K 
 
 ••.> .•> 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 .NCH 
 
 CALIFORNIA 
 ARY 
 
 -ES. CALIF.
 
 STATE AND MUNICIPAL 
 
 GOVERNMENT IN THE 
 
 UNITED STATES 
 
 EVERETT KIMBALL, Ph.D. 
 
 PROFESSOR OF GOVERNMENT, SMITH COLLEGE 
 
 GINN AND COMPANY 
 
 BOSTON . NEW YORK • CHICAGO • LONDON 
 ATLANTA • DALLAS • COLUMBUS • SAN FRANCISCO 
 
 -370 O h
 
 COPYRIGHT, 1922, BY 
 EVERETT KliMBALL 
 
 ALL RIGHTS RESERVED 
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 I'RIETORS • BOSTON • U.S.A.
 
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 PREFACE 
 
 In spite of the importance and interest of international and 
 national questions of policy and in spite of the rapidly widening 
 sphere of federal legislation and administration the life of an 
 American citizen is affected more often by the agencies of local 
 government than by those of the national government. Under 
 the protection of the Federal Constitution the life and property 
 of the citizen are governed and protected by state, not federal, 
 laws. In his political capacity the citizen takes part in both 
 the federal and the local government in accordance with state 
 regulations. Acting under the state laws are the particular 
 political units in which the citizen may reside — the county, 
 ^ city, or town. To the authorities of these the citizen most fre- 
 "V quently looks for governmental support and regulation. Yet 
 r\ these local bodies are distinctly subordinate to and created by 
 the authority of the state and are supervised and regulated by it. 
 It is the purpose of this book to discuss the organization, 
 the distribution of powers and functions, and the operation of 
 these agencies of local government. Other books have dealt 
 with state government and state administration or with munici- 
 pal government and municipal administration, but this book 
 covers both state and municipal government, treating the two 
 as a single manifestation of local government. With this in 
 mind the book has been divided into five parts. In Part I the 
 federal system and the state constitutions as the fundamental 
 basis of local government are discussed. Part II deals with the 
 political system — the electorate in theory and in action, in 
 primaries, in election campaigns, and in its direct action in the 
 use of the initiative, referendum, and recall. Part III deals with 
 state government — the different organs and the functions which 
 these organs perform. State administration, which is rapidly 
 being extended both directly and through the supervisory 
 power of the state, is discussed in its various manifestations. 
 
 iii
 
 iv STATE AND MUNICIPAL GOVERNMENT 
 
 Three chapters in this part are devoted to the legal system 
 and the operation of the state courts. In Chapter XIII, The 
 Legal System of the States, I have attempted to describe and 
 define very briefly some legal principles and terms. Strictly 
 speaking, the propriety of this chapter in a book on govern- 
 ment might be questioned, but experience has shown that stu- 
 dents are both ignorant of and curious regarding the topics here 
 discussed. Part IV deals very briefly with county and town 
 government. I have deliberately reduced this discussion to its 
 lowest terms for several reasons. Not the least compelling is 
 the limitation of space, but more important than that is the 
 fact that many of the functions of the county and town are 
 performed by the state or by the city or by both, and it has 
 seemed better to study and explain these functions in the dis- 
 cussion of state or of municipal government. Again, many of 
 the officials of the county are really state officials enforcing 
 state laws. Thus, for example, the county or prosecuting at- 
 torney is fully discussed in the chapters on the organization 
 of the state courts and but briefly mentioned in the chapters 
 on town and county government. In like manner both the 
 counties and the cities are engaged in the construction and 
 upkeep of roads, but the construction of streets is treated in 
 the section on municipal government. While this organization 
 is somewhat of a departure, experience has shown that it helps 
 the student in handling the complicated body of fact involved. 
 Part V deals with municipal government. Here I have tried to 
 describe the development of municipal government, to discuss 
 the characteristics of cities and their relation to the state. In 
 this section, as in the section on county government, I have 
 been able to treat the political organization briefly, inasmuch 
 as political parties and machines, the initiative and the refer- 
 endum, have been discussed in Part II. Three chapters are 
 devoted to the different types of city government and four 
 chapters to the functions the city performs. 
 
 I cannot pretend to present anything original or novel. In 
 fact I have attempted to confine myself to an exposition of the 
 existing institutions. I have greatly profiled by and freely used 
 the treatises in these various fields, particularly those of
 
 PREFACE V 
 
 Professors Holcombe and Mathews in state government and 
 Professors Fairlie, Munro, and McBain and President Goodnow 
 in municipal government. In general I am in agreement with 
 their conclusions, and only after a fresh reading of the sources 
 and further study have I ventured to disagree. I have fre- 
 quently cited these authors in order that students might easily 
 find more extended discussions. 
 
 In dealing with forty-eight different states and with all the 
 municipalities in the United States the opportunity for error 
 and misstatement is great. I have tried to discover, if possible, 
 what is the normal institution, method, or practice and explain 
 that. Where there are sharply marked divergences, those which 
 seemed most interesting or typical have been explained, but I 
 have not attempted to record — either in the text or footnotes 
 — the peculiar practice and the particular form which an 
 institution might take in each state or city. 
 
 In addition to the authorities mentioned above I wish to ex- 
 press my grateful acknowledgments to Professor J. M. Mathews, 
 of the University of Illinois, who read the proof of Parts I, II, 
 and III, and by his valuable suggestions greatly improved my 
 text ; to my colleague. Miss Alice M. Holden, of the Smith Col- 
 lege faculty, who has read the entire manuscript and the proof 
 and prepared the index; and to Miss Cynthia W. Eastwood, 
 who has aided in the preparation of the text, assisted in the 
 reading of the proof, and verified the references and quotations. 
 But for all statements of fact and opinion I am responsible. 
 
 EVERETT KIMBALL
 
 CONTENTS 
 
 PART I. THE CONSTITUTIONAL BASIS OF STATE 
 GOVERNMENT 
 
 PAGE 
 CHAPTER I. THE NATURE OF THE AMERICAN STATE ... 3 
 
 The political importance of the states. Variations of states. Simi- 
 larities of states. The states bodies politic. Federalism. Prohibi- 
 tions upon the states. Obligations imposed upon the states. Powers 
 reserved to the states. The police power. Federal supremacy. 
 
 CHAPTER II. STATE CONSTITUTIONS 18 
 
 Importance and origin of state constitutions. Chief provisions 
 of early state constitutions. Fundamental principles of state con- 
 stitutions. Classification of state constitutions. Contents of a 
 typical state constitution. Constitutional amendment and revision. 
 
 PART II. THE POLITICAL SYSTEM OF THE STATES 
 
 CHAPTER III. THE ORGANIZATION OF THE ELECTORATE . 39 
 
 Definition of the electorate. Original restrictions on the suffrage. 
 Present qualifications for the suffrage. Disqualifications. Election 
 districts. Definitions of a political party. Functions of a party. 
 Organization of a party. Party conventions. Discussion of the 
 convention system. The machine. Tammany Hall. Why party 
 organizations sometimes become machines. 
 
 CHAPTER IV. THE ELECTORATE IN ACTION 61 
 
 Registration. Functions of the primaries. Organization of the 
 primaries. Procedure in primaries. Party tests. Merits and faults 
 of the primary system. The direct primary. Open and closed 
 primaries. Nonpartisan primaries. The effect of the direct primary. 
 
 CHAPTER V. THE CAMPAIGN 77 
 
 Definition of a political campaign. Management of the campaign. 
 Campaign methods. Use of money in campaigns. Sources of 
 party funds. Regulation of the use of money in campaigns. 
 Election laws. The ballot. Ballot reform. The short ballot. Absent 
 voting. Preferential voting. Proportional representation. 
 
 vi
 
 CONTENTS vii 
 
 PAGE 
 
 CHAPTER VI. THE INITIATIVE, REFERENDUM, AND RECALL 105 
 
 Definitions and distinctions. Common features of the initiative. 
 The referendum. The effect of the referendum upon the electo- 
 rate, political parties, the machine, the ballot. The recall. 
 
 PART III. ORGANIZATION AND FUNCTIONS OF 
 STATE GOVERNMENT 
 
 CHAPTER VII. THE STATE GOVERNOR 131 
 
 The executive department. The provincial governor. The state 
 governor: election, term, removal. The powers of the gover- 
 nor. Civil-service laws. Martial law. The conference of gover- 
 nors. The strong governor. "The new role of governor." 
 
 CHAPTER VIII. STATE ADMINISTRATION I49 
 
 Characteristics and composition of the executive departments. 
 The relation of the heads of departments to the governor. State 
 boards and commissions. Classification of boards according to 
 services and powers. Internal organization of state boards. 
 Types of departmental organizations. Relation of commissions 
 to other departments. Reorganization of state administrative 
 systems. 
 
 CHAPTER IX. FUNCTIONS OF STATE ADMINISTRATION . . 168 
 The enforcement of law. Difficulties. Instruments. The adminis- 
 tration of education. State authorities. Compulsory education. 
 Free textbooks. Normal schools. State universities and libraries. 
 State supervision of charities. Correctional institutions. Public 
 health. Labor-law administration. Agriculture. Regulation of 
 corporations. Public works. Finance and taxation. Miscellaneous. 
 
 CHAPTER X. THE STATE LEGISLATURE i94 
 
 The importance of the state legislature. Omnipotence of the 
 state legislature. Limitations upon state legislatures in the Fed- 
 eral Constitution. Limitations in state constitutions. Compo- 
 sition of state legislatures. Legislative apportionment. 
 
 CHAPTER XL THE LEGISLATURE AT WORK 207 
 
 The organization and character of the state legislature. The 
 officers. Committee system. The legislative problem. The lobby. 
 Bill-Drafting Bureau. Legislative procedure. Financial legisla- 
 tion. The influence of the organization in legislative procedure. 
 The perversion of legislative action. The legislature and consti- 
 tutional amendments. The effect of the initiative and referen- 
 dum on the legislature. 
 
 CHAPTER XII. STATE FINANCE 225 
 
 Importance of state finance. Sources of state revenue. Kinds 
 of taxation. Constitutional restrictions on state taxing power. 
 State expenditures. Financial legislation. State budget systems. 
 The state debt.
 
 viii STATE AND MUNICIPAL GOVERNMENT 
 
 PAGE 
 
 CHAPTER XIII. THE LEGAL SYSTEM OF THE STATES ... 238 
 Sources of state law. Statutory law. International law. Common 
 law. Equity. Rights of persons and property. Criminal law. 
 Torts. Contracts. Domestic relations. Partnerships and corpora- 
 tions. Remedies. 
 
 CHAPTER XIV. THE JUDICIAL SYSTEM OF THE STATES . , 268 
 Importance and functions of state courts. Justices of peace. 
 Intermediate courts. Probate courts. Appellate courts. Special 
 courts. The relation of the state courts to the federal courts. 
 The structure of the courts. Choice and term of judges. Removal. 
 Recall of judicial decisions. Other court officers. The jury. 
 
 CHAPTER XV. THE PROCEDURE OF THE COURTS .... 291 
 
 Criminal cases. Civil cases, common-law procedure. Equity 
 procedure. Appeals. Power of the courts to declare statutes 
 unconstitutional. Judicial control of administration. The courts 
 as agents of self-government. 
 
 PART IV. COUNTY AND TOWN GOVERNMENT 
 
 CHAPTER XVI. THE EVOLUTION OF LOCAL GOVERNMENT IN 
 THE UNITED ST.-^TES 309 
 
 The English basis of local government in the United States. Local 
 government in America. The county type. The Southern parish. 
 The New England town system. The mixed system. Extension 
 of systems of local government. Recent developments in local 
 government. Extent of local autonomy in the United States. 
 
 CHAPTER XVII. THE COUNTY 317 
 
 General characteristics. County powers and functions. Gov- 
 ernment of the county. The county board. Administration of 
 justice. Other county officers. 
 
 CHAPTER XVIII. MINOR DIVISIONS OF LOCAL GOVERNMENT 333 
 The New England town. The town mcetins. Town officers. 
 Townships in the central states. County districts in the South 
 and West. Villages and boroughs. 
 
 PART V. MUNICIPAL GOVERNMENT 
 
 CHAPTER XIX. CHARACTERISTICS OF ATNIERICAN CITIES . 34 S 
 Definition of a city. Reasons for existence of cities. Area. 
 Population. Sources of the increase of population. Charac- 
 teristics of urban population. The moral standards of the city. 
 Humanitarian movements in cities. 
 
 CHAPTER XX. THE DEVELOPMENT OF MUNICIPAL GOVERN- 
 
 MK.\T IN THE UNITED STATES 3S9 
 
 The colonial period. Municipal development from 1775 to 1920.
 
 CONTENTS ix 
 
 PAGE 
 
 CHAPTER XXI. THE RELATION OF THE CITY TO THE STATE 374 
 
 The city corporation. Legal position of the city in the state. 
 The city charter. Powers of the city. Liabilities of cities. Attitude 
 of the legislature toward cities. The optional charter system. 
 Regulated special legislation. Municipal home rule. The politi- 
 cal relation of the city to the state. Fields in which state con- 
 trol is properly exercised. Methods of state control. 
 
 CHAPTER XXII. THE CITY AS A POLITICAL UNIT .... 393 
 
 The municipal electorate. The municipal electorate in action. 
 Municipal parties. Fusion. The initiative, referendum, and recall. 
 
 CHAPTER XXIII. TYPES OF MUNICIPAL ORGANIZATION-THE 
 MAYOR-AND-COUNCIL TYPE 409 
 
 The city council. Development of the office of mayor. Elec- 
 tion, term, qualifications. Characteristics of American mayors. 
 Legislative powers of the mayor. Administrative powers. Mis- 
 cellaneous powers. Present position of the mayor. 
 
 CHAPTER XXIV. TYPES OF MUNICIP.^L ORGANIZATION- 
 CITY GOVERNMENT BY A COMMISSIOxN 430 
 
 The principles of the commission form of government. Origin 
 and spread of commission government. Methods by which cities 
 may adopt the commission type of government. Machinery of 
 city government by commission. Popular control of the com- 
 mission. Merits and faults of the commission form of govern- 
 ment. Results of city government by commission. 
 
 CHAPTER XXV. TYPES OF MUNICIPAL GOVERNMENT-THE 
 CITY-MANAGER 445 
 
 Definition. Development and spread of the city-manager move- 
 ment. Method of adoption. The Dayton city-manager plan. 
 The Ashtabula plan. Results of the city-manager plan. 
 
 CHAPTER XXVI. ADMINISTRATIVE DEPARTMENTS, OFFI- 
 CIALS AND EMPLOYEES 454 
 
 The position of administrative departments. Development of 
 administrative departments. Control of departments by council. 
 Advantage of council committees as administrative bodies. 
 Number of administrative departments. Choice and qualifica- 
 tions of heads of departments. Terms. Organization and cor- 
 relation of administrative departments. Subordinate officials and 
 employees. Politics and administration. Methods of improve- 
 ment. Selection of municipal officials and employees. Principles 
 of municipal civil service. Labor unions and city employees. 
 
