Elections 21 Selection of Employes 23 CHAPTER III INTRODUCTION OF BILLS '. . 26 Early Methods of Introduction 26 Personal Responsibility of Members for Introducing Measures 29 Restrictions upon the Free Introduction of Measures ,31 Present-Day Methods of Introduction 32 CHAPTER IV COMMITTEES 36 Early Function of Standing Committees 36 Selection of Committees 37 Number and Size of Committees 39 Reference of Bills 42 Committee Meetings 44 Committee Schedules '. 44 Committee Records 47 Joint Committees 49 Conference Committees 51 Discharge of Committees 52 Steering Committees 56 [in] 38X535 iv Contents CHAPTER V PASSAGE OF BILLS 63 Quorum 63 Printing of Bills 64 Readings 65 Debate 69 The Committee of the Whole 70 Control over Debate Obstruction 72 Suspension of the Rules 75 Amendments 79 Roll Calls on Final Passage 84 Counting a Quorum 86 Engrossment and Enrollment 87 CHAPTER VI LEGISLATIVE LEADERSHIP 91 The Calendar 91 Closing Days of the Session 97 Legislative Leadership 100 The Speaker 100 The Floor Leader 102 Executive Leadership 104 Legislative Records 107 Index.. .... . 110 FOREWORD This study is a hopeful beginning of researches which will help greatly to solve some of the problems of legislative procedure. Such studies are necessary preliminaries to the popularization of the problems as well as the solution and nothing is more needed in governmental research than the basic facts underlying the legisla- tive process, for it is undeniable that the legislative machinery does not function properly in the states or in the Congress of the United States. Mr. Dodds has done well to go below the surface of things and tell how the legisUtures actually do some of their important work. In doing so he has been plowing virgin soil a good deal of the time and the way has not been smooth. He has had to find his facts in obscure sources and to weigh and sift a vast amount of scattered material. There are plenty of articles and books descriptive of legislative bodies but there is a dearth of descriptions of the way legislatures are organized and how they work. Everyone intimately in touch with a legislative body knows that there is a vast difference between theory and practice. Mere analyses of constitutional forms and limitations tell very little; in fact they mislead grossly. Take, for example, the provision that every bill shall be read in full on three separate days. If that were followed literally, the legislature would spend its entire time listening to the reading of bills. The actual practice is not followed anywhere and, of course, could not be, yet every general treatise on legislatures treats it as a part of the actual practice of legislatures. Many constitutional forms are merely paper provisions and that fact lends importance to Mr. Dodds' study. New light is thrown on many subjects which writers have heretofore been content to pass over in general terms because of the difficulties of detailed research. One of the most interesting phases of Mr. Dodds' work is his discussion of the powers of a legislative body and of the separate houses. Strangely enough, no one has considered this subject sufficiently important for careful study and yet in 1913 in one of [v] vi Foreword our leading states all of the principal officers and some members of the legislature were indicted for violating a law which attempted to fix the number of employes. The court rightly held that the houses of a legislature could not be bound by such a law because it inter- fered with their inalienable powers. Laws in violation of this prin- ciple are on the statute books of several states. Another subject which has not had the attention which it deserves is treated in this study, namely, the validity of the enrolled bill. There is some confusion of legal authority on this point, a majority holding, that the enrolled bill cannot be impeached, while a few would allow the journals as evidence. Either conclusion leads to absurdities. If the journals or parol evidence cannot be used to impeach an act, then acts which never passed either house may become laws by the signature of the presiding officers and the governor, as actually happened in Indiana in 1913, through the trickery of some unknown person. The doctrine of the validity of the enrolled bill would make such an act valid in spite of the plain evidence that it never passed. On the other hand, if the journals are to be used as evidence, the law may be made to depend upon the accuracy of the work of legislative clerks, who are seldom known for their efficiency. Instead of taking the act from the statute books as it stands each act would have to be traced back through the journals. The doctrine that " ignorance of the law excuses no one" would truly become a joke under such circum- stances. It is just such questions as these that most need analysis and careful treatment. The physiology of legislatures should be studied rather than their anatomy. The following study tells more about how the houses are organized, how- the committees work and how a bill travels through the process than has heretofore been brought together, which material is compacted into a few pages. Scarcely a superfluous word is used to describe important processes. The study will be of great basic value in the inevitable reform of legis- lative processes. JOHN A. LAPP. CHAPTER I THE LEGISLATURE'S INHERENT POWERS IN MATTERS OF PROCEDURE The methods and forms by which legislative business is carried on are notoriously lax. Rules designed to protect the rights of the minority, to secure due deliberation and publicity for all legislative acts, and to introduce order into the performance of legislative duties are known to be frequently disregarded. Judgments of presiding officers in direct contravention of the rules have been sustained by majority vote, and legislative houses, in flagrant violation of their own law, have overruled correct decisions. To such loose and chaotic practice was due, in no small degree, the growing popular distrust which so boldly marked the nineteenth century attitude towards our state legislatures. Successive constitutions reflect the decline of confidence in representative assemblies by defining and restricting in great detail the powers which the legislature may exer- cise. Relief from the prevailing extravagance and recklessness was sought by designating the forms and procedure by which the legis- lature must act. Thus the newer constitutions, in an effort to in- sure order and deliberation in the work of the legislatures, or at least to prevent repetitions of certain gross frauds, came to include specific provisions governing parliamentary practice. Today pro- visions that a bill must be read three times on separate days are common, and numerous regulations concerning introduction of bills, signing by presiding officers, functions of committees, et cetera, occur in many organic laws. Occasionally the legislature itself, in the spirit of repentance, elevated a rule of procedure to the plane of statute law. Thus the requirement that local or private bills must be published in the. dis- trict which they affect found a place on the statute books. In like manner, improved methods of handling contested election cases were attempted by acts delegating disposition of them to the courts. The purpose of course was to establish by legislative action a few fundamental parliamentary rules to control the whims of the legis- lature without the observance of which no action could be deemed legal. 2 [1] 2 Procedure in State Legislatures INHERENT POWERS DEFINED But when the aid of the courts was summoned to apply these provisions, whether embodied in the constitution or occurring merely in the statute law, the doctrine of inherent powers and priv- ileges of legislative bodies was seen to be involved. Historically this is a very ancient doctrine. It takes its source in the long strug- gle in England between King and Parliament, when the matter of gaining and securing recognition of a privilege was a tremendously important thing. A privilege once established, the Commons were at that point secure from royal interference; either directly by agents of the king or through the processes of the courts. But it is one of the curious developments of history that a principle, em- ployed to protect the representatives of the people against coercion and intimidation by an autocratic power, should today remove them from all legal liability so far as the forms by which they conduct themselves are concerned. Legal theory recognizes that each department of government possesses certain inherent powers of which it cannot be deprived by a coordinate branch. This is the doctrine of inherent powers. Speaking generally, these powers are such that if the free exercise of them were obstructed the effective discharge of the duties of the constituent branch would be seriously impaired. It is generally accepted that no explicit constitutional provision is necessary to the exercise of these powers and privileges upon the part of the legisla- ture, but that they are implied in the general grant of legislative power and are necessary if that body is to fulfill its function. The broadest expression given to such rights describes them as inherent in the law-making branch and capable of being ascertained primarily by an examination of common parliamentary law. They are not de- rived from express provisions in the constitutions. On the contrary, they arise from the very nature of a legislative body. Indeed the constitution is not a grant but a restriction upon this power. 1 In 1 Ex parte McCarthy, 29 Cal. 395. This follows closely the English theory of lex et consuetude Parliamenti as outside the common law. See Blackstone's "Commentaries," Bk. I, c. 2; "But the maxims on which they (the two houses of Parliament) proceed, together with the method of proceeding, rest entirely in the breast of parliament itself and are not defined or stated by any particular stated law." Coke also, 4 Inst. 15, "Judges ought not to give any opinion of a matter of privilege, because it is not to be decided by the common laws but secun- Inherent Powers in Matters of Procedure 3 the light of this principle, provisions which read, "Each house shall have all other powers necessary for a branch of a legislature of a free state," can add nothing to prerogatives already enjoyed. 2 It is worth while to examine the nature of these inherent rights, which can be restricted only by the constitution itself and in the exercise of which a legislature cannot bind itself any more than an individual can bargain away his freedom. THE POWER TO DETERMINE THE QUALIFICATIONS OF MEMBERS is EXCLUSIVE The right to judge of the elections and qualifications of its own members is expressly conferred upon each house by the constitutions of forty-six states. 3 Originally developed by the House of Commons as a protection against encroachment by the king, it would exist today, in the absence of any constitutional grant, as an inherent power " necessary to the legislature to enable it to perform its high function." "It is the power of self-protection." 4 The right being exclusive, the legislature cannot refer ultimate decision to any other tribunal. The courts can enter no judgment. Their decision is merely advisory, if indeed they can act in the matter at all. 5 Neither will the courts inquire the reason for the expulsion of a mem- ber, no matter how arbitrary and unfair the action of the legisla- ture. 6 In no case will the courts examine the returns to see who was dum leges et consuetudinem Parliamenti. " American courts have declared that in general the two houses are organized and governed in accordance with the rec- ognized principles of parliamentary law. Ex parte Screws, 49 Ala. 57; State v. Rogers, 56 N. J. L. 480. The accepted opinion in Congress is that until rules have been adopted each Congress operates under what Speaker Reed termed common parliamentary law, in which the practice of the House constitutes a principal part. 5 Hinds 6759-6763. 2 Such provisions occur in thirteen state constitutions. 8 See Index-Digest of State Constitutions, prepared for New York Constitu- tutional Convention, 1915, pp. 885-6 and 925-6. 4 Hiss v. Bartlett, 69 Mass. 473; French v. State, 146 Cal. 604. 6 In re Contested Election of Senator, 111 Pa. St. 235. In State v. Gilmorc, 20 Kan. 551, an act empowering a court to vacate a seat of a member who upon trial was found to have been intoxicated in a public place was declared void. The legislature's exclusive power to judge of the qualifications of its members is not exhausted by admission to a seat. In Dinan v. Swig, 112 N. E. 91 (Mass. 1916) the power of a court to render even an advisory opinion is denied. Also in State v. District Court, 50 Mont. 134 (1914). 8 Hiss v. Bartlett, supra; French v. State, supra; Auditor-General v. Board, 51 N. W. 483 (Mich.). 4 Procedure in State Legislatures legally elected, the legislature being the sole judge of all questions of law or fact involved. 7 The courts will exercise no supervision over justices of the peace authorized by statute to take testimony in con- tested elections of members of the legislature. The powers of these officials when so acting are not judiciary, but rather in the nature of the work of a committee of the house. 8 Since the courts refuse to review in any manner the action of the legislature in admitting or expelling members, the binding force of statutes defining the methods of contesting elections rests solely in the will of the house. This is in harmony with the view adopted by Congress that such an act is only a wholesome rule not to be de- parted from without cause, and that a petition failing to proceed according to law is not without remedy. 9 Such laws must be viewed as convenient aids to the legislative house and cannot exist as a check upon the legislature's power to adopt any other procedure at will. In fact it has been recently declared that a statute at- tempting to define the procedure to be followed would be void. 10 THE POWER TO PUNISH FOR CONTEMPT is A PREROGATIVE A second inherent right is the power of a house to punish con- tempts of its authority. Following English precedents 11 our courts at first held that this was a general power necessary to the exercise of legislative functions and the adjudication of the house was suffi- cient to establish the fact of contempt. 12 This exclusive j urisdiction, however, was restricted in the opinion, rendered in the famous Eng- lish case of Stockdale v. Hansard, which declared that, although no court could relieve a person committed for contempt from punish- ment lawfully inflicted, the question of the jurisdiction of the house is always open to inquiry. 13 The United States Supreme Court finally accepted this view and in the case of Kilburn v. Thompson 7 0'Donnel v. Judges, 40 La. Ann. 598; People v. Mahaney, 13 Mich. 481; Bingam v. Jewett, 66 N. H. 382; Dalto v. State, 43 Ohio St. 652; Corhett v. Naylor, 25 R. I. 520. State v. Peers, 33 Minn. 81. 9 Case of Williamson v. Sickles, 1 Hinds 776. 10 Dinan v. Swig, supra. 11 See May, "Practice and Usages of Parliament," 10 ed. p. 131 et seq. 12 Anderson v. Dunn, 6 Wheat. 204, followed in a series of cases until Kilburn v. Thompson, 103 U. S. 168. See also Coffin v. Coffin, 4 Mass. 35. 13 9 Ad. & E. 1, and 11 Ad. & E. 253. Inherent Powers in Matters of Procedure 5 inquired into the jurisdiction of the House of Representatives, deny- ing at the same time that the right to punish for contempt could derive any authority from English precedents, since from time im- memorial Parliament has been a High Court of Judicature. The Court asserted that, if the House of Representatives is to punish for contumacy as a witness, the testimony must be required in a matter in which the House can properly proceed. In the case in question the investigation was found to be of a judicial nature and in excess of the power of the House. The warrant for the prisoner's arrest was therefore void. The state courts were quick to adopt the reasoning in Kilburn v. Thompson and to inquire into the lawfulness of legislative con- tempt. The principle followed was that the houses of the legisla- ture are free to punish recusant witnesses only if the information sought is in the aid of legislation, otherwise such punishment is an invasion of the judicial department. 14 But the doctrine that the power to command respect is obviously so essential to the enlighten- ment and guidance of the legislature that it has always been exer- cised without question remained unshaken. The constitution does not create the power, but fixes and limits the mode and duration of punishment for disobedience. 15 THE ATTITUDE OF THE NEW YORK COURTS The New York courts of late years have seemed unwilling to concede to the legislature an inherent or even a common law right to punish for contempt. The constitution of this state, contrary to prevailing form, does not authorize in specific terms a single house of the legislature to punish for contempt or to expel members, and is likewise silent as to a member's privilege from arrest, although elsewhere these prerogatives are generally held to inhere without express constitutional grant. Since 1830 these powers have been 14 In re Chapman, 166 U. S. 661; In re Gunn, 50 Kan. 155; Burnham v. Morissey, 80 Mass. 226; People v. Keeler, 99 N. Y. 463; Matter of Barnes, 204 N. Y. 108; People v. Webb, 5 N. Y. Supp. 855; Ex parte Parker, 74 S. C. 466; Sullivan v. Hill, 79 S. E. 670 (W. Va.); Ex parte Watters, 144 S. W. 531 (Tex.). " Ex parte McCarthy, 29 Cal. 395; Lowe v. Summers, 69 Mo. App. 637; State v. Matthews, 37 N. H. 450; Ex parte Dalton, 44 Ohio St. 142; Ex parte Parker, supra; Sullivan v. Hitt, supra; The power to punish may be delegated to com- mittees by statute. Ex parte Parker, and Sullivan v. Hill; also strong dissenting opinion, In re Davis, 58 Kan. 368. 6 Procedure in State Legislatures provided for by general statute, and the offenses enumerated in the acts have been declared to be the only ones which either house is authorized to punish as contempts and to take the place of the numerous offenses treated by Parliament as such. The statute conferring the power, judicial in nature, is not void, however, as invading the judiciary department since it is necessary and appro- priate to legislative action. 16 More recently the Code of Civil Procedure 17 has given over the duty of punishing recusant witnesses to the courts, and the Court of Appeals holds that in so doing the legislature demonstrated its lack of an inherent power to punish for contempt in disobedience to its process. 18 This is a serious inroad upon the prevailing theory of prerogative, if indeed the concept is not completely shattered. The legislature is considered to have aco A uired through its general legislative power the privileges not specifically conferred by the constitution. They are not exclusive or inalienable and are defined by statute law. 19 PARLIAMENTARY PROCEDURE NOT SUBJECT TO JUDICIAL REVIEW With a view towards maintaining the effective independence of the coordinate departments of government in the discharge of their appropriate duties, the courts have generally permitted the legisla- tures themselves to interpret constitutional provisions concerning methods of procedure. For example, the courts of several states will not admit evidence to impeach the validity of *an act on the ground that some constitutional requirement as to the manner of passage has not been observed. If the act is regularly enrolled, authenticated by the presiding officers of both houses, and signed by the governor, the evidence is conclusive that all constitutional 16 People v. Keekr, supra; See also People v. Webb, supra. The legislature has only such powers to punish as have been conferred upon it by statute. 17 H 854 to U 856. 18 Matter of Barnes, 204 N. Y. 108. 19 In a recent Texas case the court held that in accordance with the doctrine of the separation of powers the legislature's right to punish for contempt was de- rived solely from the constitutional grant, Art. Ill, sec. 15, which authorizes each house to punish persons not members for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings. Failure to answer the ques- tions of a committee does not constitute obstruction of legislative proceeding and the legislature was not competent to adjudge for contempt for so doing. Ex parte Walters, 144 S. W. 531. This denies to the legislature the right to punish indirect contempts. Inherent Powers in Matters of Procedure 7 provisions governing procedure have been fulfilled, and it cannot be impeached by the journals. The theory adopted is that the legis- lators are bound by their oaths to support the constitutional mode of procedure and, although disregard constitutes breach of duty, the presumption must always be that the coordinate branch has fulfilled its duty. 20 Any other interpretation leads to uncertainty as to what is law and ends logically in the power to impugn the journals. 21 This follows the English precedent, established in 1617, that the Journals of Parliament are not records 'but " remembrances for the form of proceeding to the record," and cannot weaken or con- trol the statute, which is a record to be controlled only by itself. " When the act is passed the Journal is expired!" 