 CHAPTER XXVII. MUNICIPAL ADMINISTR.\TION. SAFETY . 470 
 
 Functions and duties of the police. European and American 
 conceptions of police functions. Difliculties of American police 
 administration. Development of the police in the United States.
 
 X STATE AND MUNICIPAL GOVERNMENT 
 
 PAGE 
 
 State versus local control of the police. Organization of the police 
 department. Expenditure on the police department. Fire losses 
 in the United States. Fire prevention and protection. Organi- 
 zation of the fire department. Cost of the fire department. 
 Development of city organization for the preservation of health. 
 Legal basis of sanitary police powers. Organization of the health 
 department. Relations of the health department to other depart- 
 ments. Functions of the board of health. Expenditure in health 
 conservation. The building department. 
 
 CHAPTER XXVIII. MUXICIP.\L ADMIXISTRATIOX. COX- 
 VEXIEXCE 491 
 
 City planning. Composition and powers of planning board. 
 The basis of a city plan. Difficulties of city planning. Cost of 
 city planning. Importance of city streets. The street depart- 
 ment in city government. Cost of streets. Special problems 
 connected with streets. Methods of street construction and pave- 
 ments. Importance of water supply. Requisites of water sup- 
 ply. Sources of water supply. Water purification. Public and 
 private supplies of water. Water departments. Water finance. 
 Importance of the disposal of wastes. Classification of the city's 
 wastes. Sewage. Definition of public utilities. Important ele- 
 ments in a franchise. Types of public utilities. Relative merits of 
 municipal and private operation of public utilities. 
 
 CHAPTER XXIX. MUNICIPAL ADMINISTRATION. EDUCATION, 
 CHARITIES, AND CORRECTIONS 522 
 
 Development of education in the United States. Organization of 
 the school department. The school plant. Functions of the 
 school system. School finance. Poor relief. Hospitals. Care 
 of children. The department of charities. Corrections. 
 
 CHAPTER XXX. MUNICIPAL ADMINISTRATION. MUNICIPAL 
 FIN.ANCE 533 
 
 Importance of municipal finance. Sources of municipal revenue. 
 Rate of taxation. Collection of taxes. Municipal expenditures 
 and appropriations. Methods of controlling appropriations and 
 disbursements. Municipal budget. Accounting. Debts. Debt 
 limits. Futility of legislative restrictions. Payment of municipal 
 debts. 
 
 INDEX S5I
 
 STATE AND MUNICIPAL 
 GOVERNMENT 
 
 PART I 
 
 THE CONSTITUTIONAL BASIS OF STATE 
 GOVERNMENT
 
 CHAPTER I 
 
 THE NATURE OF THE AMERICAN STATE 
 
 The United States is composed of forty-eight states, yet 
 national questions rather than questions of state policy attract 
 the greater attention. Foreign affairs, the tariff, the control 
 of interstate commerce, and the marked tendency to extend 
 federal authority in every field — a tendency which began 
 after the Civil War and has increased with portentous rapidity 
 — have led to concentration upon the policy and politics of the 
 federal government at the expense of state and local government. 
 
 Yet it is well to remember that without the states the The 
 peculiar federal system of the United States could not exist, importance 
 The Constitution was ratified by the people acting by states, o"he states 
 and it can be amended not by a popular referendum but only 
 by the consent of three fourths of the states. Thus the people 
 in thirteen states — perhaps a pitiful minority of the whole 
 population of the United States — can prevent the adoption of 
 an amendment ardently desired by the vast majority of the 
 people. The presidential electors are not chosen strictly on 
 the basis of population, but from the states; and each state, 
 whether large or small, has an equal representation in the 
 Senate. The political unit of the United States is the state — 
 with but few restrictions the states prescribe the qualifications 
 for suffrage; the national elections are conducted under state 
 laws by state officials. Thus, without the political action of 
 the states the national government would run down and stop. 
 
 As will be seen, the Federal Constitution did not attempt Recognition 
 to provide an all-inclusive frame of government to cover all portance of 
 the activities of its citizens. The framers of the Constitution ^*^^^/^^." 
 
 ernment in 
 
 believed that the greater part of the life of a citizen should lie the Federal 
 
 1 r 1 1 1 o 111 - J Constitu- 
 
 beyond federal control. State and local government existed tion 
 before the Federal Constitution was framed and were recog- 
 nized and protected by it. It was felt that self-government 
 
 3
 
 4 STATE AND MUNICIPAL GOVERNMENT 
 
 was more assured in the hands of the states, that the govern- 
 ment of the state would be more immediately subject to the 
 control of its citizens than would the federal government, 
 which, in 1787, seemed remote. Therefore the Federal Con- 
 stitution not merely recognized and utilized the state govern- 
 ments but established limits beyond which Congress could not 
 encroach upon the field of state control, and gave guarantees 
 to state rights and state equality. State, not national, govern- 
 ment is more important in the daily life of citizens, and state 
 government is all-important in determining the powers and 
 responsibilities of the smaller units of local government. 
 Variation of The forty-eight states present bewildering variations. In 
 area^and ^^ea they Vary from Texas with 265,896 square miles to Rhode 
 population Island with 1248. While the largest states have territories of 
 greater extent than the French Republic or the former German 
 Empire, the smallest state is not larger than many of the 
 counties in the larger states. New York, with a population 
 of over 10,000,000, has more than one hundred and twenty- 
 five times as many people as Nevada, the least populous state, 
 yet New York and Nevada have equal representations in the 
 Senate. The population of New York is three times as great 
 as that of Denmark or Switzerland and twice as great as that 
 of Sweden, which are independent states. Nevada, the smallest 
 state, with its population of 77,407, is outranked in population 
 by more than eighty cities in the United States. The distribu- 
 tion of this population varies in the different states. In Rhode 
 Island there are 566.4 persons to the square mile; in Massa- 
 chusetts, 479.2; in New Jersey, 420.0; at the other extreme, 
 Nevada has .7 to the square mile, Wyoming 2.0, Arizona 2.9, 
 while New York, with her great population and great area, 
 has 217.9. This mass of people is by no means homogeneous, 
 as may be seen from the census. In the United States as a 
 whole the percentage of foreign born is 14.5. It varies in 
 the states from 29.2 per cent in Rhode Island, 28.3 per cent 
 in Massachusetts, and 27.4 per cent in New York to only 
 .4 per cent in North Carolina and .9 per cent in Georgia, 
 Kentucky, and Mississippi. In llie states just enumerated, as 
 well as in the other Southern states, the homogeneity of the
 
 THE NATURE OF THE AMERICAN STATE 5 
 
 population is complicated by the question of color. Thus, in 
 South Carolina there are approximately 865,000 colored to 
 819,000 whites, and in Mississippi there are 935,000 colored 
 to 854,000 whites. 
 
 In climate and resources the states present marked dis- ciimate and 
 similarities and variations. Thus, Maine in winter is literally 
 as cold as Greenland, while in summer it has the temperature 
 of France. Florida has the temperature of northern Africa, 
 and in the northern states of the Mississippi Valley the tem- 
 perature varies in winter from that of Greenland to one which 
 is similar to southern France in the summer. These differences 
 and dissimilarities in climate give varied natural resources, 
 which in turn makes for a varied industrial life, and this in 
 its turn affects the political life of the different states. Thus, 
 Rhode Island, INIassachusetts, Connecticut, New York, Penn- 
 sylvania, and Illinois rank high as manufacturing states and 
 face problems inseparably connected with the massing of 
 large laboring populations in small areas. Minnesota and the 
 Dakotas, Kansas and Nebraska, are the great grain-growing 
 states with a widely distributed population which is little 
 affected by the problems of the manufacturing states. In the 
 South the peculiar crops, cotton and tobacco, coupled with the 
 presence of a large colored population present problems far 
 different from those of the Northern states. The states afford 
 a similar contrast in wealth : New York has an estimated 
 wealth of $25,000,000,000, Pennsylvania and Illinois $15,000,- 
 000,000 each, California $8,000,000,000, Iowa $7,000,000,000, 
 and Massachusetts $6,000,000,000 ; while at the other extreme 
 stands Nevada with a total wealth of about $457,000,000. 
 
 In spite of these conspicuous variations the states present similarities 
 
 f\-f C ♦" 1 1" P S 
 
 almost equally marked similarities. A traveler is not con- 
 scious of the boundary lines, for no customhouse marks them. 
 Throughout the country there is one common language, not 
 merely officially but actually. In spite of minor differences 
 there is a common system of education, extending from the 
 primary schools to state universities. Nowhere is there an 
 established church. Everywhere there is freedom of religious 
 worship and a clear separation and a jealous demand that no
 
 6 STATE AND MUNICIPAL GOVERNMENT 
 
 religion, church, or denomination should attempt to control 
 the political action of the state. In all the states there is a 
 similar system of state government. All state constitutions, in 
 spite of numerous obvious though superficial variations, re- 
 semble the Federal Constitution in the jealous separation of the 
 departments of government. All the states alike are subject 
 to the supremacy of the Federal Constitution, with the rights 
 which it guarantees to all citizens of the United States. Fed- 
 eral coinage, federal laws, and federal jurisdiction are found 
 in every state. Constitutional amendments, such as the 
 Eighteenth and Nineteenth Amendments, may force an un- 
 willing state to adopt prohibition or to extend the suffrage to 
 women. Through the power to tax and to control interstate 
 commerce the federal government is more and more imposing 
 upon the states a common standard in industry and even in 
 morals. Thus the pure-food law, the federal child-labor law, 
 the law prohibiting the transportation of lottery tickets, and 
 the white-slave law reveal the extension of federal activities. 
 American, Moreover, apart from the official and governmental under- 
 nationaiity takings, there are many tendencies toward a common life. 
 The recent movement for Americanization emphasizes the 
 commonwealth of the United States rather than the individual 
 peculiarities of the various states. National industries spread 
 their products throughout the whole country, and the same 
 articles of use and apparel may be found in Maine and Cali- 
 fornia. National magazines and papers spread a common 
 standard of culture and similar ideas from Washington to 
 Florida. Throughout the country there are the same national 
 political parties, national platforms, and national aims. 
 Throughout the Union there is a single nationality. I'he 
 I'Vderal Constitution was adopted before the variations of 
 different states had developed individual nationalities. The 
 advantages of union and the protection of the federal govern- 
 ment were recognized, and in spite of the peculiarities of dif- 
 ferent states a spirit of unity developed which was strong 
 enough to survive the shock of (he Civil War and which 
 subsequent experiences have strengthened.
 
 THE NATURE OF THE AMERICAN STATE 7 
 
 The States and the Nation 
 
 The American states are bodies politic. A good definition of 
 a body politic is found in the preamble to the Massachusetts 
 constitution in these words: 
 
 The body politic is formed by a voluntary association of indi- The state 
 viduals : it is a social compact, by which the whole people covenants poi/tlc 
 with each citizen, and each citizen with the whole people, that all shall 
 be governed by certain laws for the common good. It is the duty of 
 the people, therefore, in framing a constitution of government, to pro- 
 vide for an equitable mode of making laws, as well as for an im- 
 partial interpretation and a faithful execution of them ; that every 
 man may, at all times, find his security in them. 
 
 The purposes for which a body politic exists are well set 
 forth in the preamble of the Constitution of the United States : 
 
 We the people of the United States, in order to form a more perfect 
 union, establish justice, insure domestic tranquillity, provide for the 
 common defence, promote the general welfare, and secure the bless- 
 ings of liberty to ourselves and our posterity . . . 
 
 In other words a body politic exists for the purpose of 
 government, and its powers may extend to complete control 
 over the lives, liberty, and property of its people. Not every 
 body politic may possess this complete control ; the American, 
 state does not, for, as will be seen, the Constitution sets cer- 
 tain limits upon the power of the state in dealing with the 
 life, liberty, and property of any of its citizens, rt'hus the 
 Fourteenth Amendment declares that no state shall ''deprive 
 any person of life, liberty, or property, without due process of 
 law."\ While the American states may thus not possess the 
 unliniited authority of sovereign bodies politic, no group of 
 people, except a body politic, possesses rightfully any such 
 power. Bodies politic are characterized by the kind rather 
 than by the degree of power which they hold. They may have 
 this power to an unlimited extent and thus be completely 
 sovereign and independent ; on the other hand, they may be 
 subject to certain limitations which restrict their independence 
 and limit the exercise of their power.
 
 8 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 The 
 
 American 
 states not 
 sovereign 
 bodies 
 politic 
 
 Federalism 
 
 Distribu- 
 tion of 
 powers. 
 Powers 
 granted to 
 the national 
 government 
 
 The American states are not sovereign, independent states. 
 Their independence was sacrificed at their ratification of the 
 Constitution, and in like manner their sovereignty was re- 
 stricted. Until the Civil War this point was disputed. Politi- 
 cal theorists and statesmen took different sides and argued 
 with equal plausibility that the United States was sovereign 
 or that the United States was composed of a group of sovereign 
 states which possessed all political power not surrendered by 
 the express words of the Federal Constitution, and that this 
 power included the right at any time to secede from the 
 Union. The appeal to arms decided the issue. Since the 
 Civil War no one can question that the people of the United 
 States, and not the states nor the people of any state, possess 
 the ultimate sovereignty. In recent times this has been strik- 
 ingly illustrated by the passage of the Eighteenth and Nine- 
 teenth Amendments to the Constitution, which drew upon the 
 powers reserved to the states or the people and enforced upon 
 unwilling states the prohibition of the sale or manufacture of 
 alcoholic beverages and the extension of the suffrage to women. 
 
 The Constitution of the United States created a federal 
 state. It did not in itself provide a scheme of government to 
 control all the relations of life; it did create a body politic, 
 partly national and partly local. The national part is to be 
 found in the federal government, the local part in the states. 
 What the Constitution does is to divide the totality of the 
 powers of government between the federal government and the 
 states. This division, however, is not made upon the same 
 basis. The powers of the federal government are granted to it 
 by the Constitution. The powers of the states are inherent; 
 they receive no new powers from the Constitution ; their rights 
 are protected, their powers reserved to them. 
 
 As has been pointed out,' the powers granted to the federal 
 government are chiefly political. The prohibitions upon the 
 federal government are largely in the nature of preventing it 
 from interfering in the realm of domestic affairs. One great 
 
 ' F. J. Stimson, The American Conslitulion, passim; also Federal and 
 State Constitutions of the United Slates, pp. 106-118. Eventt Kimball, 
 The National (lovernmcnt of the United States, pj). 50-55.
 
 THE NATURE OF THE AMERICAN STATE 9 
 
 exception, however, is found in the Fourteenth Amendment, by 
 which the federal government is made the judicial censor of 
 state legislation lest such might deprive the citizens of the 
 United States of ''life, liberty, or property, without due 
 process of law." 
 
 The prohibitions upon the states are of two sorts. In the Prohibitions 
 first place, certain definite prohibitions are laid upon them, states:* 
 These are found in Article I, Sect. x. In general they prohibit 
 the states from exercising powers which might interfere with 
 those already granted to the federal government, and they may 
 be roughly classified under several heads : 
 
 1. Foreign and military affairs. The states are prohibited (i) Foreign 
 from entering into treaties, alliances, and confederations, and no tao'™ffairs 
 state may enter into an agreement or compact with any other 
 
 state or with a foreign state unless Congress assents. States 
 may not grant letters of marque or reprisal, keep troops or ships 
 in time of peace, or engage in war unless actually invaded. 
 
 2. Prohibitions upon 'State control over the monetary sys- (2) Mone- 
 tem. No state may coin money or make anything but gold or ^ ^^^ *™ 
 silver legal tender. In addition, a state may not emit bills of 
 
 credit. A bill of credit "must be issued by a state on the 
 faith of the state and designed to circulate as money. It must 
 be a paper which circulates on the credit of the state ; and so 
 received and used in the ordinary business of life."^ However, 
 a state may charter banks and trust companies and give to 
 them the right of issuing money, but these state bank notes 
 are not considered bills of credit. In 1866 Congress effectually 
 prevented the issuance of such notes by levying a tax of 10 per 
 cent upon all bank notes issued by banks other than the 
 national banks chartered by the United States. 
 
 3. Prohibitions upon taxation. With the intention of pro- (3) Taxation 
 tecting Congress in its power to regulate all foreign and domes- 
 tic commerce, states are prohibited from levying import or 
 
 export duties. States still possess the power to tax property 
 within their jurisdiction. Very early the question arose as to 
 when an article imported into a state ceased to be under 
 the protection of the commerce clause and became a part of 
 
 ^ Craig V. Missouri, 4 Peters, 410, 431, 432.
 
 10 STATE AND MUNICIPAL GOVERNIMENT 
 
 the general property of the state. In 1827 Chief Justice 
 Marshall held: 
 
 It is sufficient for the present to say, generally, that when the 
 importer has so acted upon the thing imported that it has become 
 incorporated and mixed up with the mass of property in the coun- 
 try, it has, perhaps, lost its distinctive character as an import, and 
 has become subject to the taxing power of the state ; but while re- 
 maining the property of the importer,' in his warehouse, in the 
 original form or package in which it was imported, a tax upon it 
 is too plainly a duty upon imports to escape the prohibition in the 
 Constitution.^ 
 
 This very seriously limits not merely the power of the state 
 
 to levy taxes but also to pass laws under the police power 
 
 regulating the health or morals of its citizens. For the 
 
 purpose of its inspection laws, however, a state is allowed to 
 
 levy fees, the net proceeds of which shall be for the use of 
 
 the treasury of the United States. States, furthermore, are 
 
 forbidden to lay any duty on tonnage ; that is, upon the entire 
 
 internal capacity or contents of a vessel, expressed in tons of 
 
 one hundred cubic feet each. States may tax ships of their 
 
 citizens as property, valued as such, but they may not tax 
 
 ships as instruments of commerce." 
 
 [Taxation of Although not expressed in the Constitution, states are pro- 
 
 of^he'"^" ^ hibited from taxing the instruments of the national govern- 
 
 ^^o'vemm ti ^^^*- ^^ ^'J^'^ ''' ^'^^V ^^ would interfere with their efficient use. 
 
 The earlier doctrine restrained the states from levying taxes 
 
 of any sort upon such federal instruments since Marshall 
 
 held that the power to tax was the power to destroy. But 
 
 in 1869, in National Bank v. Commonwealth;'^ the modern rule 
 
 permitting taxes which do not interfere with the functions of 
 
 the instruments was established. 
 
 (4) Con- 4. Property is furthermore protected against state action 
 
 '**^ ^ by the injunction that no state shall pass any law impairing 
 
 the obligation of contracts. A contract is extensively defined 
 
 by the courts; briefly, it means an agreement enforceable at 
 
 ^ Brown v. Maryland, 12 Wheat. 410, 441-442. 
 'Stale Tonnage Tax Cases, 12 Wall. 204. 
 •■'9 Wall. 3:ii.
 
 THE NATURE OF THE AMERICAN STATE ii 
 
 law. In 1 8 19 Chief Justice ISIarshall, in the Dartmouth Col- 
 lege case, held that a charter granted by a state was in the 
 nature of a contract protected by this clause. This, appar- 
 ently, put beyond the power of the state legislature the modi- 
 fication of the charters and grants which earlier legislatures 
 had made. The states took prompt action, and in most of 
 their constitutions is found a provision declaring illegal any 
 charter or grant which does not contain the express right of 
 the state to modify or annul such grants. Moreover, the courts 
 have held that charters and grants, like all other private prop- 
 erty, may be acquired by the states provided compensation 
 is given. It has been held, furthermore, that charters and 
 grants are subject to the police power of the states, 
 
 5. The personal rights of the citizens of a state are pro- (5) Personal 
 tected against state legislation by certain constitutional pro- 
 hibitions. A state may not grant a title of nobility; it may 
 not pass a bill of attainder ; it may not pass an ex post facto 
 law. A bill of attainder is a legislative act which inflicts pun- 
 ishment without a judicial trial. An ex post facto law is not 
 a retroactive law, but is one which makes an act already 
 performed criminal, or which increases the penalty for a crime 
 or alters the procedure to the disadvantage of the accused. 
 
 By far the most important limitations upon state authority The 
 are found in the Fourteenth Amendment. ''No State shall Amendment 
 make or enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States; nor shall any 
 State deprive any person of life, liberty, or property, without 
 due process of law ; nor deny to any person within its juris- 
 diction the equal protection of the laws." This amendment 
 was designed to protect the newly emancipated slaves, and in 
 the early cases under it the court held strictly to that intent. 
 Later interpretations, however, have extended it to all classes 
 of citizens and persons, including corporations. 
 
 The courts have extensively interpreted the words ''life," Life, 
 "liberty," and "property." The word 'liberty" has come to propS'y a" 
 mean the freedom of an individual to do what he desires within j,°y ^'jfj'^^^'^ 
 the limits of a law properly passed and properly enforced ; courts 
 within these limits all persons are free alike from private or
 
 12 STATE AND MUNICIPAL GOVERNMENT 
 
 governmental interference. Liberty means freedom of contract, 
 the right to work, the right to acquire property. Property 
 also has been interpreted to include not merely tangible but 
 intangible property. Due process of law is never completely 
 defined. It means what the judge thinks is just and equitable 
 under the circumstances, viewed in the light of previous deci- 
 sions.^ Equal protection of the laws does not require that all 
 persons and things should be treated alike. It allows the state 
 legislature to make classifications and distinctions provided 
 such classifications and distinctions are based upon fair and 
 reasonable grounds and do not show unjust discriminations. 
 Privileges The Fourteenth Amendment also prevents the states from 
 nitie'sof"" abridging the privileges and immunities of the citizens of the 
 state^citi- United States. What these privileges and immunities are 
 zens as in- has never been inclusively defined by the courts, but in the 
 
 terpreted by j j i 
 
 the courts Slaughter House Cases- they have enumerated some of them 
 as follows : 
 
 . . . We venture to suggest some which owe their existence to the 
 Federal Government, its national character, its Constitution, or its 
 laws. One of these is well described in the case of Crandall v. 
 Nevada, 6 Wall. 36. It is said to be the right of the citizen of this 
 great country, protected by implied guaranties of its Constitution, 
 "to come to the seat of government to assert any claim he may 
 have upon that government, to transact any business he may have 
 with it, to seek its protection, to share its offices, to engage in ad- 
 ministering its functions. He has the right of free access to its 
 seaports, through which all operations of foreign commerce are con- 
 ducted, to the sub-treasuries, land offices, and courts of justice in 
 the several States." . . . 
 
 Another privilege of a citizen of the United States is to demand 
 the care and protection of the Federal Government over his life, 
 liberty and property when on the high seas or within the jurisdic- 
 tion of a foreign government. Of this there can be no doubt, nor 
 that the right depends upon his character as a citizen of the United 
 States. The right to peaceably assemble and petition for redress of 
 grievances, the privilege of the writ of habeas corpus, are rights of 
 the citizen guarantied by the Federal Constitution. The right to use 
 
 ' For a brief description of this phrase see Beard, American Government 
 and Politics, pp. 439, 441. - lO Wall. 36, 70-80.
 
 THE NATURE OF THE AMERICAN STATE 13 
 
 the navigable waters of the United States, however they may pene- 
 trate the territory of the several States, and all rights secured to our 
 citizens by treaties with foreign nations, are dependent upon citizen- 
 ship of the United States, and not citizenship of a State. One of 
 these privileges is conferred by the very article under consideration. 
 It is that a citizen of the United States can, of his own volition, 
 become a citizen of any State of the Union by a bona fide residence 
 therein, with the same rights as other citizens of that State. To 
 these may be added the rights secured by the thirteenth and fif- 
 teenth articles of amendment, and by the other clause of the four- 
 teenth, next to be considered. . . . 
 
 The Constitution also imposes certain obligations upon the obligations 
 states in dealing with each other. ''Full faith and credit shall i^eTtates" 
 be given in each State to the public acts, records, and judicial '^^^^^'^^^ 
 proceedings of every other State." ^ This means, in a civil credit" 
 
 , , , - , , • • 1 ^ clause (i) in 
 
 case, that when the courts of one state have given judgment judgments 
 such judgment will be recognized and enforced by the courts 
 of every other state without a new trial. It means, moreover, 
 that contracts legally entered into in one state are binding 
 and enforceable in the courts of another. 
 
 In the matter of divorce this clause has not been altogether (2)in divorce 
 satisfactory. By this clause a state is required to recognize a 
 divorce granted in any other state even for reasons for which 
 the laws of the first state would not allow a divorce. The only 
 restriction which the courts have upheld is that the state grant- 
 ing the divorce should have jurisdiction over the parties ; that 
 is, that the party should have a bona-fide residence within the 
 state and that proper notice of the suit should be given. 
 
 The Constitution provides for the surrender of persons (3) in extra- 
 charged with treason, felony, or other crimes upon the demand 
 of the authorities of the state where the crime was committed.^ 
 While in its form this obligation is mandatory, actually it is 
 discretionary with the governor of the state whether or not the 
 extradition shall be granted.'' 
 
 iThe Constitution of the United States, Article IV, Sect. i. 
 
 -Ibid. Sect, ii, clause 2. 
 
 3 See W. W. Willoughby, The Constitutional Law of the United States, 
 Vol. I, pp. 222-224. C. A. Beard, Readings in American Government and 
 Politics, p. 148, gives examples of extradition proceedings.
 
 14 STATE AND MUNICIPAL GOVERNMENT 
 
 states A second limitation upon the powers of the states is found 
 
 delegation in the delegation of certain powers to the federal government.^ 
 °ller7i^^^° Some of these powers are the exclusive prerogative of the fed- 
 government erai government, and the states are prohibited in their exer- 
 cise ; for example, the war power, the treaty-making power, 
 and the power to regulate commerce, both interstate and for- 
 eign. (Other powers indirectly control the social and personal 
 relations of the citizens of the states. Thus, as has been men- 
 tioned, certain laws which have been passed under the power 
 granted to the federal government to levy taxes and to regu- 
 late commerce have effectually prevented state action of one 
 sort or compelled state action of another. The power given 
 to the federal government to regulate post offices and post 
 roads has been extended so that, by the fraud orders, the 
 citizens of the states are protected by federal rather than state 
 laws against illegitimate financial operations, and in war time 
 a quasi censorship was established over the press. The taxing 
 power granted to the federal government may be used directly 
 to prevent states from allowing certain kinds of finance or 
 industry, as was shown in the lo per cent tax upon notes 
 issued by state banks and the taxes levied upon matches made 
 from white phosphorus, and in order to enforce the federal 
 conception of child labor, not that of the states. Indirectly, the 
 federal taxing power, operating upon the same sources of 
 revenue as the states, may practically compel the states to seek 
 other systems and different methods of finance. 
 Powers All other powers of a body politic are reserved to the states 
 
 the^states" ^^ ^^ the people. The general characteristic of these powers 
 so reserved is that they deal with the social and personal 
 rights of the citizens. The federal government not only is 
 not granted such powers, but by express prohibitions is pre- 
 vented from entering this field. Article I, Sect, ix, of ths 
 Constitution enumerates the express prohibitions which the 
 framers of the original Constitution thought adequate. These 
 are extended and made more explicit by the first ten amend- 
 ments — the so-called federal bill of rights. Freedom of religion, 
 
 ' This is concisely treated in A. N. Hoicombc, State Government in the 
 United States, pp. 12-14.
 
 THE NATURE OF THE AMERICAN STATE 15 
 
 speech, press, assembly, petition, and the right to bear arms 
 are protected against federal action. Excessive bail and cruel 
 punishments are prohibited. The right of jury trial with 
 the privilege of counsel and witnesses is guaranteed, and the 
 writ of habeas corpus may not be suspended except in case 
 of rebellion or invasion. Congress may pass no bill of at- 
 tainder or ex post facto law, grant no title of nobility, levy 
 no export duty, give no preference to the exports of one state 
 over those of another, nor levy any direct tax except an income 
 tax unless apportioned according to the population. By the 
 Eleventh Amendment the states are protected from suits 
 begun by citizens of another state or of foreign states. 
 