22 It is interesting to notice the circumstances which surrounded this decision. The case involved a statute passed in the reign of Henry VIII. As no journal was kept for the Commons until the time of Edward VI, the journal of the House of Lords was pressed to show from entries thereon that the bill came up from the lower house with an amend- ment which was a prerequisite to the latter's approval of the meas- ure. The bill, as passed by the Lords and enrolled under the Great Seal, contained this amendment cancelled and suit was brought to invalidate the act, but without success. In the absence of any record from the lower house it is not strange that the act as delivered to the Chancery should be held to be the only true record, yet many of our state courts still follow this precedent by refusing to admit the journals to impeach a properly certified act. 23 JOURNALS PRESUMED FAVORABLE TO THE ACT Another view, which has been expressed by the courts of more than half the states, is that the properly certified act is only prima 20 Kilgore v. McKee, 85 Pa. St. 401. 21 State v. Jones, 6 Wash. 452. In Field v. Clark (143 U. S. 649) the Supreme Court considered that it was advisable to make the certificate of the presiding officers the evidence instead of journals kept by minor officials, who were liable to make mistakes. 22 Rex v. Arundel, Hobart 109. 23 Yolo County v. Colgan, 132 Cal. 265; Eld v. Gorham, 20 Conn. 16; Miller v. Oclwein, 55 Iowa 706; Schutt v. State, 173 Ind. 689; Owensboro v. Barclay, 102 Ky. 16; Swann v. Buck, 40 Miss. 268; State v. Beck, 25 Nev. 68; Power v. Kitching, 10 N. D. 254; Mason v. Cranbury Twp., 68 N. J. L. 149; Narregang v. Brown County, 14 S. D. 357. It is believed that the above comprise those states holding th enrolled act conclusive. 8 Procedure in State Legislatures fade evidence of its validity and that recourse may be taken to the journals to see if all constitutional provisions relative to procedure have been observed. The presumption, of course, is always favor- able fco the act, but this may be overthrown by affirmative evidence on the journals. But it must appear affirmatively and beyond all doubt that the act was not properly passed. If the journals are silent or ambiguous it must be presumed that the constitution was followed. For example, if the journals show that a bill failed to receive a constitutional majority on final passage and the words "so the bill failed to pass" were entered, the bill never became law, although this could not be presumed from mere silence. 24 In like manner the courts will not consider the fact that notice of intro- duction of a local or private act was omitted although the constitu- tion may require it to be published. The advertisement of such notice in the constitutional manner will be presumed and the jour- nals need not show it. 25 Although it usually cannot be assumed that constitutional re- quirements were omitted because a record of every step stipulated 24 Currie v. Southern Pacific Co., 21 Ore. 571. The following cases illustrate the points involved: C. B. & Q. v. Smythe, 103 Fed. 376; Gibson v. Anderson, 131 Fed. 376. In re Duncan, 139 U. S. 449 (Federal Courts adopt adjudication of state courts). For acts of Congress the enrolled bill is sufficient, Field v. Clark, 143 U. S. 649. Ex parle Howard & Co., 119 Ala. 484; Andrews v. People, 33 Colo. 193; State v. Francis, 26 Kan. 724; Attorney-General v. Rice, 64 Mich. 385; State v. Field, 119 Mo. 593; Colburn v. Mcdonald, 72 Neb. 431; Territory v. O'Conner, 37 N. W. 765; State v. Smith, 44 Ohio St. 348; Hiskell v. Knox Co., 177 S. W. (Tenn. 1915) 483. Of course if the constitution stipulates entry in the journal the journal must show the entry. 26 Vann v. State, 65 Fla. 160; Critcher v. Crawford, 105 Ga. 108; Bray v. Williams, 137 N. C. 387. In order to make the requirement of notice effective Alabama included in her constitution, adopted in 1901, a clause which prescribes that the evidence of the publication of notice shall be spread on the journals and directs the courts to pronounce void any private or local law for which the journals do not show that notice was published. Numerous acts have thus been nullified. See Kumpfe v. Irwin, 140 Ala. 460. But acts have been held invalid because the requirement of notice was not observed, Ashbrook v. Shaub, 60 S. W. (Mo.) 1085; Attorney-General v. Tuckerton, 67 N. J. L. 120; Chalfant v. Edwards, 173 Pa. St. 246; here the fact of no notice was admitted by both parties and the court accepted their admission. In New Jersey this was held insufficient to overthrow the prima facie evidence of the act (Freeholders v. Stevenson, 46 N. J. L. 173). The fact of no notice is hard to show if the courts accept the journals as final. Inherent Powers in Matters of Procedure 9 in the constitution does not appear in the journals, 26 the situation changes when certain facts are obliged to appear thereon. Such facts can be shown in no other way and their failure to appear on the journals will invalidate the act, and no presumption arises from the enrollment of the act. 27 The trend of recent decisions has been towards permitting re- sort to the journals to ascertain if the constitutional forms of proce- dure were observed, and away from the English view that the act is the only record. Indeed the courts of two states have gone so far as to demand that the journals must show affirmatively every step prescribed by the constitution. Failure to do so is conclusive evi- dence that the step was not taken, regardless of whether or not the constitution explicitly orders entry thereof. Therefore, the express provision of the constitution for the entry of the ayes and noes on the journal does not imply that other steps need not be taken, the conclusion being that if facts are not set forth they did not transpire. 28 This would seem the sensible view if effect is to be given to ar- ticles in the constitution designed to cure flagrant evils in parliamen- tary practice. If recourse is had to the journals they should be considered as a true and complete account of the legislative body, and omission therefrom of a step made mandatory by the constitu- tion should be conclusive evidence that it was not taken. Journals might then be kept with greater care, and this in turn would pro- mote closer adherence to constitutional methods. CONSTITUTIONAL PROVISIONS SOMETIMES DIRECTORY The view sometimes taken by the courts that constitutional directions concerning procedure are directory merely and not man- 26 Presumed that ayes and nays were taken on final passage of a bill although journal was silent, State v. Rogers, 22 Ore. 348. The same when journals fail to show three readings required by the constitution. See 44 Cent. Digest; Statutes, par. 17. 27 Ex parte Howard, 119 Ala. 484; State v. Swan, 51 Pac. (Wyo.) 209. Cotton Mills v. Waxhaw, 130 N. C. 293. 28 Cohn v. Kingsley, 5 Idaho 416. In Brown v. Collector, 5 Idaho 589, the journal did not show that the bill had been read by sections as the constitution required. See also Spangler v. Jacoby, 14 111. 297. In Ryan v. Lynch, 68 111. 160, the journal did not show that the bill had been read on three different days. People v. Bowman, 247 111. 276; Neiberger v. McCullough, 253 111. 312. The journal must show that the bill and amendments were printed. 10 Procedure in State Legislatures datory gives the legislatures still greater freedom in their applica- tion. This doctrine is borrowed from the principle that, when the provisions for carrying out a statute were not designed to operate as a condition to its performance and do not to the judicial mind appear essential, they will be regarded as directory. In such cases the proceedings under the act will be held valid, although the com- mand of the act as to form and time has not been strictly observed ; the time and manner not being the essence of the thing required to be done. 29 In many cases this is the reasonable attitude towards consti- tutional prescriptions, since the execution of the legislative function is more important than the method. Accordingly it is usual to hold that an incorrect enacting clause will not invalidate the law, the form set forth in the constitution being considered directory. 30 Constitutional provisions that bills shall be enacted into clauses and sections are viewed in the same light. 31 In situations such as these the will of the framers of the constitution may be accomplished with- out strict adherence to constitutional standards, for the questions are purely ones of form, but when methods of procedure are involved the situation is more serious. Requirements such as that a bill shall be read on three separate days exist to insure deliberation and to check flagrant evils. As Cooley 32 well points out, the interpre- tation of constitutional prescriptions which renders them merely directory is charged with dangerous elements. The fundamental law does not generally undertake to prescribe rules of proceeding except where such rules are looked upon as essential to the thing to be done. Sections which require that every bill shall have three readings on separate days have sometimes been held mandatory, sometimes merely directory, 33 and the same is true of the provision that all 29 Potter's, "Dwarris on Statutes," p. 222 and p. 226 note. See also People v. Spruance, 8 Colo. 307. 30 McPherson v. Leonard, 29 Md. 377; Cape Giraudeau v. Riley, 52 Mo. 424; Swann v. Buck, 40 Miss. 368; State v. Burrow, 119 Tenn. 376; But in State v. Rogers, 10 Nevada 250, the omission of one word from the enacting clause rendered the act void. Tne Court was moved to this extreme view by Cooley on "Constitutional Limitations," 7 ed., p. 214. 31 County Commissioners v. Meckens, 50 Md. 28. 32 Cooley, "Constitutional Limitations," 7 ed., pp. 213-214. 83 Mandatory, Ryan v. Lynch, 68 111. 160; Board of Supervisors v. Heenan, 2 Minn. 330; In the latter case the court considered that since the constitution Inherent Powers in Matters of Procedure 11 bills shall be signed by the presiding officers and the fact entered in the journals. 34 Although clauses requiring that bills have but one subject clearly expressed in the title are generally mandatory, a few decisions have declared them to be merely directory. 35 The rule has been applied that the constitutional prescription is directory where there is no clause declaring the act void if the direction be not followed, 36 whereas if the reading is that "no bill shall become a law" unless a certain procedure is followed the pro- vision is mandatory. 