 In one field, however, the states maintain, in theory at least. The police 
 their full and unrestricted power. This is in the exercise of ^°^ ^ 
 the police power. No adequate and comprehensive definition 
 Has been made of this power. The Supreme Court has said 
 that it was ''nothing more nor less than the powers of govern- 
 ment inherent in every sovereignty . . . that is to say, the 
 power to govern men and things."^ Again, the court has 
 defined the police power as the right of the states to make laws 
 which "relate to the safety, health, morals, and general wel- 
 fare of the public."- Actually, there are fundamental limita- 
 tions upon the free exercise of this power by the states. In 
 the first place, the Fourteenth Amendment subjects all such 
 regulations to the scrutiny of the Supreme Court lest any citi- 
 zen should be deprived of his life, liberty, or property without 
 due process of law, or denied the equal protection of the laws. 
 In the second place, certain direct prohibitions in the Con- 
 stitution limit this power. The states are not free to deal 
 with contracts as they may choose, slavery is prohibited, alco- 
 holic beverages forbidden. In the third place, the federal 
 government within the spheres granted to it has the power of 
 government. That is, it has the power to pass regulations 
 controlling both the persons and things within these spheres. 
 This is strikingly illustrated by the federal regulations of com- 
 merce. The anti-trust laws and the federal trade commission 
 
 '^License Cases, S How. 504, 583. 
 -Lochner v. New York, 198 U.S. 45, 53.
 
 supremacy 
 
 1 6 STATE AND MUNICIPAL G0VERN:\IENT 
 
 regulate the organization of business. Numerous statutes de- 
 termine the conduct of commerce, the hours of labor, and even, 
 in the Adamson Law, the wages. Federal law, moreover, pro- 
 hibits under definite penalties the transportation of certain 
 articles, and this prohibition very effectually controls their 
 consumption and use by the citizens of the states. Hence, 
 even in this field, where theoretically the states are supreme, 
 there is a growing tendency to extend the activities of the 
 federal government. 
 Federal The States in all their activities are subject to the limitations 
 
 of the Federal Constitution : 
 
 This Constitution, and the laws of the United States which shall 
 be made in pursuance thereof ; and all treaties made, or which shall 
 be made, under the authority of the United States, shall be the 
 supreme law of the land ; and the judges in every State shall be 
 bound thereby, anything in the Constitution or laws of any State 
 to the contrary notwithstanding.^ 
 
 Federal supremacy acts directly and indirectly, positively and 
 negatively. It acts directly when, by the Federal Constitu- 
 tion, the treaty-making power, or a federal law, it operates 
 so as to compel the action of a citizen of a state. The pay- 
 ment of the federal income tax, the registration conducted 
 under the draft law, may be taken as examples of direct, posi- 
 tive federal supremacy. It acts negatively when one of the 
 federal prohibitions prevents the action of a state law. Thus 
 the prohibition upon a state from passing a law which violates 
 the obligation of contracts has frequently prevented a state legis- 
 lature from taking the action it desired. It acts indirectly when, 
 as in the case of the regulation of commerce, absence of federal 
 regulation has been held to prohibit direct state regulation. 
 Federal supremacy acts not upon the states as bodies politic, 
 but upon the citizens of the states, who are at the same time 
 citizens of the United States. It is not addressed to state gov- 
 ernments, but to individuals, therefore it is generally enforced 
 by judicial process. Federal supremacy is asserted in a case 
 at law and trial in the federal courts, followed by a decree 
 
 ^The Constitution of the United States, Article VI, clause 2.
 
 THE NATURE OF THE AMERICAN STATE 17 
 
 enforceable by the United States marshal or, in the last in- 
 stance, by the United States troops. Specifically, cases to 
 which the United States is a party or cases in which a 
 federal law or constitutional right has been questioned may be 
 transferred to the federal courts for determination. 
 
 By the original, unamended Federal Constitution, as first 
 adopted, the national government concerned itself with na- 
 tional affairs, the state governments with the domestic rela- 
 tions of their citizens. Fundamental rights were protected 
 against invasion by either government. The first ten amend- 
 ments were designed to limit the federal government and pro- 
 tect the governments of the states. Judicial interpretation 
 extended the powers and spheres of federal activity, and expe- 
 riences of the Civil War resulted in the adoption of amend- 
 ments which apparently made the federal government the 
 censor of state legislation. Since that time the centralizing 
 tendencies have steadily grown. Constitutional amendments 
 and federal legislation alike have decreased the spheres of state 
 activity and limited state control. Yet in spite of these restric- 
 tions it is to the state rather than to the federal government 
 that the citizens look first.
 
 CHAPTER II 
 
 STATE CONSTITUTIONS 
 
 Importance 
 of state con- 
 stitutions 
 
 Origin of 
 state con- 
 stitutions 
 
 Every American state has a written constitution.^ This 
 constitution is the basis of the poHtical institutions of the 
 state. It organizes the frame of government ; it grants powers 
 to the various departments of government, and, equally im- 
 portant, prescribes limitations upon the exercise of these 
 powers ; it determines the electoral qualifications and guaran- 
 tees to individuals the possession of the rights of liberty and 
 property, which are beyond the power of the state government 
 to touch. State constitutions are the expression of the sover- 
 eign rights of the people of the states — rights which are 
 limited only by the Federal Constitution, treaties, and federal 
 laws. In the life of the people of a state the state constitution 
 is thus the most important and fundamental document. 
 
 The state constitutions are the oldest political documents 
 in the United States. Although like the Federal Constitution, 
 they were not patterned upon it. Rather, the Federal Constitu- 
 tion copied and adapted many of the principles of the state 
 constitutions. The latter developed from the colonial charters, 
 which in turn were modeled upon the charters of the great 
 mercantile companies of the sixteenth and seventeenth cen- 
 turies. These charters, modified from time to time by fresh 
 grants from the king, by acts of Parliament, and, particularly, 
 by actual experiences gained in the colonies, served as the 
 
 lA detailed analysis and careful treatment of state constitutions is 
 to be found in J. Q. Dealey, The Growth of American State Constitu- 
 tions. See also W. F. Dodd, The Revision and Amendment of State Con- 
 stitutions ; R. S. Hoar, Constitutional Conventions; J. A. Jameson, 
 A Treatise on Constitutional Conventions: their History, Powers and 
 Modes of Proceeding. The constitutions of all the states up to looo are 
 printed in F. N. Thorpe, Federal an<l State Constitutions. The volumes 
 of the American Year Book give a summary of the amendments adopted 
 each year. 
 
 i8
 
 STATE CONSTITUTIONS 19 
 
 model for the state constitutions which were adopted in the 
 Revolutionary period and in the last quarter of the eighteenth 
 century. Only one state, Massachusetts, retains the constitu- 
 tion framed during this period, and that has been extensively 
 amended and revised. But all the states, even in their most 
 modern and latest constitutions, hark back to the principles 
 and framework of their early constitutions. 
 
 The first movement for a state constitution came in Massa- The first 
 chusetts.^ On June 9, 1775, the Continental Congress- advised stitutions 
 the revolutionary convention of Massachusetts to summon 
 from the towns representatives who should choose a coun- 
 cil and exercise the powers of government. This form of 
 government sufficed for Massachusetts until the adoption of 
 the present constitution in 1780. In 1776 the Continental 
 Congress again advised the states that they should "adopt such 
 government as shall, in the opinion of the representatives of 
 the people, best conduce to the happiness and safety of their 
 constituents in particular, and America in general."'' Connec- 
 ticut and Rhode Island were so content with the framev/ork of 
 government established by their charters that they continued 
 to operate under them until the nineteenth century.* The 
 other states, however, formulated written constitutions during 
 the Revolutionary period. 
 
 The method by which the first state constitutions were Formula- 
 framed emphasizes the fact that these constitutions were revo- revoiution- 
 lutionary in character. With the exception of the constitution ^^^jong^^'" 
 of Massachusetts, none of them were submitted to the people 
 for ratification. All were framed in bodies existing without 
 legal authority or by assemblies summoned by these revolu- 
 tionary bodies. The consent of the people, backed by the 
 success of the revolutionary army, was the sanction which 
 caused the general acceptance of these documents and the 
 governments established by them. In the case of Massachu- 
 setts and New Hampshire, constitutional conventions were 
 
 ij. Q. Dealey, The Growth of American State Constitutions, chap. iii. 
 
 ^Journals of the Continental Congress, Vol. II, pp. 83-84. 
 
 3Ibid. Vol. IV, p. 342. 
 
 ■* Connecticut adopted a constitution in 1818, and Rhode Island in 1842, 
 
 /
 
 20 STATE AND MUNICIPAL GOVERNIVIENT 
 
 summoned by the revolutionary bodies, and after one failure in 
 Massachusetts and two in New Hampshire they succeeded in 
 producing constitutions which were accepted by the people. 
 In South Carolina the revolutionary convention framed and 
 proclaimed the constitution itself during March, 1776. In 
 1777 the legislature prepared a new constitution which was 
 put into effect by the next assembly. In Delaware, New 
 Jersey, Pennsylvania, and Virginia the revolutionary conven- 
 tions framed the constitutions. In Georgia, Maryland, New 
 York, and North Carolina the revolutionary congresses sum- 
 moned conventions which framed and promulgated constitu- 
 tions without submitting them to the people. 
 Chief provi- Five of these thirteen constitutions prescribed no method of 
 early con- amendment,^ but this did not prevent the legislatures from 
 stitutions: aijgj-ing the constitutions'- themselves or from providing 
 (i) Method methods of amendment. This absence of definite methods of 
 ment amendment indicated lack of consideration rather than any 
 
 conscious attempt to create sovereign legislatures with con- 
 stituent powers. The adoption of subsequent constitutions 
 and later amendments early developed the method of formula- 
 tion, either by the legislatures or by conventions, and of 
 ratification by the people. 
 (2) The The frames of government established by these constitutions 
 
 government , , ..... » ,, i . i i r 
 
 in early con- had many similarities. All the states provided for an execu- 
 stitutions j^j^g j^ ^j^g j^g^ England states and New York the governor 
 
 was elected by the voters; elsewhere, by the legislatures. 
 South Carolina provided for a two-year term, Delaware and 
 New York for a three-year term. In the other states the gov- 
 ernor was chosen annually. Most of the states placed re- 
 strictions upon his reelection. More important, however, than 
 the method of choice of governor was the fact that much, if 
 not most, of the executive prerogative of the colonial governors 
 was transferred to the legislatures. Thus the fear and jealousy 
 which had been inspired by the colonial governors appointed 
 by England resulted in the creation of a state governor so 
 
 ^New Jersey, New York, North Carolina, Pennsylvania (1790), 
 VirRinia. 
 
 2 This was done in New Jersey, although prohibited by Sect, xxiii.
 
 STATE CONSTITUTIONS 21 
 
 weak that the development of the executive office has been 
 a constant adding to his powers. 
 
 In every state constitution the legislature was given the (3) The 
 
 , . .J legislature 
 
 predominant place. As has been seen, in some states it assumed ineariycon- 
 the prerogative of revising the constitution. In all states there 
 were few limitations to its power. Only in Massachusetts 
 was the governor given even a suspensive veto. In all the 
 states except Georgia, Pennsylvania, and Vermont the legisla- 
 ture was bicameral, and in the second constitutions of those 
 states this form was adopted.^ 
 
 The courts were practically unchanged from colonial times (4) judicial 
 
 111 system 
 
 except that the judges were no longer named by the crown. 
 In Delaware and Pennsylvania they were appointed by the 
 governor; in Maryland, Massachusetts, and New Hampshire 
 by the governor and council ; in New York by a committee 
 of four senators. Judges were elected by the legislature in 
 New Jersey, North Carolina, South Carolina, and Virginia 
 and by the voters in Georgia. 
 
 In Connecticut and Rhode Island the government provided Connecticut 
 by the royal charters was substantially unchanged. At annual i^und 
 elections the people chose the governor, deputy governor, and 
 a bicameral assembly. The assemblies had practically all 
 power, supervising the activities of the governor and electing 
 the judges. Since there was no provision for the amend- 
 ment of charters, the assemblies, on separation from Great 
 Britain, became the legal source of all the powers of their 
 respective states. 
 
 Fundamental Principles in State Constitutions" 
 The preambles to the state constitutions express the idea Popular 
 
 , ^ T i r ii- sovereignty 
 
 of popular sovereignty in the first sentence. In most 01 the 
 documents the first words of the preamble are "We the 
 people ... do ordain and establish." In spite of the fact 
 that the first state constitutions were framed by revolutionary 
 
 iThe constitution of Vermont provided for a single-chambered legis- 
 lature, which was continued until 1836. 
 
 2 For a very suggestive and concise treatment of this subject see 
 A. N. Holcombe, State Government in the United States, pp. 21-40.
 
 2 2 STATE AND IMUNICIPAL GOVERNMENT 
 
 bodies or the legislatures, and the vast majority of them not 
 submitted to the people for ratification, popular sovereignty 
 was recognized implicitly and explicitly in the preambles to 
 the second revised constitutions. More important than the 
 extent of powers exercised by the legislatures or by any of 
 the instruments of government was the recognition that in 
 the last analysis the people, not the legislature, were sovereign. 
 Popular sovereignty asserted in state constitutions does not 
 mean state sovereignty, but the power of the people to make 
 or to alter the frame of government under which they live. It 
 means that the people have the right to protect themselves 
 from the instruments of government they created by reserving 
 to themselves the rights and privileges which would be beyond 
 the power of the government to touch. It means that the 
 people, not the legislature nor any department of government, 
 might draw upon these rights and privileges and thus extend 
 the sphere and activities of the government. As Professor Hol- 
 combe well says, quoting Lincoln, "It means government of 
 the people, by the people, and for the people." 
 
 Reservation All State Constitutions contain a bill or declaration of rights. 
 
 the"pe"pie° This is only a means of emphasizing the doctrine of popular 
 sovereignty and of placing certain rights beyond the power 
 of the state governments to usurp. It might be argued, as 
 Hamilton did with regard to the first ten amendments to the 
 Federal Constitution, that such bills or declarations of rights 
 were unnecessary, since the governments had no powers other 
 than those granted them. But in the earlier constitutions there 
 had been few limitations upon the powers of the legislatures, 
 and the states were well advised in placing certain rights of 
 civil liberty beyond the possibility of legislative control. The 
 rights so safeguarded included guarantees of life, liberty, 
 property, and happiness; freedom of conscience, speech, press, 
 and assembly ; habeas corpus and the judicial rights which 
 had developed in England ; guarantees against unreasonable 
 searches, seizures, imprisonment, or bail ; and the right to 
 "reform, alter, or abolish forms of government." Since most 
 of these guarantees are repealed in the Federal Constitution 
 as limitations u|)(tn the federal government or upon the states.
 
 STATE CONSTITUTIONS 23 
 
 the citizens of the American states are protected in their 
 fundamental privileges against the action of both state and 
 federal governments and, by the Fourteenth Amendment, even 
 against action by the majority of the people of the state. 
 
 Another fundamental principle of the state constitutions is supremacy 
 the supremacy of law. This was not an American invention, °^ '^^ 
 but a heritage directly from England. The rule of law in 
 England^ means, first, that no man shall be punished except 
 for a distinct breach of law established in the ordinary legal 
 manner before the ordinary courts. In the second place, it 
 means that all persons, whether officials or not, are subject to 
 the law. As expressed in the constitution of Massachusetts, 
 it signifies "that all shall be governed by certain laws for the 
 common good."- Or, as it is expressed more at length in the 
 Declaration of Rights, "each individual of the society has a 
 right to be protected by it in the enjoyment of his life, liberty, 
 and property, according to standing laws."^ Law includes in 
 state governments not merely the by-laws and ordinances of 
 subordinate lawmaking bodies but the statutes passed by the 
 state legislatures. Even more, it embraces the constitution 
 itself, which is the supreme law within the state. Concretely, 
 a law is a rule which the courts will enforce. But in the case 
 of a conflict of laws the courts will unhesitatingly enforce the 
 higher law. Thus, for example, in a conflict between an act 
 of the legislature and a principle of the constitution, the courts 
 will without fail enforce the constitution and declare such an 
 act "unconstitutional and void."* 
 
 If, however, law. is simply the rule which the courts enforce. The courts 
 popular sovereignty would be denied and the supremacy of popJuar^° 
 the judiciary would be established. From earliest times all sovereignty 
 decisions of the judges have been subject to alteration, either 
 by the passing of a statute or by the adoption of a constitu- 
 tional amendment. The ultimate sanction for the rules which 
 the courts enforce and for the supremacy of law is not to be 
 
 ^A. V. Dicey, The Law of the Constitution, Part II, chap. iv. 
 