37 However this rule is not general, for affirma- tive clauses have often been held mandatory, largely under the in- fluence of the attitude taken by Cooley. From the viewpoint of legislative procedure the question is not of prime importance as long as courts refuse to invalidate an act other than by affirmative state- ments on the journal. PAROL EVIDENCE INADMISSIBLE TO OVERTHROW JOURNALS The courts have consistently refused to admit parol evidence to overthrow the favorable presumption towards an act, the journal being the only evidence competent to impeach it. 38 The integrity of the journal cannot be assailed for fraud or deceit. When ap- proved by the house it becomes the act of the house itself and to in- quire into its veracity would be to invade a coordinate department provided that the necessity for three readings on separate days could only be suspended by a two-thirds vote, it was demonstrated that the framers of the fundamental law attached great importance to the manner of passing an act. Directory, Miller and Gibson v. State, 3 Ohio St. 475. 34 Mandatory, State v. Glenn, 18 Nev. 34; State v. Keisewetter, 45 Ohio St. 254; Burrit v. Commissioners, 120 111. 322. Directory, In re Roberts, 5 Colo. 525; Leavenworth v. Higgiribotham, 17 Kan. 62 (otherwise the presiding officers would have the veto power); State v. Mason, 155 Mo. 486; Telegraph Co. v. Nashville, llSTeirn.l. 86 Washington v. Page, 4 Cal. 388; In re Boston Mining Co., 51 Cal. 624; Ohio v. Corrington, 29 Ohio St. 102. 36 People v. Supervisors, 27 Barb. (N. Y.) 584; People v. Supervisors of Chen- ango, 8 N. Y. 317; McClinch v. Sturgis, 72 Maine 288; State v. Meade, 71 Mo. 266. 17 Larkin v. Simmons, 155 Ala. 273; Cummins v. Gaston, 109 S. W. (Tex.) 476. " Ames v. U. P. Rwy. Co., 64 Fed. 165; State v. Brody, 148 Ala. 381 ; People v. Hatch, 33 111. 9; Brays v. Williams, 137 N. C. 387; Auditor-General v. Board, 51 N. W. 483 (Mich.). 12 Procedure in State Legislatures of government. If the journal contains errors the house itself is the only tribunal competent to correct them. 39 This freedom from judicial inquisition is granted the legislature as a right inherent in an independent department of government. Where the constitution has imposed restrictions upon it as to the methods by which it shall act, it claims the prerogative of apply- ing these restrictions. If, during the passage of an act, the consti- tution has been violated, attention is called to the breach by raising a point of order on the floor. Thus a point of order that notice had not been given for a private bill as ordered by the constitution is fatal if sustained. 40 Presiding officers refuse to rule on the con- stitutionality of a measure unless a point of order is involved. It is then their duty to do so. 41 The Missouri Constitution (Section 37, Article III) empowers five members of either house to protest that the constitution has been violated in the passage of a bill, which protest is to be noted on the journal. The courts hold, there- fore, that in the absence of such protest it will be presumed that the legislature was not remiss. 42 But as the same courts have ruled that to nullify an act the journals must show affirmatively and be- yond all doubt that the constitution was not followed, it is difficult to see how a parliamentary objection would have much weight. 43 THE VALIDITY OF PARLIAMENTARY RULES The constitutions of all the states except Georgia empower their legislatures to make their x>wn rules of procedure, although noth- ing is clearer than that this prerogative would inhere without express constitutional grant. From this it follows that no court will review any infraction of the legislative rules, and if the houses choose to ignore them completely the validity of their acts is in no " State v. Smith, 44 Ohio St. 348. Here a spurious and false journal accom- plished the validity of an act; protests and affidavits spread on the journal at a later date were of no effect. See also Taylor v. Beckham, 108 Ky. 278, where it was averred that in an election contest following the murder of Goebel the journals were fraudulently made out pursuant to a conspiracy. See further Wise v. Briggs, 79Va.269. 40 Penna. House Journal, 1876, p. 790 et passim. 41 For a complete discussion see Mass. Senate Journal, 1869, p. 341. McCafferty v. Mason, 155 Mo. 486. State v. Field, 119 Mo. 593. Inherent Powers in Matters of Procedure 13 way affected. 44 A house may adopt any procedure it sees fit, and change it at any time without notice, but it cannot bind itself by establishing unchangeable rules. 45 In this respect joint rules are no more binding than the rules of a single house, their observance likewise resting upon the discretion of the legislature. 46 The constitution of Minnesota contains a clause obviously de- signed to increase the authority of the rules of the two houses. Bills, passed in conformity to the rules of each house and to the joint rules, are to be presented to the governor. (Section 21, Article IV.) In an early case the Supreme Court of the State dis- cussed the probability that by this recognition tihe rules were de- signed to be placed on the same footing with the rules incorporated in the constitution. 47 Nevertheless, no court has nor will any court be apt to test the possibilities of this provision because of the doc- trine that no act can be impeached except by affirmative evidence on the journal. 48 THE AUTHORITY OF STATUTES REGULATING PROCEDURE Brief reference has already been made to frequent attempts to secure a more refined procedure by incorporating certain rules in the statute law, the thought being that once a rule has received the' ap- proval of the governor in the form of a legislative act, its observance rests no longer upon the whim of the legislature. Following the passage of such laws, the question arose whether or not a binding authority higher than a mere parliamentary rule had been attained in any manner which the courts were bound to respect. The gen- eral verdict has been that these self-inflicted restraints have no higher validity than a rule of practice of a single house. Thus a statute directing that every bill shall have three readings on sepa- rate days was merely directory and its suspension by less than a two- thirds vote, although forbidden by the act, did not invalidate legis- lative action on a bill. Such a statute receives its entire force from legislative sanction and exists only at legislative pleasure. It is no more than a rule of procedure adopted by the legislature to 44 McDonald v. State, 80 Wis. 407; Brays v. Williams, 137 N. C. 387; Wise v. Bigger, 79 Va. 269. 46 French v. State Senate, 146 Cal. 604. 46 Railway Co. v. Gill, 54 Ark. 101. 47 Board of Supervisors v. Heenan, 2 Minn. 335. 41 State v. Hastings, 24 Minn. 78. 14 Procedure in State Legislatures govern its own proceedings. 49 Neither can one legislature bind another by a particular mode of repealing or amending statutes, for no form can be prescribed for legislative action which the constitu- tion does not lay down. 50 The position of the courts is further revealed by their attitude towards acts which have been called out by the numerous evils at- tending special and local legislation. In states where no constitu- tional mandate exists it has been common to provide by statute that notice of intention to introduce any special or local act must be pub- lished in approved form. The universal opinion of the courts has been that such statutory requirements may be disregarded since they can exist only for the legislature's guidance and convenience. 51 The practice of Congress conforms to the theory prevailing in the states. A rule of procedure accordingly is not controlled by any act of a preceding Congress, 52 although a law passed by the then existing Congress has been recognized as binding in such matters. 53 It need hardly be pointed out, however, that, when the question of suspension comes up, statutes of the sort under discussion have a validity higher than a simple rule, inasmuch as the prestige of a statute is greater than that of a mere rule of practice. In an effort to assure the actual presence of members at the final passage of a bill and to escape the " short roll call," New York 49 Sweitzer v. Territory, 5 Okla. 297. 60 Brightman v. Kernor, 22 Wis. 54. The New York Commission to recommend changes in methods of legisla- tion (appointed by the Governor, 1895) urged that certain provisions of the joint rules be enacted into statutes that they might at least be binding on each house taken separately. (N. Y. Assembly Documents No. 20, Session of 1896.) This is an incorrect statement of law. "Manigauti v. Ward, 123 Fed. 707 (affirmed 199 U. S. 473, although this point did not come up). Derby & Turnpike Co. v. Parker, 10 Conn. 522; Chamlee v, Davis, 115 Ga. 266; Opinion of the Justices, 63 N. H. 625; Sherman v, Benford. 10 R. I. 559. In Chalfant v. Edwards, 156 Pa. St. 246, the court spoke with disfavor of the opinion that one legislature might disregard at pleasure the directions of its pre- decessor concerning the publication of notices of private bills, and pointed out that although the power to repeal the act could not be doubted yet it had not been exercised, and the citizens of any locality had the right to rely on the observance of its provisions. The case, however, was decided on other grounds. 62 4 Hinds 3298, 3579, 3819. " 5 Hinds 6767, 6768. Inherent Powers in Matters of Procedure 15 passed an act which directs the presiding officers of each house to certify to the presence of a constitutional quorum and passage by a constitutional majority. 64 No bill was to be deemed passed unless so certified, and the certificate was to be conclusive evidence of the fact of passage. Yet this law has been declared void. If the journals show a constitutional quorum present and the necessary affirmative votes, the act is good, 55 and a defective certificate can be supplemented by the journals. 56 Here again the legislature is forbidden the right to bind itself in matters of form and the con- clusion must be that the success of measures such as we have been discussing must be judged by their moral effect upon the legislature's conduct of business, and not by their legal force. The experience of those states which try to keep their codes complete illustrates the futility of attempts to control legislative practice, as it were from the outside. For example the Political Code of California (Sec. 249-250) requires that each bill proposing an addition to the general laws shall be codified by the judiciary committee of one of the houses, but although this codification is omitted the validity of such acts cannot be questioned. 57 LEGISLATIVE EMPLOYES Attempts to regulate by statute the number and compensation of legislative employes have likewise involved the power of the sep- arate houses to manage their own affairs in their own way, without being amenable to any other department of government. The multiplication of legislative sinecures has been a common method of rewarding the faithful, and many states, profiting by experience, have set forth by statute the specific number of employes allowed each house and their compensation. Clearly, however, the ob- servance of such laws rests with the houses of the legislature and varies widely in different states. It can be truthfully said that they are passed largely for moral effect. In Massachusetts the provisions M Now known as Chap. 37, IT 40, Laws of 1909. 65 In re Stickney's Estate, 185 N. Y. 107. 86 People v. Supervisors of Chenango, 8 N. Y. 317. 67 Statement of N. W. Thompson, President pro tern of the California Senate, 41st Session, in Legislative Manual for California, 1915. Mr. Thompson also suggests that laws of this nature are contrary to the provision of the constitution which empowers each house to determine the rules of its own proceedings. 16 Procedure in State Legislatures of the statutes are followed scrupulously in the employment and payment of legislative helpers. 58 Vermont reports that consider- able was accomplished by embodying such provisions in the laws rather than leaving them to the independent action of the two houses, and that they have failed of observance only in unimportant details. 59 On the other ,hand, it is common elsewhere for the legis- lature to disregard such regulations on the ground that they in- fringe upon the legislative prerogative. 60 The method prevailing of old in New Jersey was for each house to employ a great number of unnecessary aids and to take the chance that their compensation would be provided for in the bill which passed at the close of the session to meet unexpected expenses. Since the passage of the act defining the number and compensation of employes this abuse has to a great extent disappeared, although the scheme has not been entirely successful. 61 Indiana's recent experience is an extreme illustration of the situation. By an act of 1895 the number and pay of the legisla- ture employes were strictly limited, but for several years the al- lowance for employes had been increasing in both houses contrary to the statute, until finally in the session of 1913 the amount spent for help exceeded all previous records. 62 Following this session 68 Statement of Mr. Henry D. Coolidge, Clerk of Massachusetts Senate. 69 Mr. John M. Avery, Legislative Reference Librarian, Vermont. 60 Miss Ida M. Anding, Legislative Reference Librarian, South Dakota, states that subsequent legislatures have disregarded for the above reason an act regulating employes. In Illinois both houses have violated similar provisions (Mr. Finley F. Bell, Legislative Reference Librarian) . Because the number of employes at the 1913 session had been more than double that provided by statute, the Progressive element of the 1915 House tried to get the committee on contingent expenses on record as to how many would be added in excess of the statute during the session upon which they were entering (Illinois House Debates, lQl5, p. 149). The at- tempt failed and the usual conditions prevailed. In New York, in order to bring the law into conformance with practice, the legislative statute was amended in 1915 to permit either house to increase at will the number of its employes (Laws of 1915, c. 483). In the majority of states excess employes are paid from the con- tingent fund. 61 Mr. John P. Dullard, New Jersey State Librarian. 62 In 1913, although the statute allowed forty-five employes in House and Senate, the actual number was approximately one hundred and fifty. Between 1907 and 1913 the sum expended for "help" in the Senate increased from $36,668 to $61,572. The allowance for doorkeepers increased more than seven thousand dollars, and the added employes performed only nominal duties (See Senate Inherent Powers in Matters of Procedure 17 several members and officers of both houses were indicted and tried in criminal court for making out fraudulent warrants to pay men employed contrary to law. The question considered by the court was whether the Senate and House acting separately had the right to employ assistants in excess of the numbers named in the act. 63 The court did not accept the contention that the act of 1895 was binding on the two houses until repealed. The power of each house to fix the number of employes was not conferred by the General Assembly, but came in the nature of an inherent right which the General Assembly acting as a law-making body cannot curtail or limit. Therefore the act was never binding. This opinion represents fairly well the usual attitude of legis- lators toward statutes which seek to control legislative employes. Freedom to determine the number and allowance of employes is a prerogative, similar to the power of judging of the qualifications of members or of punishing for contempt, and is indispensable. 64 In accord with this doctrine, a joint committee of the Mon- tana Legislature appointed to make provision for the payment of employes recently reported that the section of the constitution 65 which requires the legislature to provide by law the number and compensation of employes is fulfilled if the legislature leaves by law to each house the right to designate the number of assistants as the times demand. 66 In opposition to the above, is the view thatjthe right to employ clerks and assistants at will is not inherent, but can be restricted by law. The legislature, although the law-making power, is itself regulated and controled by law. Therefore, if employes are de- sired in addition to those specified by statutes, the law must be so Journals, 1907 and 1913). As was pointed out at the time, there had been no in- crease in the size of the floors to sweep or in the number of spittoons to clean. The session of 1915 managed to function with a material reduction in the number of employes. 63 From the opinion of the trial judge, rendered in the Marion County Crim- inal Court, Dec. 17, 1914. 64 Supported in Cliff v. Parsons, 90 Iowa 665; in Cook v. Auditor-General, 129 Mich. 48, the court specifically refused to take the position that payments to legislative employes made by resolution and properly endorsed were illegal al- though contrary to a clearly expressed statute. 85 Sec. 28, Art. V. 68 Montana House Journal, 1915, p. 65. 18 Procedure in State Legislatures framed or amended as to authorize their employment. 67 Such a law, it is urged, is binding on the houses to the same extent as on a private individual, and can be repealed or disregarded only by the concurrent action of the two houses and the approval of the gov- ernor. 68 Contrary to the action of Montana, the legislature of Colorado fulfilled the constitutional requirement that no payments should be made to employes except those appointed in pursuance to law, by specifying by statute the number and rate of compensa- tion. The Supreme Court has held that, in view of this, the houses cannot by separate resolution fix the compensation of employes at a rate higher than that allowed by existing law. The constitutional prescription is a mandate to the legislature to fix it by law, since it is a provision essential to the protection of public rights, and when such a law has been enacted the legislature cannot ignore it. 69 The number of times the question of the right of the legislature to employ clerks and assistants has been considered by the courts is small, and it is not possible to cite precedent that is conclusive, yet the view that the legislature in this connection is at all times a law unto itself is more in keeping with the decisions of the courts concerning statutes seeking to control other phases of legislative procedure. Granted that the legislature has the right under the constitution to employ assistance that it may discharge its business most expeditiously, it is difficult to see how it can be restricted by self-imposed law. Any other view extends the control of the execu- tive, whose approval would be necessary to a removal of the re- striction, beyond mere approval or disapproval of the legislative product to a share in the internal management of the business of the houses, a result certainly never anticipated by the framers of our state constitutions. 70 67 State v. Wallichs, 14 Neb. 439. Yet the Legislature has not felt itself bound, and in a number of cases has exceeded the statute limit. (Statement of Mr. A. E. Sheldon, Director Nebraska Legislative Reference Bureau.) 88 State v. Auditor-General, 61 Mo. 229. See also Walker v. Coulter, 113 Ky. 814, although here the constitution strictly specifies the number of employes and the point under discussion was not necessary to the decision. 9 People v. Spruance, 8 Colo. 307, 70 The legislature's independence in matters relating to employes is somewhat restricted by constitutional prohibitions upon increases of compensation after the service is rendered. See Robinson v. Dunn, 77 Cal. 473; State v. Williams, 34 Ohio St. 218; State v. Chatam, 21 Wash. 437. Recently the Illinois Supreme Court refused to allow an appropriation for Inherent Powers in Matters of Procedure 19 In the light of the foregoing the following generalizations may be made. If the legislature has the power to act under the constitu- tion (the power may be inherent in the very nature of the legislative function), it possesses full competence to decide what methods of procedure it will employ. The courts will review the right to exer- cise the power but will leave the application of constitutional directions concerning procedure in the hands of the legislatures themselves. If the legislative bodies are determined to evade checks placed in the fundamental law, the evasion must appear affirmatively on the journals. If legislatures are remiss in interpret- ing constitutional provisions the remedy " which the constitution provides by the opportunity for frequent renewals of the legislative bodies is far more efficacious than any which can be afforded by the jury." In the last analysis we must look to the legislature itself to give living content to any rules, constitutional or otherwise. This does not signify, however, that constitutional requirements concern- ing procedure are without effect. Usually they are respected to the letter even if the spirit be not always fulfilled, and where the inten- tion of the framers is not accomplished there is ordinarily a good practical reason for the failure to do so. telephone fees of members or for the mileage of members. It denied that these expenses were incidental to the discharge of the legislature's business. (Fergus Y. Russell, 270 111. 