 2 Preamble to the Constitution of Massachusetts. 
 
 ^Article X. 
 
 ^See Everett Kimball, National Government, pp. 16-17, for examples.
 
 24 STATE AND MUNICIPAL GOVERNMENT 
 
 found unchangeable for all time in the principles of English 
 common law, the acts of the legislatures, or the dogmas of the 
 constitutions, but is in the final expression of the popular will. 
 Separation All the early state constitutions either implicitly or ex- 
 govemment plicitly adopted the principle of the separation of the powers 
 of government. The idea that there were three distinct func- 
 tions of government — legislative, executive, and judicial — was 
 stated by Montesquieu.^ In colonial times the citizens had 
 regarded the possession of legislative power by their assemblies 
 as one of their most successful weapons against the exercise of 
 the arbitrary power of the governor. But neither in the 
 colonial charters nor in the constitutional practice of Great 
 Britain was there an absolute and complete separation of the 
 executive and legislative powers, nor is such division possible, 
 separation Nevertheless, in the Virginia constitution of 1776 the prin- 
 expressedin ciple was expressed in these words: ''That the legislative and 
 stituti^ons executive powers of the State should be separate and distinct 
 from the judiciary."- In the Massachusetts constitution of 
 1780 it is amplified as follows: 
 
 In the government of this commonwealth, the legislative depart- 
 ment shall never exercise the executive and judicial powers, or either 
 of them : the executive shall never exercise the legislative and judi- 
 cial powers, or either of them : the judicial shall never exercise the 
 legislative and executive powers, or either of them : to the end it 
 may be a government of laws and not of men.^ 
 
 Separation But howcver explicitly stated, the division was not absolute 
 
 not absolute . ..-,1 f-»ri / r, \ 
 
 m any state constitution. In that of Massachusetts (1780) 
 and of New York (1777) the powers and functions of the 
 different departments were clearly defined, but each depart- 
 ment, in the distribution of powers and functions, received 
 powers and duties of all three kinds. Thus, in New York the 
 legislature exercised, through the power of impeachment by 
 the lower house, some judicial authority, and four members 
 of the upper house chosen by the lower formed the council of 
 
 1 Spirit of I.iiws, Bk. XI, chap. vi. 
 ^Bill of Rights, Sect. v. 
 3Dtclarali()ii of Rights, Article XXX.
 
 STATE CONSTITUTIONS 25 
 
 appointment which shared some of the governor's executive 
 power. The governor, through his right to convene and pro- 
 rogue the legislature and by messages to call its attention to 
 important matters, exercised legislative control to some extent. 
 While acting with the judges as a council of revision upon 
 the acts of the legislature, he had exercised some judicial 
 power. In the other states there was almost frank legislative 
 supremacy, and the theoretical principle of the separation of 
 departments seems of little value. 
 
 Nevertheless the principle remained. The executive had no The actual 
 power by ordinance to make the laws nor the legislature to separation 
 enforce them. Separation of powers does not require that the °^ powers 
 three departments should be entirely unconnected with each 
 other, but, as was later expounded in "The Federalist," it 
 meant that the whole power of one department should not be 
 exercised by the same body which possessed the whole power 
 of another department.^ Stated in this way, the division of 
 powers as expressed in state constitutions was a wholesome 
 restraint upon the danger that any one department might 
 misrepresent the popular will and subvert the rule of law. 
 
 The principle of checks and balances, which was fully de- Thedoc- 
 veloped in the Federal Constitution and in the later state checks and 
 constitutions, did not appear in the original constitutions of balances 
 the states. As has been pointed out, legislative supremacy 
 was quite generally the rule. Nevertheless, even in the first 
 constitutions, through the granting of powers to different de- 
 partments which were not similarly constituted, an imperfect 
 set of checks and balances was provided. The development 
 of the powers of the judiciary, however, made this system 
 more complete. 
 
 From 1778 the judiciary had regarded the state constitu- judicial 
 
 review 
 
 tions as limits set upon the power of the legislatures. In the strength- 
 enforcement of the constitutions the courts prevented the p^fn^p^le of 
 different departments from exercising powers and functions separation 
 not granted to them and kept them within the bounds estab- and popular 
 
 sovereifirntv 
 
 lished by the fundamental law. This was the logical develop- 
 ment of the rule of law, which, if impartially enforced, applied 
 
 iSee "The Federalist," No. 47.
 
 2 6 STATE AND INIUXICIPAL GOVERNISIEXT 
 
 not simply to individuals but to instruments of government. 
 
 It did not constitute, however, the judiciary as the sole and 
 
 final arbitrator. The people themselves, through their power 
 
 to amend the constitution, were able to control or alter the 
 
 decision of the judges. Yet until the people act through 
 
 their power to amend the constitution the decision of the 
 
 judges is final in the interpretation and the application of 
 
 the constitution.^ 
 
 ciassifica- State Constitutions may be variously classified — chronologi- 
 
 constitu- cally, geographically, or by the character of the governments 
 
 *^°°^ they establish. Professor Dealey has offered a classification 
 
 which seems suggestive : - 
 
 The six constitutions of the New England states of which that of 
 Massachusetts is the best ; seven constitutions formulated during the 
 twenty-five years preceding the close of the Civil War, these are 
 democratic in spirit but are in need of revision ; twenty-five con- 
 stitutions made or revised since the war, representing readjustments 
 necessitated through reconstruction or through newer economic con- 
 ditions ; and finally the ten constitutions of the new mining or agri- 
 cultural states west of the Mississippi, admitted since i88g. The 
 radicalism prominent in this section of the country may best be seen 
 in the constitutions of Oklahoma and Arizona and in the many 
 amendments introduced since 1902 into the constitutions of Oregon 
 and California. 
 
 Similarity All these constitutions have certain features in common. 
 
 stituiions The framework of government is everywhere the same, al- 
 though there are differences in the details of its composition. 
 All the states provide for the three departments of government 
 and pretend to adhere to the principle of the separation of 
 
 ^Because of the difficulty of amendlnp; certain conslitutions and thus 
 bringing decisions of the judiciary more quickly in harmony with the 
 desire of the people, the doctrine of the recall of judicial decisions was 
 suggested by ex-President Roosevelt in IQ12. This had the advantage 
 of making it possible for the people to correct an unpopular decision in 
 a particular case more quickly than could be done by a constitutional 
 amendment. It had the grave disadvantage, however, of acting on a 
 particular case rather than of establishing a constitutional principle, as 
 is done by an amendment (sec pages 31-36). 
 
 'Cyclopedia of American Government, Vol. I, p. 438.
 
 STATE CONSTITUTIONS 27 
 
 powers. All constitutions contain a bill or declaration of 
 rights by which certain matters are reserved to the people and 
 put beyond the power of the legislature to alter. All are alike 
 in the process of development, which tends to place limitations 
 upon the legislature, to increase the authority of the executive, 
 and to transfer powers from both the executive and the legis- 
 lature to the electorate. To the newer and more radical con- 
 stitutions, and even to the older ones, amendments have been 
 added which carry the doctrine of popular sovereignty to its 
 logical extreme and enable the people, by means of the initia- 
 tive and referendum, to make their will immediately effective. 
 
 All constitutions have grown longer. Framed at the end of increasing 
 
 . , , , • • !■ -K' -r length of 
 
 the eighteenth century, the constitution of New Jersey con- constitu- 
 tained but twenty-five hundred words. In the first years of the tionsdueto: 
 twentieth century Oklahoma adopted a constitution of over fifty 
 thousand words. The reason for this increasing length was 
 threefold. Legislative supremacy proved unsatisfactory. The 
 people of the states came to distrust and fear legislative action 
 rather than to revere and place confidence in the representa- 
 tives they had elected. Consequently, at almost every revision 
 of any constitution additional restrictions are placed upon the d) Restric- 
 
 ..,.,. •jjj tions on 
 
 legislature. Not only was positive legislative action dreaded, legislatures 
 but the constitutional conventions feared that the legislatures 
 would not take the action they desired. As a result matters 
 are found in the constitutions which would more properly be 
 expressed in statutes. Thus, for example, the constitution of 
 Oklahoma contains long sections regarding corporations and 
 has more of the characteristics of a code of laws than of a 
 framework of government. 
 
 A second reason for the longer constitutions is found in (2) changed 
 the changed social and economic life of the state. New kinds 
 of wealth have been created; new evils have developed. To 
 protect or to subject these to the control of the state and to 
 allow the state to cope with these fresh conditions, additional 
 powers have been granted and private property and personal 
 liberty subjected to new restraints. Finally, the growing com- 
 plexity of modern life and the desire to submit all phases of 
 this to popular control has led to the creation of numerous 
 
 economic 
 conditions
 
 28 
 
 STATE AND IMUXICIPAL GOVERNISIEXT 
 
 Long and 
 detailed 
 constitu- 
 tions tend 
 to break 
 down the 
 distinction 
 between 
 constitu- 
 tional and 
 statutory 
 law 
 
 Contents of 
 a typical 
 state con- 
 stitution: 
 
 (i) The 
 preamble 
 
 (2) Ratifi- 
 cation 
 clause 
 
 (3) Tem- 
 porary 
 provisions 
 
 (4) Bill of 
 rights 
 
 [Traditional 
 bills of 
 rights] 
 
 officers and officials with duties and functions which required 
 extended definition. 
 
 The tendency to increase the length of state constitutions 
 and to include in them materials which might more properly 
 be found in statutes is unfortunate. It not merely confuses 
 the distinction between fundamental law and statutory enact- 
 ments but frequently puts into permanent form measures 
 which are of temporary importance or whose unimportance is 
 not foreseen. Moreover, the process of constitutional amend- 
 ment in all states is more difficult than legislative enactment, 
 and in some states it is even painfully slow. Thus, it may 
 seriously hamper a state in a crisis and prevent the immediate 
 exercise of popular control. 
 
 A state constitution usually consists of nine parts: 
 
 The preamble and enacting clause stands first and contains 
 the assertion of the doctrine of popular sovereignty, in that the 
 constitution is ordained and established by the people of the state. 
 
 A ratification clause follows with the signatures of the officers 
 of the ratifying or formulating authority. 
 
 Oftentimes there is a schedule of temporary provisions. 
 
 A bill of rights is invariable in the later constitutions, and 
 tends, like the constitutions themselves, to increase in length. 
 Originally a typical bill of rights contained clauses protecting 
 the private rights of the individual, which were inherited from 
 the constitutional development of England. These bills usu- 
 ally declared for the freedom, equality, and independence of 
 the citizens;, popular sovereignty; the right of the people to 
 change and alter their government ; the separation of the 
 departments of government ; the right of the individual to the 
 judicial privileges which were traditional in English procedure 
 — namely, to demand the cause and nature of his accusation, 
 to be confronted with his accusers, to obtain evidence in his 
 own behalf, to have a jury trial ; freedom of press and of 
 conscience ; the right to bear arms. They also contained pro- 
 hibitions against the suspension of laws without the consent of 
 the representatives, against excessive bail, fines, and cruel and 
 unusual punishments, and against general search warrants.^ 
 
 'Drawn from llu- HiU of RIkHIs of the constitution of Virginia, 1776.
 
 STATE CONSTITUTIONS 29 
 
 In addition to these fundamental and traditional rights, the [Modem 
 more recent constitutions sanction new developments in judi- to bins of 
 cial procedure. For example, in Oklahoma prosecutions for "^htsj 
 felony or misdemeanor upon information, as well as indict- 
 ment, are sanctioned ; in certain courts the jury may consist 
 of but six nien ; and in civil cases, and criminal cases involving 
 crimes less than felony, a verdict of three quarters of the jury 
 is sufficient. 
 
 In general, private property is carefully guarded ; yet in [Modem 
 
 1 ,^, , , ... . , . attitude 
 
 the Oklahoma constitution the state may engage in any busi- toward 
 ness except agriculture, while in the forty-ninth amendment to property! 
 the constitution of IMassachusetts, adopted in 191 8, the legisla- 
 ture is given power, on making just compensation, to take 
 lands for the conservation, development, and utilization of 
 the agricultural, mineral, forest, water, and other natural 
 resources. In Oklahoma corporations are denied several privi- 
 leges and immunities secured to natural persons, their records 
 are subject to the inquisitorial power of the state in unre- 
 stricted searches, and their officers may be forced to give 
 testimony which might be incriminatory. 
 
 In the framework of government the constitution provides for (5) The 
 the establishment of the three departments of the government, government 
 grants them their powers, and prescribes limitations upon the 
 exercise of these powers. As has been said, in all the states 
 the main outlines of government are the same, although there 
 is considerable variation in details. Under this head, moreover, 
 are placed the provisions for rural, county, and municipal gov- 
 ernment, more or less explicitly framed. The suffrage clause 
 and any provisions concerning the election of state officials also 
 are included. Logically, as is shown by the recent rearrange- 
 ment of the Massachusetts constitution, the sections providing 
 for the use of the initiative and referendum should also be 
 confined under this head. 
 
 The financial clauses of the constitution contain the funda- (6) Finan- 
 mental limitations upon the financial power of the state gov- 
 ernment. Here are found the restrictions upon the use of the 
 credit of the state, limitations upon the state debt, and, per- 
 haps most important of all, the provisions concerning taxation.
 
 30 
 
 STATE AND IMUNICIPAL GOVERXMEXT 
 
 (7) Corpora- 
 tions 
 
 (8) Labor 
 
 (g) Miscel- 
 laneous 
 
 (10) The 
 
 amending 
 
 clause 
 
 Corporations are dealt with in an increasing number of 
 sections. In the older constitutions this is disposed of with 
 comparative brevity, but in the newer constitutions — particu- 
 larly those of a more radical nature — corporations are sub- 
 jected to most minute provisions for their regulation. For 
 example, in the constitution of Oklahoma fourteen pages are 
 devoted to the regulation of corporations. In constitutions of 
 this type regulatory commissions are established with power 
 to inspect and supervise the activities of corporations, to pre- 
 scribe the rates for certain kinds of services, and to supervise 
 the issuance of stock and securities. 
 
 Labor is often the subject of several constitutional provi- 
 sions. In some states departments of labor are established, 
 the eight-hour day stipulated in all public employments, and 
 permissive directions given to the legislature to pass laws 
 concerning the health and safety of labor, particularly in the 
 mines and railroads. 
 
 State constitutions have always contained a large number 
 of miscellaneous sections. Even the early constitutions con- 
 tained provisions for the state educational system, but the 
 more modern instruments not only provide for a school sys- 
 tem, but in some of the Western states set aside certain 
 revenues for the maintenance of this system. Under this 
 heading are classified the provisions concerning the manufac- 
 ture and sale of intoxicating liquors, the maintenance of the 
 poor, the safeguarding of public health, the provisions for 
 charitable institutions, and the control of public property. 
 