304 and 626.) Nevertheless it may be argued with reason that the telephone is as necessary as are pages and stenographers. CHAPTER II THE ORGANIZATION OF THE HOUSES The first step in the organization of a new legislature is of necessity the preparation of a temporary roll. If the certificates of the members-elect are all regular and uncontested this is a mere clerical duty. But if the majority of one party is small and doubt- ful, and conflicting election certificates have been presented, the power to draw up the roll is open to abuse, since it is highly desirable to either party to construct an organization which will favor its interests in the contests which are to follow. THE MAKE-UP OF THE ROLL Contrary to the practice of Congress, the legislatures of many states have taken the make-up of the roll out of the hands of the clerk of the preceding session and placed the duty upon the secre- tary of state, who certifies to the correctness of the list of names which he presents. He is presumed to be a more responsible officer than the clerk and any member named on the roll is entitled to his seat until action is taken unseating him. 1 In other states the temporary clerk calls the roll of counties and members-elect present their certificates as their districts are called. 2 Or the duty may be left with the clerk of the last session, with the specification that only members holding proper election certificates shall be placed on the roll. 3 In Colorado and Nebraska permanent organization is delayed until the report of a committee on credentials 4 but this does not destroy the advantage gained by the possession of a majority on the temporary roll or the importance 1 Clerk's Manual, New York Assembly (1916), p. 509, and Assembly Journal, 1914, p. 30 et seq. Also Legislative Decision No. 25, Michigan Manual (1915), p. 645. Members are, with few exceptions, sworn according to this temporary roll. See journals of any state. 8 Fixed by statute in California, Indiana, Minnesota, Montana, Ohio and Texas. 3 Fixed by statute in Arizona, Iowa, Maryland, Nebraska and North Dakota. 'Colorado, Annotated Statutes If 2897; Nebraska, Revised Statutes (1913), If 3742-3743, and the Blue Book (1915), p. 470. [201 Organization of the Houses 21 of the clerk's power in making up the same. With these two exceptions, persons appearing on the roll upon which the house is organized take the oath and participate in the permanent organiza- tion, and remain members until removed by the house. In New Hampshire, however, no name is to be entered for any district from which conflicting certificates of election have been returned. 5 The method of making up the roll is usually prescribed by statute. In Illinois, however, it has been left to custom, and confu- sion sometimes results. At the organization of the 1915 session the president of the Senate of that state refused to admit the roll prepared by the secretary of state, which would have deprived his party of control, on the ground that no statute made this the offi- cial roll. The parties were evenly matched, and, as no roll could be agreed upon, permanent organization was delayed for more than six weeks, or until a special committee had completed a recount in the doubtful districts. 6 CONTESTED ELECTIONS One of the first questions to engage the attention of the houses is the disposition of contested elections. As shown in the chapter above, this right is exclusive with each house and perhaps no power has led to graver abuses. In no state are such contests dealt with in a systematic way, nor have party organizations hesitated to strengthen their position by high-handed practices in unseating members. Where no immediate decision is necessary to party advantage the contest may drag on for weeks. In 1915 the Assembly Committee on Privileges and Elections in New York spent in two election cases $9,075.98 for hotel expenses alone. 7 In 1914 a con- tested election before the same body was not decided until the day of adjournment, and the duly elected representative served but part of one day. Thus two men drew full salaries for the same office. 8 Inasmuch as control by the legislature of the election of its members is no longer necessary as a defense against executive encroachment, England has outgrown the conviction that the power 5 Public Statutes, Chap. 4, Sec. 6. Illinois Senate Debates (1915), pp. 4, 5, et passim. 7 Itemized account approved by the speaker, New York Times, Jan. 26, 1916. 1 Report of the Citizens' Union Committee on Legislation for 1914, p. 4. 22 Procedure in State Legislatures of decision in contested cases is an inviolable parliamentary privi- lege, and since 1868 such cases have been referred to the courts. 9 But the American courts will not permit our legislatures to part with this jurisdiction. The constitution of Pennsylvania directs that the trial of contested elections of members of the General Assembly shall be by courts of law 10 and in conformity to this the legislature designated the courts and the manner of holding trials. The Supreme Court held, however, that by this the legislature was not deprived of the power, granted in another section of the con- stitution, of judging of the election of its own members. The pur- pose of the constitution and the statute was merely to provide a method of procuring and presenting to the respective houses evi- dence necessary for an intelligent decision. Final judgment must rest with the house. 11 More recently in two important cases the power of the courts to render even advisory opinions has been denied. The Corrupt Practices Acts of Massachusetts and of Montana provided that cases of contested elections of members of the legislature should be heard by the courts upon the presentation of proper petitions. The judge was to return the findings to the secretary of state to be transmitted to the house for which the contestant was a candidate, and decrees were to be entered in favor of the one shown to be law- fully elected. But in reviewing these provisions the highest courts of both states held that if it was their purpose to give final juris- diction to the courts, they were void as invading an exclusive pre- rogative of which the legislature could not divest itself. Moreover, if the decree of the court was to be advisory merely, a non-judicial duty was imposed on the courts. They were made nothing other than the agent of the legislature, and their opinion at best could be only tentative. In accordance with the principle of the separation of the powers of government such use cannot be made of the courts. 12 9 See Parliamentary Debates, July 6, 1906, where a danger is disclosed in the English system. A strong element in Commons wished to drive a justice to resign because of his conduct in an election case. The Prime Minister's indictment of the old method prior to 1868 could be applied word for word to present conditions in our state legislatures. 10 Art. Ill, Sec. 17. " In re Contested Election of McNeill, 111 Pa. St. 235. 12 Dinan v. Swig, 112 N. E. 91 (Mass. 1916); State v. District Court, 50 Mont. 134 (1914). Organization of the Houses 23 Thus it is seen that escape from the almost farcical proceedings before election committees by following English example is rendered impossible through our unique doctrine of the relation of the depart- ments of government. SELECTION OF EMPLOYES The selection of legislative employes is the third important step in the business of organization. While the needs of different legislatures vary it is generally admitted that, were the selections made on the basis of skill and training, fewer men would do the work more efficiently. The general report from the states is that clerks and employes are chosen solely on grounds otf political expediency. Indiana follows the happy plan of making appoint- ments for half the session, employing a new corps for the last thirty days. The following indictment by the Governor of Idaho could apply quite generally: There has been a general increase in the expenses of succeeding legislative sessions out of proportion to the increase in membership. Previous legislatures have placed upon the pay rolls many more employes than were strictly necessary in the transaction of their legitimate business. Much higher salaries have been paid than would have been necessary to secure similar services by any corpora- tion or individual. 13 Two years later'Governor Clark of Iowa arraigned the legislature in more severe language. Much of the money, he asserted, which was expended for legislative "help" was "pure, unadulterated graft." A dozen doorkeepers were employed where none was needed and clerks sat around the chambers in luxurious ease. The system was reprehensible and indefensible, and he called upon the General Assembly to reform. 14 In the Missouri House it is the custom to allow each majority member to name one clerk. Thus the number of employes bears a strict ratio to the size of the party majority. 15 In Indiana it has been estimated that one-third of the employes could do the work. 16 13 Message to the Twelfth Legislature (1913). 14 Biennial Message of the Governor (Iowa), 1915. "Kansas City Times, January 9, 1913. At this session the Democratic majority was the largest in history and approximately 120 clerks were engaged. "Statement of Legislative Reference Bureau in reply to questionnaire of Nebraska Legislative Reference Bureau, 1913. 24 Procedure in State Legislatures Wisconsin has solved the problem of legislative help by adopt- ing the civil service principle under the direction of the chief clerk and the sergeant-at-arms of each house, who make the selections from an eligible list furnished by the civil service commission of the state. 17 The number of employes has likewise been reduced to the minimum necessary to carry on the work with maximum efficiency. 18 The officers and employes may be chosen by the house, as is done in Ohio and Pennsylvania, 19 but it is more usual for the house to elect only the more important officers and to delegate to the speaker or the clerk or the sergeant-at-arms the selection of a host of minor officials. 20 When the power of appointment to desirable positions with nominal duties is lodged with the speaker his position of leadership is strengthened. In Massachusetts the sergeant-at- arms, who is an officer of both houses and appoints numerous minor officials, possesses a great deal of patronage and is a powerful man. 21 Sometimes the selection of the rank and file of employes is entrusted to a committee, not infrequently referred to as the " plunder com- mittee" whose nominations are accepted by the house. 22 Where the personnel of members changes as rapidly as in the state legislatures the securing of expert help is of prime importance. An experienced clerk and a skilled assistant may be instrumental in bringing system and order into an otherwise chaotic body of inex- perienced legislators. To this end permanency of tenure and a graduated order of promotions are absolutely essential. Such a simple reform would result speedily in an improved legislative product, whereas the prevailing situation makes one or two over- worked individuals responsible for the legislative routine while a great number of other employes bask in idleness. It may be noted here that statutes regulating the manner of organization or method of selection of employes have no binding power, should the house -choose to ignore them; and the point of order, that the house is proceeding contrary to law, will not 17 Wisconsin Statutes, Chap. X, Sec. 11 Ig, and House Rule 9, and Senate Rule 93. 18 Statement from Legislative Reference Library. 19 Of course the nominees are selected by a "slate committee." 20 For example, New York and Massachusetts. 21 Frothingham, "A Brief History of the Constitution and Government of Massachusetts," p. 97. 82 For example, Indiana H. J. 1915, p. 73; Kansas and Washington also. Organization of the Houses 25 usually be entertained. For this the states have Congressional precedent. 23 It is usual to adopt the rules of the last session with perhaps minor changes reported by the rules committee. Until the rules are adopted the house operates under general parliamentary law. On these grounds a motion for the previous question was entertained in the New York Senate and is the only instance on record of such a motion being considered by that body. 24 The organization of each house completed and the fact sent by message to the other house, it is customary to appoint a joint com- mittee to wait upon the governor to inform him that the legislature is ready to proceed to business. 23 See 1 Hinds 82, 242, 245. M Clerk'8 Manual, 1916, p. 650. CHAPTER III INTRODUCTION OF BILLS It is generally recognized that our present legislative machinery was not designed to meet the heavy burdens placed upon it in the form of hundreds of measures introduced each session. Legislative channels are congested by countless bills of individual members, and no satisfactory methods have been devised to stem the torrent. Indeed it is not strange that' a procedure developed to secure delib- eration for measures introduced by the tens should prove inadequate when measures are presented by the thousands. At a time when legislation is increasing rapidly in complexity and technical detail there exist no limits, except the self-imposed restrictions of individ- ual members, to the number of bills which a house must consider. 1 EARLY METHODS OF INTRODUCTION The right of a member to demand consideration for a legisla- tive proposal has not always been so clear as at present. In the early days of our state legislatures, following the practice of Parlia- ment, bills could be introduced only by motion for leave or by order of the house, and in either case action by a committee was neces- sary. 2 A member seeking to introduce a bill would, after one day's notice, state to the house its general nature and move for leave. Leave being granted, a committee, of which the proponent was always made chairman, was appointed to prepare and bring in the bill. 3 1 See Bulletin of Nebraska Legislative Reference Bureau, "Legislative Proce- dure in the Forty-eight States," pp. 10-11, for a table of number of bills intro- duced each session from 1909-1913. Each successive session shows an increase. 2 Clark, "Assembly Manual for New York" (1816); Sutherland, "Legisla- tive Manual for Pennsylvania" (1830). See also the journals of New York, Pennsylvania, Massachusetts and Virginia for about the year 1800. For a com- plete discussion of this method see Debates of Congress, 1 Sess., 20 Cong., 823-827. 3 Earlier practice in Pennsylvania had allowed a member to introduce a bill in place. The rule was, "Any member may read a bill in his place, and by per- mission of the house present it to the chair; it shall then be proceeded upon as if presented by a committee." (Rule 14, Pa. H. J. 1805, p. 28.) Yet the right was [26] Introduction of Bills 27 Closely related to the above method was the order of inquiry, which was simply an order to a committee to consider the expe- diency of legislating along a certain line. 4 It was grounded on a presumed lack of knowledge and was an investigation started by the legislature to secure information which could not otherwise be obtained. 5 At one time generally employed, 6 this form survived in Massachusetts alone, where it was .not abolished until 1893. 7 By that time it had become the normal way of introducing measures for consideration, but having lost all traces of its original purpose, it remained only as a cumbersome method of initiating legislation. Committees were charged with preparing measures when, because of the great increase in the number presented, their normal function was to sift measures, and great delay resulted. A petition often formed the basis of a bill in the earlier days. Indeed the chief work of standing committees was the consideration of petitions. Originally, a committee reporting favorably recom- mended that a select committee be appointed to bring in a bill along the lines of the petition. Reference of a petition, however, soon came to confer authority to introduce a bill formally, although theretofore the committee in possession of the petition had not been able to report by bill unless empowered to do so by a special resolu- tion. 8 Introduction by petition is still common in some New Eng- restricted by requiring leave to be obtained. An examination of the journals will show that but few were introduced in this manner and that practically all bills were presented by a committee pursuant to order. So strong was the feeling that measures introduced should first be subjected to review that later the privilege of introducing bills in place was withdrawn, and the colonial practice of introduc- tion solely by committee was restored. 4 In Congress it was "a most common form" for measures other than those initiated by petition. (Debates of Congress, 2 Sess., 19 Cong., Col. 776; and statement of Mr. Polk, Speaker, Debates of Congress, 2 Sess., 24 Cong., Col. 1340. See also the journals of the time.) 5 Report of the Special Rules Committee, Massachusetts House Documents, No. 5, Session of 1893. 6 See journals of the legislatures of the first quarter of the nineteenth century, in particular the journals of Pennsylvania. 7 Massachusetts S. J. 1893, p. 155. Today an order of inquiry merely author- izes an investigation and not the introduction of a bill. (Ruling of the Speaker, H. J. 1898, p. 456.) 8 See journals of Pennsylvania, Massachusetts or Virginia about 1800. No committee was authorized to report a bill unless granted by resolution the privi- lege "to report by bill or otherwise." In course of time this was granted to cer- 28 Procedure in State Legislatures land states and is required in Massachusetts for all private bills. The petition, however, must be accompanied by a draft of the bill, and although it is in itself a mere survival, only a fraction of even the general measures in Massachusetts are introduced without it. 9 The point of order that a bill is broader in its scope than the peti- tion will be entertained. 10 The cumbersome method of appointing a committee to prepare and bring in a bill gave place, as the pressure of business increased, to introduction of the complete measure from the floor, upon leave, and after one day's notice. 11 At first debate might occur upon the motion for leave but it soon became common to grant leave to all by unanimous consent. Thereupon introduction at will without the formality of securing leave came to be permitted. 12 From this brief historical survey it is clear that originally the privilege of a member to introduce measures for consideration was not the unregulated right which it is today. The prevailing doc- trine was that the consent of the house, or at least of a committee thereof, must be gained before a bill could be admitted for considera- tion, and in granting assent real deliberation was involved. 13 The tain standing committees for the session, and later it was extended to all by a blanket resolution. Afterwards it was incorporated in the rules. 9 Massachusetts Senate Rule 22, House Rule 29. 10 Notes on Rulings, Massachusetts Manual 1916, p. 634. The method permits measures to be proposed without a member being recognized as sponsor, for although some member must endorse each one, he is not thereby made advo- cate for it. (Frothingham, "Brief History of the Constitution and Government of Massachusetts," p. 93.) 11 As early as 1808 introduction by members from the floor was permitted in the New York Senate. When first recognized by the rules the method was em- ployed but little, the great bulk of proposed measures coming in by petition. 12 In 1843 in Pennsylvania; House Resolution No. 31. In 1868 the New York Assembly adopted the order of introduction of bills on call of counties (A. J., p. 94). Several states still adhere to introduction by leave in which case one member can compel a motion to grant leave. 13 The question was fully discussed in Congress in 1827 when a proposal was up to amend the rules to make it clear that no bill should be introduced except upon the report of a committee, the old rule being so worded as to lead some to fear that bills might be brought in without committee action thereon. The reason given why the House usually admitted notice of intention to introduce a bill was that the judgment of the committee which would report on its expediency would be accepted since the committee exercised a discretion in the matter. In the course of the debate Mr. Archer said: "But if a member of the House may, Introduction of Bills 29 sifting forces of the house were thus applied before legislative pro- posals assumed the dignity of bills. Bills were introduced as the result of committee deliberation and, with the exception of con- sideration in the committee of the whole, were not usually sent again to a committee. PERSONAL RESPONSIBILITY OF MEMBERS FOR INTRODUCING MEASURES In our legislatures, where nothing like a responsible ministry has been developed, action must be inaugurated by the private member. With the exception of appropriation bills, measures are rarely introduced by committee action. Members are proverbially careless about exercising their right. They are not impressed with the value of the legislature's time nor are they conscious that, by their failure to select carefully what measures they will propose, they render deliberation upon them a mockery. A recent investiga- tion carried on among the members of the Nebraska Legislature revealed that only 40 per cent of the bills introduced were the result of the members' own initiative or study of the subject. Sixty per cent were introduced at the request of individuals or societies. 