 The last important section of a typical state constitution 
 contains the methods of amendment and revision. These are 
 of vital importance. As has been pointed out, some of the 
 Revolutionary constitutions had no such clauses, and in absence 
 of them the legislature either itself amended the constitution 
 or supplied the means by which the constitution was revised 
 or amended through the constitutional convention. If, how- 
 ever, the fundamental principle of popular sovereignty rather 
 than legislative supremacy is to be maintained, it is necessary 
 that the provisions for constitutional amendment and revision 
 should be most carefully expressed.
 
 STATE CONSTITUTIONS 31 
 
 At the outset a distinction is sometimes made between constitu- 
 amendment and revision.^ The distinction is one both of kind revision and 
 and of degree. A revision is generally applied to the work of ^™^°"^'°^°t 
 a constitutional convention, which either drafts an entirely 
 new constitution or proposes a series of amendments that in 
 effect formulate a new instrument of government. It is 
 entirely possible, however, that a constitutional convention 
 may propose only a few amendments dealing with details, 
 rather than attempt to remake the constitution. Amendment 
 is the term usually applied to the proposal or proposals to 
 change certain provisions and details of the constitution while 
 leaving the general instrument intact. 
 
 Most states provide for constitutional amendment by leg- Amend- 
 islative process. In New Hampshire amendments may be 
 proposed only through the medium of a constitutional con- 
 vention. Legislative amendment was allowed in the early state 
 constitutions, provided, in general, that the same amendment 
 was passed by two successive legislatures. Delaware alone 
 continues to adhere to this method and does not require a 
 popular referendum. In all other states the steps in the 
 process are proposal in the legislature, adoption by one or 
 more consecutive legislatures, and acceptance by the people 
 at an election. Sixteen states require the action of two legisla- 
 tures ; in thirty-two the action of one is sufficient. In those 
 states where the sessions of the legislature are held each year 
 there is little objection to the requirement that two legislatures 
 must pass upon an amendment before submitting it to the 
 people, but with the trend toward biennial sessions a serious 
 objection arises. Two or three years may elapse between the 
 proposal of the amendment and the popular referendum. 
 Taking into consideration, in addition, the fact that the char- 
 acter of the constitutions has changed and that they now 
 include great masses of legislation, the requirement of accept- 
 ance by two legislatures prevents the people from altering or 
 
 repealing a clause or provision which emergency has proved 
 .<• -- - 
 ij. Q. Dealey, The Growth of American State Constitutions, chap. xi. 
 For a more extended treatment see W. F. Dodd, The Revision and 
 Amendment of State Constitutions, chap. iv.
 
 32 
 
 STATE AND MUNICIPAL GOVERNIMENT 
 
 Majority 
 required 
 in the 
 legislatures 
 
 The referen- 
 dum on the 
 amendment 
 
 Vote 
 
 required on 
 referendum 
 for consti- 
 tutional 
 amend- 
 ments 
 
 Revision 
 
 undesirable.^ It should be added, however, that since the initia- 
 tive and referendum applies in many states to constitutional 
 amendments, this objection is more theoretical than actual. 
 
 Nineteen states require only a majority vote of the legisla- 
 ture for amendments, seventeen require a two-thirds vote, and 
 seven a three-fifths vote.- 
 
 In Mississippi and South Carolina — states where the ap- 
 proval of two legislatures is required — the referendum is 
 placed between the action of the first and second legislatures. 
 This gives to that body, rather than to popular choice, the 
 final voice in accepting the amendments. In all other states 
 except Delaware, where the referendum is not used, the ap- 
 proval of the voters is placed after legislative action, thus 
 giving the people the final decision. 
 
 The constitutions in thirty-three states require that amend- 
 ments shall be approved by ''a majority of those voting 
 thereon." In three states ' the proposed amendments must be 
 ratified by a majority of the electors. Nine states'* have pro- 
 visions which require a majority of all votes cast at the elec- 
 tion at which the amendment is submitted. This is extremely 
 difficult to obtain, and has prevented the adoption of a certain 
 kind of amendment and led to curious evasions on the part of 
 some states.^ Such requirements have the doubtful advantage 
 of preserving the provisions of the constitution against alteration 
 by a small section of the people. In experience, however, this 
 is outweighed by the difficulty of obtaining the requisite major- 
 ity on all amendments. It means, therefore, that constitutions 
 of this sort are for all practical purposes unamendable in details. 
 
 Most of the constitutions provide for revision by a constitu- 
 tional convention.'' INIassachusetts was the first state to try 
 
 1 J. Q. Dealey, The Growth of American State Constitutions, p. 140. 
 
 ^Ibid. p. 141. 
 
 •''Idaho, Indiana. Wyoming. 
 
 ■•Alabama, Arkansas, Illinois, Minnesota, Mississippi, Nebraska, Ohio, 
 Oklahoma, Tennessee. 
 
 ''Sec W. F. Dodd, The Revision and .Amendment of State Constitu- 
 tions, pp. 185-195. 
 
 •■The following states make no such provision: Arkansas, Connecticut, 
 Indiana, Louisiana, Massachusetts, Mississippi, New Jersey, Nortli 
 Dakota, Pcnnsvlvania, Rhode Island, Texas, and Vermont.
 
 STATE CONSTITUTIOXS 33 
 
 this plan, which was soon adopted by the other states. Even 
 those states whose constitutions did not make such provision 
 have utilized this method. In fact, it is generally accepted that 
 the legislature of a state may, even in the absence of constitu- 
 tional provisions, submit to the people the question of whether 
 a constitutional convention shall be summoned to revise the 
 constitution. Certain states, however, require the submission 
 of such a question at specific intervals,^ the underlying theory 
 being that at least once in every generation the people should 
 pass upon the question of revising their fundamental frame 
 of government. 
 
 The constitutions of some states make elaborate provisions composition 
 concerning the composition of the convention ; in others this convention 
 is left to the legislature.- Failing such provisions, the legis- 
 lature exercises the power of determining the composition of 
 the convention. In some instances its composition and the 
 purpose for which it is summoned are made a part of the 
 act submitted to the people for approval. In others popular 
 approval is asked only upon the question of summoning a 
 convention; this being granted, the legislature has full power 
 to determine its composition. ^Modern constitutional conven- 
 tions usually attempt to represent the small localities, such as 
 the representative districts of the state legislature; the larger 
 districts, like the counties, state senatorial, or even congres- 
 sional districts; and, finally, the state at large. These dele- 
 gates at large, who are chosen by the majority of the voters 
 of the entire state, are generally recognized as the leaders of 
 the convention. 
 
 Two theories have been put forward and acted upon con- Powers of 
 cerning the powers of the convention. According to the first the tutionai 
 constitutional convention is a body subordinate to the state 
 legislature, so that the state legislature may, at its discretion, 
 
 iNew Hampshire, every- seven years; Iowa, every ten; Michigan, 
 every sixteen ; Maryland, New York, Ohio, Oklahoma, every twenty. 
 In Iowa, Michigan, New York, Ohio, and Oklahoma the legislature is 
 given discretion to submit the question at other times than the periods 
 stated in the constitution. 
 
 -See W. F. Dodd, The Revision and Amendment of State Constitu- 
 tions, and R. S. Hoar, Constitutional Conventions. 
 
 convention
 
 34 STATE AND MUNICIPAL GOVERNMENT 
 
 prescribe its composition and limit its powers. It may deter- 
 mine what matters shall be considered by the convention and 
 how these shall be submitted to the people. This doctrine 
 was asserted by the Pennsylvania supreme court in 1874, but 
 was not followed by the last convention called in that state. 
 By the second theory the constitutional convention, since it 
 represents the sovereignty of the people, is unfettered by 
 any legislative acts. This is the more generally accepted doc- 
 trine. Legislatures, however, have not generally violated the 
 proper legislative acts which were necessary for the summoning 
 of the convention, for its organization, or for the submission 
 of its work for approval. Conventions, on the other hand, 
 have rarely attempted to exercise functions which belonged 
 obviously to the legislative department, although they have 
 not hesitated to assume powers properly belonging to them 
 even in defiance of legislative enactment. 
 Limiutions Constitutional conventions are not absolutely sovereign. 
 tutionar '" They are limited explicitly by the provisions of the Federal 
 conventions Constitution, treaties, and statutes, and by the constitution of 
 the state. ^ There are, moreover, certain implied limitations ; 
 for example, that the convention should not exercise legislative 
 or judicial power; that in general, though sovereign for its pur- 
 pose, it should not transgress the fundamental principles of 
 state government. 
 The consti- On the assembling of the convention a chairman or presiding 
 conveirtion officer is choscn who has many of the powers of the speaker 
 at work ^f ^^^ legislature. He possesses the obvious parliamentary 
 control over recognition and the preservation of order. In 
 some conventions, as, for example, the INIassachusetts conven- 
 tion of 191 7, he is given the power to appoint committees. 
 Whether the chairman appoints the committees or not the con- 
 vention is divided into committees to whom are referred the 
 multitudinous proposals for amendments. These committees 
 make more or less careful investigations and hold hearings, 
 and finally present their reports to the convention. In many 
 
 ^In Virginia constitutional conventions in 1830, 1850, i86q, and 1Q02 
 did not submit their work to the electorate prescribed by the constitu- 
 tions under which they were called, but these cases are exceptional.
 
 STATE CONSITTUTIONS 35 
 
 states these are discussed in committees of the whole, where 
 they are subject to debate and amendment. They are finally 
 reported to the convention for adoption or rejection. In some 
 conventions there is a general committee on revision or re- 
 arrangement. Particularly is this necessary when numerous 
 and fundamental provisions are added to an old document. 
 The amendments adopted by the convention are then almost 
 universally referred to the people for approval at some general 
 election. Some states, however, provide that constitutional 
 amendments should be submitted only at special elections. 
 This has the advantage of concentrating the attention of the 
 voters upon the proposed amendments, but it has the disad- 
 vantage that such special elections may attract fewer voters 
 than ordinarily come out for the regular party elections. 
 
 A third method of constitutional amendment which may be The initia- 
 employed is the popular initiative followed by the referendum, referendum 
 Thirteen states^ possess the full initiative and referendum on 
 constitutional questions. In some of these states the initiative 
 petition requires a larger number of signatures than a petition 
 for an ordinary law. In others the proposed amendment has to 
 run the gantlet of the legislature. In some, however, the people 
 may initiate a constitutional amendment by the ordinary 
 lawmaking process and approve it by a popular referendum 
 accepted by a majority of those voting thereon. 
 
 The amendment to the Massachusetts constitution adopted The Massa- 
 in 19 1 8, while not typical of the ordinary procedure, may be^pi^n 
 taken as an attempt to allow for the expression of popular 1/ 
 opinion while safeguarding the permanency of the constitution. 
 By this provision an amendment may be initiated on a petition 
 signed by twenty-five thousand qualified voters. It then must 
 be submitted to a joint session of the house of representatives 
 and senate, where it must receive the approval of at least 
 one fourth of the elected members of two successive legisla- 
 tures. It is then submitted to the people and becomes a law, 
 if approved by three fourths of those voting thereon. 
 
 1 Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, 
 Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, and 
 Oregon.
 
 36 STATE AND MUNICIPAL GOVERNMENT 
 
 It is a general fear that the use of the initiative for constitu- 
 tional amendments would still further break down the distinc- 
 tion between statutory and constitutional law. From an 
 analysis of the amendments adopted, such a contention cannot 
 be maintained.^ It was feared, moreover, that the people, 
 undeterred by the legislature or a constitutional convention, 
 would attempt radical changes in the form of state government 
 or would write into the constitution too liberal provisions. 
 Experience has shown that this is not the case. The proposed 
 radical revision of the Oregon constitution in 1912-1913 was 
 overwhelmingly defeated. Of the proposed amendments to 
 the constitution of California only the recall of judges might 
 be considered unusual or revolutionary. In fact, no amend- 
 ment proposed by initiative has been adopted for which a 
 precedent might not be found in amendments proposed by 
 conventions or legislatures. Theoretically, perhaps, consider- 
 ing the ease with which signatures are obtained for petitions 
 and the lack of interest which voters display in marking their 
 ballots, great evils might be anticipated. Experience, however, 
 has not warranted such a gloomy foreboding. 
 
 ^See A. N. Holcombe, State Government in the United States, pp. 404- 
 411, 428-444, for an excellent discussion of the use of initiative and refer- 
 endum for constitutional amendments.
 
 PART II 
 THE POLITICAL SYSTEM OF THE STATES
 
 CHAPTER III 
 
 THE ORGANIZATION OF THE ELECTORATE 
 
 Lincoln defined popular sovereignty as a ''government of The 
 the people, by the people, and for the people." The popular 
 will, however, as expressed by the people has never been ex- 
 pressed by all the people. In every state it is a group of 
 people who are chosen to express the will of the entire state. 
 This group is the electorate. The electorate possesses the right 
 to vote, or the suffrage, by which the popular will is officially 
 and legally manifested. The right to vote, therefore, is not a 
 right possessed by all citizens of a state or a privilege granted 
 to certain citizens of a state ; it is a duty or a function which 
 certain citizens of the state are chosen to perform for all the 
 people. Thus, even in the elections the voters are the repre- 
 sentatives of the whole body of the people, as in lawmaking 
 the legislators represent the voters. 
 
 At all times in the United States the suffrage, or the right original 
 to vote, has been restricted. Even the declarations of rights ^oathl '°°^ 
 which preceded the first state constitutions, while declaring ^"^Sd 
 that elections should be free, were equally insistent that par- 
 ticipation in them should be restricted. Thus Pennsylvania 
 and Virginia restricted the franchise to "free men having a 
 sufficient evident common interest with, and attachment to 
 the community."^ The Massachusetts declaration allowed the 
 inhabitants to establish qualifications by their frame of 
 government. In all the states during the eighteenth century 
 this right was jealously guarded — in most of them by property 
 qualifications, and in all by some test of fitness. The nine- 
 teenth century initiated a gradually increasing extension of 
 the suffrage and removal of the restrictions, and this was 
 accelerated by the Civil War amendments to the Federal 
 
 1 Pennsylvania Declaration of Riglits, Article VII. 
 
 39
 
 40 STATE AND MUNICIPAL GOVERX:\IENT 
 
 states may- 
 prescribe 
 suffrage 
 qualifica- 
 tions 
 
 Present 
 qualifica- 
 tions for the 
 suffrage : 
 (I) Age 
 
 (3) Sex 
 
 Constitution, which prohibited restrictions on account of race, 
 color, or previous condition of servitude. It reached its logical 
 culmination in the adoption of the Nineteenth Amendment, 
 which prohibits restrictions of suffrage on account of sex. 
 
 Within these limits, however, the states are free to act and 
 to prescribe such qualifications for suffrage as they may see fit. 
 The right to vote is not a right of United States citizenship.^ 
 Therefore a state may, with impunity, deprive a United States 
 citizen of such a right, provided it is not done on the basis 
 of race, color, or previous condition of servitude.- But in so 
 doing, a state subjects itself to the possibility of having the 
 basis of its representation in Congress reduced in the propor- 
 tion which the number of citizens so deprived shall bear to 
 the whole number of male citizens in the state.^ By the Nine- 
 teenth Amendment a state was forbidden to deny the suf- 
 frage on account of sex, and Congress was given power to 
 enforce this. 
 
 The present qualifications for suffrage may be grouped 
 under six main headings : 
 
 All the states adopt the English rule of fixing the age limit 
 at twenty-one years. This is a lower age than is placed in some 
 European countries, where it is felt that a longer political 
 experience should be required of a voter; but in no country, 
 except the new German Commonwealth,^ has the age been 
 fixed at a lower figure. 
 
 At first all states limited the suffrage to males. In 1869 
 Wyoming granted suffrage to women ; Colorado followed in 
 1893 and Idaho and Utah in 1896. Beginning with the second 
 decade of the twentieth century the movement spread more 
 rapidly, and by 1920 included twenty-nine states. Thus far 
 the extension of the franchise to women had come entirely 
 through state action and was following the normal course 
 of allowing the states to determine their own qualifications 
 
 ^ Minor v. Ilappersell, 21 Wall. 162. 
 ^Amendment XV. 
 •■' Amendment XIV. 
 
 '' Suffrage is extended to all citizens, irrespective of sex, at the age of 
 twenty.
 
 THE ORGANIZATION OF THE ELECTORATE 41 
 
 for voting. In 1920, however, the Federal Constitution was 
 amended and a new federal restriction placed upon the states. 
 Thus the states lost their right to grant or withhold suffrage 
 on the basis of sex — a right which certain states were most 
 anxious to retain. 
 
 Theoretically it has long been felt by many that there was [Reasons for 
 no valid reason why women should not be consulted in deter- sion of the 
 mining the popular will. The changed conditions of society ^fmen] *° 
 and the changed economic status of women made it desirable 
 that they should have a legally recognized opportunity to be 
 formally consulted. The extension of the sphere of govern- 
 ment activities and the widening of the conception of the 
 duties and services of the state seemed to make it advisable 
 for the state to consult women on its affairs. The experiences 
 of the World War showed that women were capable, practically 
 as well as theoretically, of performing this function. Conse- 
 quently, first in Europe and then in the United States, the 
 suffrage was extended to them. 
 
 All states require that the voters should have a residence (3) Resi- 
 
 dcncc 
 within the state in which they vote. The most common period 
 
 is one year ; but Maine requires only two months and Idaho, 
 Indiana, Iowa, IMichigan, Nebraska, and Oregon, six months. 
 At the other extreme, in Alabama, Louisiana, IVIississippi, 
 North Carolina, Rhode Island, South Carolina, and Virginia, \j 
 
 two years' residence is necessary. What constitutes residence 
 is determined by state law, and once acquired it may be 
 retained under certain conditions even though the citizen be 
 absent. While the provisions of the absent-voting laws do not 
 alter the residence requirements, they do make it possible for 
 citizens temporarily absent to vote. 
 
 Most of the states demand that the voters shall be bona-fide (4) citizen- 
 citizens of the United States. A few states, however, allow ^ '^ 
 aliens to vote if they have filed their intention to become nat- 
 uralized. Similar provisions which formerly existed in other 
 states were adopted to encourage immigration ; but with the 
 exception of the states mentioned they have disappeared, and 
 the right to determine the officers and, indirectly, the policy 
 
 iSee Absent Voting, pp. gg-ioo.
 
 42 
 
 STATE AND IMUNICIPAL GOVERNMENT 
 
 (5) Prop- 
 erty qualifi- 
 cations 
 
 (6) Educa- 
 tion 
 
 of the state and of the United States has been properly 
 confined to United States citizens. 
 
 Practically all the early state constitutions imposed a prop- 
 erty qualification — in some cases on the voters only, in other 
 cases on the voters and also on the officers chosen b}' the 
 voters. These property qualifications have now almost every- 
 where disappeared. Pennsylvania requires of all voters 
 twenty-two years of age the payment of a state and county 
 tax. In some of the Southern states the payment of a tax is 
 one of the alternate qualifications with the literacy test. The 
 argument in favor of a property qualification is generally based 
 upon the theory that property is the evidence of permanency 
 or interest in the community, or a measure of ability. It may 
 be all of these, or it may be an evidence of none. Property 
 unjustly or corruptly acquired is hardly an evidence of fitness 
 to take part in the expression of the common will. 
 
 Fourteen states demand some educational attainment. In 
 thirteen states^ one must be able to read and write ; five states - 
 require simply the ability to read. In all these states, how- 
 ever, certain classes are exempted from complying with this 
 qualification. Persons physically unable to read or write 
 are exempted everywhere except in Connecticut, Mississippi, 
 and South Carolina. In the Northern states the requirement does 
 not apply to voters of a certain age or to those who were voters 
 at the time of the adoption of the constitution. In many of 
 the Southern states the educational prerequisite is made an 
 alternate for a property requirement, and in some Southern 
 states the sons and grandsons of voters at a certain period 
 are exempt from this education qualification.^ 
 
 1 Alabama, Arizona, California, Delaware, Georgia, Louisiana, Maine, 
 Massachusetts, New Hampshire. North Carolina, Oklahoma, South 
 Carolina, Virp;inia. 
 
 -Connecticut, Maryland, Mississippi, Washington, Wyoming. 
 
 ^State Manual of Constitutional Restrictions (see Index Digest of State 
 Constitutions, prepared for the New York Constitutional Convention, 
 igiS). For a brief statement of qualifications see tables in World Alma- 
 nac or American Year Book. For fuller treatment of the educational 
 qualification sec J. li. Phillips, "Educational Qualifications of Voters," 
 in University of Colorado Studies, Vol. Ill, p. 55.
 
 THE ORGANIZATION OF THE ELECTORATE 43 
 
 The exemption at a certain period of the grandsons of voters The 
 from the present requirements is popularly known as the " grand- fl^^^e^^^" 
 father clause." That the educational qualification need not 
 apply to certain classes has always been admitted. The South- 
 ern states, however, in their anxiety to insure the dominance 
 of the white voters, framed these exemptions so that illiterate 
 whites would generally be exempt while illiterate blacks would 
 be disfranchised.^ This was an attempt to circumvent the 
 Fifteenth Amendment, which forbade any state to deprive 
 the citizens of the United States of the right to vote on ac- 
 count of race, color, or previous condition of servitude. In 
 191 5 the Supreme Court met the issue squarely. In 19 10 
 Oklahoma, which was admitted as a state in 1907, adopted a 
 constitutional amendment requiring an educational qualifica- 
 tion; but ''no person who was, on January i, 1866, or any 
 time prior thereto, entitled to vote under any form of govern- 
 ment, or who at that time resided in some foreign nation, and 
 no lineal descendant of such person, shall be denied the right 
 to register and vote because of his inability to so read and 
 write sections of such Constitution. . . ." This, the Supreme 
 Court held, contravened the Fifteenth Amendment, saying : 
 
 It is true it contains no express words of an exclusion from the 
 standard it establishes of any person on account of race, color, or 
 previous condition of servitude, prohibited by the Fifteenth Amend- 
 ment, but the standard itself inherently brings that result into ex- 
 istence since it is based purely upon a period of time before the 
 enactment of the Fifteenth Amendment and makes that period the 
 controlling and dominant test of the right of suffrage.- 
 
 The purpose of the grandfather clause was confessedly to The purpose 
 disfranchise the negroes Vv^hile allowing the whites to vote. It gra^ndfather 
 was an attempt to insure that the electorate should contain an ^^^^^^ 
 overwhelming majority of white voters. Sometimes the asser- 
 tion is made that a simple literacy test, coupled with the 
 requirements of continuous residence and payment of a poll 
 
 ^For a detailed examination of these restrictions, with a discussion 
 of their constitutional bearings, see J. C. Rose, "Negro Suffrage," in 
 American Political Science Review, Vol. I, pp. 17-44. 
 
 'Gtiinn v. United States, 238 U.S. 347, 364-365.
 
 44 STATE AND MUNICIPAL GOVERNMENT 
 
 Disqualifi- 
 cations 
 
 The effect 
 of suffrage 
 qualifica- 
 tions 
 
 tax, would probably accomplish the same result. But in 
 Lowndes County, Alabama, out of a wliite male population over 
 twenty-one, of 1139 only 81 were illiterate. The same county 
 had a colored male population of over 6000, of whom more 
 than 4000 were illiterate, which would still leave a colored 
 majority greater than the combined literate and illiterate white 
 voters. How far the qualifications for residence and payment 
 of poll tax would alter this is uncertain. This same county, rely- 
 ing on this and other qualifications, registered only 39 colored 
 voters in 1902.^ It may be granted that certain classes of the 
 negroes are not fitted to exercise the suffrage. But it is sub- 
 mitted that qualifications could be devised which, applied 
 equally to both races, would disfranchise the unfit in both 
 races and yet would probably leave a safe majority for the 
 white race.- 
 
 All states except Iowa disqualify certain classes. The obvi- 
 ously unfit, such as the insane, paupers, and persons under 
 guardianship, are generally disqualified. Seventeen states dis- 
 qualify for bribery ; several states for election crimes.^ Some 
 of the Southern states disqualify for crimes to which the 
 colored race is peculiarly prone, thereby still further insuring 
 white supremacy. It is obvious that persons in these classes are 
 hardly fit to be charged with the expression of the public will 
 of the state, and little criticism can be urged even against those 
 states which single out the delinquencies of a particular race. 
 
 The intent of the Fourteenth Amendment was to assure man- 
 hood suffrage. Such a standard prevails in New York State, 
 where, as Professor Holcombe shows, before the Nineteenth 
 Amendment, as a rule 76 per cent of the adult male citizens 
 voted. In Massachusetts, where there is an educational quali- 
 fication, 65 per cent voted ; in North Carolina and South Caro- 
 line, 1 7 and 1 5 per cent respectively ; in Oregon, 59 per cent ; 
 
 'See W. E. B. Dubois, "The Social Effects of Emancipation," in the 
 Survey, February i, 1913, pp. 570-573. For these and other tables see 
 A. N. Holcombe, State Government in the United States, p. 147. 
 
 -P'or further discussion of this see J. C. Rose, "Negro Suffrage," in 
 American Political Science Kevieiv, Vol. I, pp. 17-44. 
 
 ^New York and Wisconsin disqualify persons who bet on elections.
 
 THE ORGANIZATION OF THE ELECTORATE 45 
 
 and in California and Washington, deducting the probable 
 
 percentage of women voters, about 39 per cent.^ 
 
 All states have some requirements for the registering of Effect of 
 
 ,r 1 . ^ • 1 -i registration 
 
 voters, and as registration in itself may debar certain classes, it 
 perhaps should be included among the qualifications for voting. 
 In New York State, with free manhood suffrage, 88 per cent of 
 the male population were registered ; in iNIassachusetts, which 
 has an educational qualification, 80 per cent ; in Florida, where 
 there is a tax-paying qualification for the purpose of disqualify- 
 ing the negroes, 42 per cent ; in Louisiana only 43 per cent. The 
 question arises whether a literary qualification is effective in 
 producing a proper electorate. In Massachusetts only 4 per cent 
 of the adult male qualification were disfranchised because of such 
 a test, while 13 per cent were debarred by failure to register.- It 
 would thus seem that registration,particularly if required annu- 
 ally, as in New York, were a better test for interest and readiness 
 to take part in the affairs of the state than an educational test. 
 
 Unless the election is for a state officer, chosen by the entire Election 
 electorate of the state, the voters are combined in districts. 
 Much more attention has been given to the qualifications for 
 suffrage and the extension of the franchise than to the effect 
 of the grouping of the voters in constituencies. If, however, 
 these voters are combined into unfair or artificial constituen- 
 cies the popular will may be defeated. The most obvious 
 example of this is in the composition of certain districts for 
 the election of congressmen. Some states, by skillful ''gerry- 
 mandering," have been able to insure a majority for a party 
 which did not express the will or desire of the people who 
 would naturally be associated together.^ Ideally, an election 
 district should be compact, equal in size to other election dis- 
 tricts, and should have some self-consciousness. As a matter 
 of fact, election districts vary from an entire state to a ward 
 of a city. In general, every voter acts with the citizens of 
 
 lA. N. Holcombe, State Government in the United States, pp. i44-i4S- 
 
 2 Ibid. p. 14Q. 
 
 3 See P. S. Reinsch, American Legislatures and Legislative Methods, 
 p. 201; also J. R. Commons, Proportional Representation, chap, iii, for 
 maps and tables.
 
 46 STATE AND MUNICIPAL GOVERNMENT 
 
 the entire state in the election of governor and state officers. 
 He also belongs in the congressional district, the state sena- 
 torial district, the county, the state representative district. 
 Thus, he is associated with different groups of voters — varying 
 from the small number in his ward to the entire voting popu- 
 lation of his state — in order to choose representatives, judges, 
 and executive officers and for purposes as diverse as school 
 administration, the decision of constitutional questions by the 
 courts, the management of the county jail, and the national 
 affairs of the federal government.^ It is impossible that elec- 
 toral districts made simply upon a geographical basis or upon 
 the basis of population could adequately perform these tasks. 
 Here it is that the party system intervenes and furnishes a 
 guide and directions for the varied actions which the voters are 
 called upon to perform in their different capacities. 
 Definition A political party may be defined as a durable organization of 
 party voters, holding similar principles and agreeing upon a common 
 
 policy, which attempts to control the state by means of the 
 election of their candidates. A political party exists primarily 
 for the purpose of carrying elections. It thus differs from groups 
 organized to propagate definite ideas. A political party is sup- 
 posed to have certain common principles as to what the state 
 should be and do, but too often these principles are vaguely and 
 generally expressed. A political party more often has a definite 
 policy, which it sets out to accomplish. To achieve this it may 
 attract persons who are not in full agreement with the principles 
 of the party. A political party is a durable organization ; that 
 is, it may vary in personnel and in character, but so long as the 
 party exists the organization continues. Finally, a political 
 party attempts to control the state and to administer the gov- 
 ernment, not in accord with the desires and wishes of all the 
 citizens of the state but with the desires and wishes of the party. 
 Government of this type is party government. 
 Legal defl- Formerly political parties were unrecognized by law. They 
 
 nition of , ^ ... 
 
 parties were voluntary organizations of voters subject to no special 
 
 lA. N. Holcombc, State Government in the United States, pp. 150- 
 160, flescribcs the nnincrous electoral districts lo whidi the president of 
 Harvard University belongs.
 