14 Permitting the words "by request," to be endorsed upon a bill, as is done in many states, favors the introduction of trivial measures by relieving the proponent of responsibility. The practice reaches a real abuse in Missouri, where in 19.15, 15 per cent of the House bills were "by request." Very rarely in any state do such measures become law. Generally they are never reported favorably from committee. In Pennsylvania such an endorsement means the death warrant of a bill, as members argue that there must be some- thing wrong if the sponsor is unwilling to identify himself with it. 15 on leave, bring in any bill which suits his particular views, and that bill must of necessity pass immediately to its first and second reading, all sound legislation would be at an end." (Debates of Congress 1 Sess., 20 Cong., Col. 823 to 827.) Quoted by Chester Lloyd Jones, Proc. A. P. S. A.; 1913-14; p. 191. 14 Bulletin of the Nebraska Legislative Reference Bureau, "Legislative Proce- dure in the Forty-eight States," p. 9. 15 Statement of Mr. Scott, Chairman of Committee on Committees, Penna. House, 1913. Illinois and Kansas are notable offenders. The Illinois Voters' League strongly urges prohibition of the practice. (See Bulletin of December 20, 1914.) The rule in the Washington Senate is that such bills are not to be printed unless by special order. 30 Procedure in State Legislatures The rule that no member shall introduce a bill which he is unwilling to defend and support personally on the floor, although difficult of enforcement, is a good one and should be followed con- scientiously. 16 Nevertheless bills are often dropped in " sight un- seen." For example, a representative lately confessed that he did not remember who had handed him a bill of far-reaching effect which he had introduced, except that he believed that it had been a woman. 17 Either carelessly or through a desire to be identified with popular legislation, members introduce many duplicate measures. In the 1913 session of the Michigan Legislature, nine "blue sky" laws were introduced. 18 The same year 112 bills were introduced in duplicate in the Nebraska Legislature, and some even in triplicate, one being introduced twice by the same senator and once by a member of the House. 19 ^Naturally if there is a healthy representa- tion of two parties, both will strive to introduce bills on important subjects; but attempts to facilitate passage by introducing identical measures in both houses are more common and less easy to defend. Legislative reference bureaus have rendered important service in urging members to combine measures and in calling attention to duplicate bills. 20 The rules of California permit the committee on engrossment to substitute a bill of the other house identical with one on their own calendar, 21 and in Oregon a committee exists to pass on all bills before printing and thus avoid duplication. 22 For 16 This is Nebraska House Rule 34. 17 Indianapolis Star, March 2, 1915. The following colloquy over a bill up for final passage took place at a recent session of the Illinois Senate. Mr. Dailey: "What is the purpose of the bill?" Mr. Meeker: "I don't know; the bill w r as handed to me." Mr. Dailey: "You are merely the foster-father?" 1 Mr. Meeker: "Yes, I am the medium through which the bill was intro- duced." It may be added that the bill received a majority of the votes of those present but failed to receive the constitutional number and thus failed. (Senate Debates for 1915, p. 1130.) 18 Reply to questionnaire of Nebraska Legislative Reference Bureau. 19 Statement from the Nebraska Legislative Reference Bureau. 20 The South Dakota Legislative Reference Library reports particular suc- cess along this line. 21 Assembly Rule 9; Senate Rule 3. 22 Statement in reply to Nebraska Questionnaire, 1913. Introduction of Bills 31 the same purpose the printing committees of the Washington houses are instructed to scan all bills. 23 RESTRICTIONS UPON THE FREE INTRODUCTION OF MEASURES The increasing number of bills presented has led to discussion as to the feasibility of establishing some form of censorship upon their introduction. But as brought out by the Massachusetts com- mittee to revise legislative procedure, the duty of the censor would necessarily be more than clerical. Consequently it could not be delegated to anyone outside the legislature, although it is unlikely that any group of members could exercise any material power of selection without incurring the dislike of their colleagues and be- coming the victims of political scheming. 24 A proposal, recom- mended by a joint committee of the Massachusetts Legislature in 191 0, 25 designed to sift measures by limiting the number one member might introduce, did not meet with the favor of the two houses, inasmuch as they were unwilling to restrict their present unlimited right. Any innovation with this purpose in view is apt to run counter to the accepted belief that the channel should at all times be kept open in order that the overtures of the most humble citizen may easily attain legislative consideration. There are numerous provisions of one kind or another limiting the time in which bills may be introduced, but their purpose is rather to protect against hasty legislation than to restrict the quan- tity. In two states, however, rules have been adopted designed to decrease the number which each member may propose. Introduc- tion of bills in the Georgia House is in order but three days a week, and a member can present but one bill of a general nature each day. 26 In Illinois a member may introduce three bills a day during the first three weeks; thereafter on fuesdays only. 27 But the efficacy of these provisions is greatly weakened by the custom of granting unanimous consent to introduce bills at any time. 28 Ibid. 24 Report of the Massachusetts Committee to Revise the Rules, 1915, p. 29. 25 Ibid., p. 28. M House Rule 40. 57 House Rule 18. 28 Mr. E. D. Shurtleff, member of the Rules Committee of Illinois House, states that he has never known such consent to be refused. From California comes the latest novelty in the form of a constitutional 32 Procedure in State Legislatures PKESENT-DAY METHODS OF INTRODUCTION The procedure followed in introducing a bill varies somewhat in the different states. In a few the rules require that the old for- mality of asking for leave be carried out. 29 In others introduction by roll call of counties is still observed. 30 Under the latter procedure a member rises as his county is called and notifies the speaker that he has a bill to introduce. A page then hurries a copy to the clerk who reads the title to the house. 31 In Illinois bills are introduced upon a roll call of members. 32 The more general practice permits members to secure recognition from the presiding officer when the house is under the proper order of business, and to send the bill to the clerk who reads the title. This constitutes the. first reading. If, however, the constitution requires three readings in full, a pretense of reading the text is made. To escape the useless waste of time involved in the above procedure, several states, after the example of Congress, provide a box in which bills are deposited, 33 or have required that they be filed amendment offered in a resolution to the Assembly. Bills are to be presented to the Supreme Court before the legislature convenes, which shall render an advisory opinion as to their merits. The number which members may initiate after the session opens is greatly restricted. (Assembly Constitutional Amendment, No. 57, Feb. 3, 1913.) The effect of California's first "split session" was an increase of over one thousand bills presented. The first thirty days were largely devoted to introduc- tion of measures. (Statement from State Library to Nebraska Questionnaire, 1913.) But in 1915 the number swung back to normal. (Key to Chaptered Laws for 1915.) 29 True of Connecticut, Delaware, Iowa, Louisiana, Nebraska, and New Jersey Senate. 30 Georgia, Indiana, Kentucky and Ohio. 31 Hughes, "Guide to Parliamentary Practice in Ohio". (1913). This follows the early practice of Congress when motions for leave or resolutions of inquiry were introduced upon a call of the states. Debates of Congress, 2 Sess., 24 Cong., Col. 1341. 32 House Rule 18, and "Law Making in Illinois," pamphlet issued by Illinois Legislative Reference Bureau. 33 Maine, New Hampshire House, New York, North Carolina Senate. In 1914 New York adopted the requirement that before a bill is placed in the box it must be stamped by the clerk to show that it was presented personally by a mem- ber. This was to prevent bills from being dropped in by other persons, chiefly clerks. Introduction of Bills 33 beforehand with the speaker or clerk. 34 Thus bills receive their first reading and reference to committee one day after they have been presented to the house, the speaker being given time to select the appropriate committees. 35 Otherwise his reference is the result of a snap judgment. The reading of titles on introduction and oral reference by the presiding officer, consumes precious time. The whole order of business is gone through in the most perfunctory manner. Members pay no attention, relying upon the printed journals or calendars to learn all they want to know. And inasmuch as the printed journal of the day's proceedings appears the next morning there is no reason why introduction and reference should consume any time of the house whatever. Notice in the journal would be sufficient and, where no constitutional obstacle prevents, following the practice of Congress, could be counted as first reading. It is required by the constitutions of nine states that notice of intention to introduce a private or local bill be published, 36 and the legislative law of seven other states requires that notice be published or served. 37 In Massachusetts and South Carolina private bill legislation must be founded upon petition, 38 and thus is retained a trace of the ancient practice when all legislation was based upon petitions for redress of grievances. In this connection it has been urged that a return to the practice of initiating private measures by petition and the numbering of them in a series distinct from public bills, would prove the first step towards developing a special procedure in private and local matters. 39 This is indeed a consum- mation devoutly to be wished. Since a bill for the particular benefit of certain persons or of a special locality may prove injurious to others, the passage of such a measure involves a judicial inquiry 84 Minnesota, Pennsylvania, and Virginia. 86 New York Assembly Rule 6; Pennsylvania House Rule 10. 18 Index-Digest of State Constitutions. They are: Alabama, Arkansas, Florida, Georgia, Louisiana, Missouri, Oklahoma, Pennsylvania and Texas. North Carolina and New Jersey simply require notice before passage. 37 Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and West Virginia. Connecticut, Maine, New Hampshire and Rhode Island require publication before the beginning of the session. 38 Massachusetts Senate Rule 15, House Rule 31. Code of South Carolina (1912) H3