 THE ORGAxMZATION OF THE ELECTORATE 47 
 
 regulations of the state. This does not mean that they were 
 not subject to the laws which applied to all citizens, but that 
 the state took no cognizance of them as organizations. When, 
 however, the state began to extend its control over elections 
 to the extent of printing the ballots and determining the method 
 by which the names of candidates were placed upon the ballot, 
 it became necessary to make some legal definition for parties. 
 Various states have done this in different ways. Most states 
 define a party as a group which has cast a certain percentage 
 of the vote at a previous election. Such a group being a legal 
 party, it is relieved from some formalities and may place the 
 names of its candidates upon the primary ballot without filing 
 special petitions. 
 
 The functions of a party are threefold : first, it must select Functions 
 its candidates for office (that is, make nominations) ; second, " ^^^^^ 
 it must make a declaration of principles (that is, state its 
 platform) ; third, it must attempt to elect its candidates (that 
 is, conduct the campaign). To accomplish these ends a politi- 
 cal party must have a durable organization, continuing from 
 campaign to campaign. Formerly neither the organization of 
 the party nor the method of nomination was regulated by the 
 state. Elections have always been conducted by the state, but 
 few restrictions were formerly placed upon the method by 
 which the campaign was carried on. 
 
 States differ in their types of party organization. In fact, The organi- 
 
 - .... . • ^1 1 i •! r zationofthe 
 
 m the same state, different parties may vary in the details ot party 
 organization. Generally, however, in all parties and in all 
 states the organization has three common factors. Two of 
 these, the party committees and the party officers, are con- 
 tinuous; the third, the party convention, is temporary. 
 
 In every state each political party has a state central com- Party 
 mittee. This committee is variously chosen. Formerly in all 
 states, and still in some, the state committee is chosen by the 
 party convention. With the introduction of the direct pri- 
 mary, later to be discussed, party committees are chosen by 
 the voters directly. Some states have combined these two 
 methods and allow the convention to designate certain mem- 
 bers while the electorate chooses others. In other states the
 
 48 STATE AND INIUNICIPAL GOVERNMENT 
 
 committee may be chosen by the voters, but is allowed, itself, 
 to coopt additional members. Elsewhere the committee may 
 be designated by the candidates nominated at the convention or 
 the primaries. The general tendency of recent legislation, 
 however, is to vest the choice of the party committee directly 
 in the electorate voting at the primaries. By so doing it was 
 hoped that the organization of the party would be more sub- 
 ject to the wishes of the members and be less likely to fall 
 under the domination or control of leaders who are less re- 
 sponsive to popular sentiment. It is difficult to determine how 
 far these aspirations have been realized. Largely because of the 
 indifference of the party members themselves, the leaders ap- 
 parently have little difficulty in naming the committee. There 
 is one obvious objection to this method. A committee chosen 
 at the primar}^ may be out of sympathy with the candidates 
 nominated at the same primary. There is less likelihood of 
 this happening when the committee and the candidates are 
 chosen at the same convention, and it becomes practically 
 impossible when the candidates are allowed to choose their 
 own committees. 
 
 Composition State committees are composed of delegates selected from 
 
 cSmmitteT o^ by local districts. There is no uniformity of practice. Thus, 
 in New York and IMissouri the congressional district is taken 
 as a unit; in Pennsjdvania, the state senatorial district; while 
 in some states the county is the accepted unit. In all, how- 
 ever, the state committee represents all sections of the state, 
 and in many states it is so large and cumbersome that its 
 functions are generally performed by a smaller body known 
 as the executive committee. 
 
 The func- The activities of the state committee are sharply divided. 
 
 thTstate During periods between elections the state committee seldom 
 
 comraittee: j^gg^s as a body, although its individual members are bv no 
 
 (i) Between ^ > o 
 
 campaigns means idle. Each one, in his own district, is supposed to 
 direct the spreading of propaganda to settle disputes and to 
 overcome local jealousies. He is expected to know what the 
 party members are thinking and to lead and direct the for- 
 mation of public sentiment favorable to the party. An ideal 
 state committeeman is a true leader within his district. He
 
 THE ORGANIZATION OF THE ELECTORATE 49 
 
 does not have to depend solely upon his native ability; he 
 is often the channel through which the state administration 
 distributes favors or offices, and thus he can reward the 
 faithful, strengthen the faith of the wavering, and even win 
 over the hostile voter. During this quiescent period the com- 
 mitteeman frequently attaches to himself voters who may be 
 of use in the coming campaign. 
 
 For the committeeman the election campaign begins even {2) Prepara- 
 before the nomination of the candidates. The state commit- nomination 
 tee, either as a whole or through the medium of its chairman 
 or its executive committee, very frequently is favorable to the 
 choice of certain candidates. In those states where the can- 
 didates are nominated by the convention, the committee as a 
 whole, or the individual committeemen, have been known to 
 pick men in agreement with them as delegates to the conven- 
 tion. In some states the committee is so powerful that it 
 practically names the candidates or chooses delegates com- 
 pletely under its control. Such delegates are sometimes called 
 ''hand-picked." 
 
 In the process of nomination the committee is responsible Activities 
 
 . . . 1 r ^1 f-T of the state 
 
 for the call for the primaries or conventions and for the hling committee: 
 
 with the state officers of the proper petitions for primary bal- (i) m the 
 
 process of 
 
 lots. Under the old convention system the committee was nomination 
 all-powerful in summoning the convention and determining 
 the temporary roll, and, as has been pointed out, through 
 the activities of its members it frequently dominated the 
 convention. 
 
 During the campaign the committee works with feverish (2) During 
 activity. It collects the funds necessary for the campaign and, campaign 
 in so doing, must scrupulously examine the source of such 
 contributions in order that it may keep within the law. The 
 committee serves as a general strategy board, plans political 
 meetings, dispatches speakers, formulates the policies for the 
 conduct of the campaign, and arouses enthusiasm. 
 
 The most important officer of the state committee is its The chair- 
 
 '^ J • J r ^^^ ^^^ the 
 
 chairman. In some states he is chosen by the candidate tor treasurer of 
 governor ; in others, by the committee itself. Presumably he is Jommfttee 
 always an expert, practical politician, and on him devolves
 
 50 STATE AND MUNICIPAL GOVERNMENT 
 
 Local 
 committees 
 
 County 
 committees 
 
 the duty of keeping harmony among and injecting energy 
 into the other members of the committee. Frequently he is 
 not onh' the most influential man on the committee but more 
 influential than all the rest put together. He is not merely 
 its executive agent; he is generally the directing force, with 
 the committee members as his aids. The treasurer of the 
 committee, in modern times, is generally a man of sterling 
 probity and unexceptionable reputation. He has charge of 
 the campaign fund. This is gathered generally by collectors 
 throughout the state, but the treasurer is held legally respon- 
 sible for the acceptance of contributions and the distribution 
 of the money.^ 
 
 Theoretically there is a political committee for every dis- 
 trict electing an officer. Thus, there are ward, city, and town 
 committees, county committees, state representative commit- 
 tees, state senatorial committees, and congressional commit- 
 tees. The most important of these, however, are the county 
 committees outside of New England and the city or town com- 
 mittees in New England. The county committees rank next 
 to the state committees in importance ; in New England, where 
 the town or city rather than the county is the political unit, 
 county committees are of little importance and their activities 
 are undertaken by the city or town organizations. 
 
 County or city committees have two functions. Primarily 
 they may be interested in the nomination and election of the 
 local officials — county commissioners, mayors, and so forth. 
 'I'hese functions will be discussed later. Yet from the point 
 of view of the state organization they are strictly subordinate 
 to the state committee. They and their oftlcers, receiving 
 directions and contributions from the state party committee, 
 conduct the campaign for the state officials under the direction 
 of the higher committee. Since, however, in local affairs the 
 local officers and organizations are apt to be influential with 
 the voters, and since in some states the ''county ring" domi- 
 nates the political life, these local committees cannot be ignored. 
 (Generally there is little possibility for friction, because the 
 leader in the county may be on the state committee or a close 
 
 ' See panes 83-87.
 
 THE ORGANIZATION OF THE ELECTORATE 51 
 
 friend and supporter of the state committeeman, or even, in 
 some cases, the mentor of the state committeeman. 
 
 The temporary element in the organization of a political Party 
 party is the party convention. This is summoned at stated 
 intervals in the political cycle — annually where the officers 
 are subject to yearly elections, biennially or even quadrenni- 
 ally where the officers are elected less frequently. Before the 
 institution of the direct primary the party convention was the 
 supreme governing authority in the party. Until the state 
 attempted to subject political parties to legal control, the 
 convention alone made the rules and regulations for the choice 
 of party officers besides nominating candidates and framing 
 the platform. Just as there may be party committees for 
 each constituency, so, in former times and still in some states, 
 conventions may be held for each district nominating or 
 choosing officers. 
 
 The most important convention, however, is the state con- The state 
 vention. This is composed of delegates chosen in different 
 ways from the various districts. In some states the county is (i)Compo- 
 
 . sition 
 
 the unit. In New England the town or city or even the ward 
 may be the unit. The delegates from districts of greater area 
 are more frequently selected by special conventions held for 
 this purpose. 
 
 In the organization of the state conventions the state com- (2) organi- 
 mittee was formerly all-powerful. It issued the call for the ^ 
 convention, but, in so doing, it did more than to fix the date. It (3) The can 
 determined the method by which the delegates should be chosen 
 — whether by primaries or subordinate conventions. It appor- 
 tioned the delegates to districts; this might be according to 
 population or according to party strength, as decided by the 
 rules of the party adopted at the previous convention. 
 
 Where the convention system is unaffected by the direct (4)Thetem- 
 
 porary roll 
 
 primary there is a routine procedure. When the delegates to 
 the convention are assembled the commiittee organizes the con- 
 vention. Each delegate presents his credentials; that is, a 
 certificate of the fact that he was duly elected at the primary 
 or subordinate convention to represent the party members of 
 his district. Frequently there are "contests"; that is, two
 
 52 STATE AND MUNICIPAL GOVERNMENT 
 
 (5) The 
 
 temporary 
 
 chairman 
 
 (6) Com- 
 mittee on 
 credentials 
 
 (7) Per- 
 manent or- 
 ganization 
 
 (8; The 
 work of the 
 convention 
 
 ^9) Com- 
 mittee on 
 resolutions 
 
 (lo) Plat- 
 form 
 
 delegates might appear from the same district, holding cre- 
 dentials from rival caucuses or subordinate conventions. It is 
 the duty of the committee to settle these contests after hearing 
 the claims on both sides and to seat the delegates who in its 
 judgment have the best claim. The result of these decisions is 
 embodied in the "temporary roll" of the convention — a list 
 of the delegates who are allowed to take part in the organiza- 
 tion of the convention. Rather often committees have decided 
 contests not upon the basis of justice but in order to obtain 
 delegates subservient to their control. 
 
 The chairman of the state committee calls the delegates to 
 order. The proceedings open with prayer and generally a 
 speech by the chairman of the committee, and then follows the 
 choice of a temporary chairman, who, in his turn, makes a 
 speech (frequently known as the keynote speech), which is 
 designed to rouse enthusiasm and possibly to direct the con- 
 vention along the lines desired by the state committee. 
 
 The temporary chairman next appoints a committee on 
 credentials, who, after reviewing the work of the state com- 
 mittee in seating contesting delegates, reports to the conven- 
 tion. Since the convention is composed only of those delegates 
 seated by the state committee, and the committee on creden- 
 tials is drawn from those delegates, the report of the commit- 
 tee on credentials generally supports the action of the state 
 committee and is usually ratified by the convention without 
 question. In other words, the temporary organization votes 
 itself the permanent organization of the convention. The 
 convention now being permanently organized, selects a per- 
 manent chairman, who accepts with a speech. Frequently, 
 however, the convention chooses the temporary chairman 
 as the permanent chairman, and the delegates are spared 
 further discussion. 
 
 A committee upon resolutions is formed whose duty it is 
 to prepare a series of statements embodying the principles of 
 the party and setting forth a declaration of its policy. These 
 resolves constitute the platform. The chairman of the com- 
 mittee on resolutions has generally been designated by the 
 state committee long before the convention was summoned,
 
 THE ORGANIZATION OF THE ELECTORATE S3 
 
 and his work has been carefully supervised by the leaders of 
 the party. Hence the actual work of the committee on resolu- 
 tions in framing the platform is largely illusive. Occasionally, 
 however, amendments are offered from the floor, although 
 these are rarely adopted by the convention. 
 
 Before the day of the direct primary, and in those states (n) Nomi- 
 where it has not been adopted, the next and, in many ways, 
 the most important duty of the convention was to make nom- 
 inations. These were made by delegates, who, as has been 
 shown, were often "hand-picked" by the state committee and 
 therefore susceptible to its direction. Although sometimes 
 waves of enthusiasm would sweep the convention, or the appeal 
 of a popular leader outweigh the desires of the state commit- 
 tee, in general the delegates would, to use the popular phrase, 
 "stand without hitching." As a rule the influence of the state 
 committee was all-powerful and few candidates whom they 
 actively opposed were nominated. 
 
 The convention in former times had one other duty — to (12) choice 
 choose the state committee and its officers. As has been committee 
 pointed out, this was not always done by the convention, and ^°^ officers 
 in those states which have adopted the direct primary system 
 they are now selected by the people directly. 
 
 Theoretically the convention system is the ideal way of Discussion 
 conducting party affairs. It is an example of representative vention°°' 
 organization ; it provides opportunity for the delegates from system 
 all parts of the state to meet in conference and, after hearing 
 arguments, to make their decisions upon the policy of the 
 party and to determine its candidates ; it gives a proper legiti- 
 mate scope for genuine leadership. State committeemen theo- 
 retically are local leaders. The convention system enables 
 these leaders to exert their influence in representing the popu- 
 lar opinion of their localities and to transmit into their locali- 
 ties the opinions of others. It gives the leaders an opportunity 
 to appeal to delegates from all over the state and for the 
 delegates, before casting their votes, to hear the opinions of 
 delegates from other communities and to listen to other 
 leaders. If, as the theory requires, the delegates were the most 
 representative party men of their districts, who, after hearing
 
 54 STATE AND MUXICIPAL GOVERX:\IEXT 
 
 arguments, reached a calm decision based upon evidence and a 
 genuine desire to further the good of the party, no better 
 system could be devised for the conduct of party affairs. An 
 examination of the actual working of the convention system 
 will show how far the practice departed from this theory. 
 Faults of Seldom are the majority of the delegates the best or even 
 
 the conven- , ■ i i- i t • i 
 
 tion system: the most representative members of the party. It is true that 
 (i) Char- probably no party convention was ever held that did not con- 
 
 acter of the . . , . , . , 
 
 delegates tain some of the wisest and some of the most representative 
 men, but the conventions generally attract at best mediocre 
 men. If the state committeeman is successful in naming the 
 delegates, he will see to it that, while there are several names 
 of outstanding merit, the mass will be amenable to his direc- 
 tions. This does not necessarily mean that the delegates are 
 of the type mentioned below, ^ but they are not men of force 
 and great independence of judgment. 
 
 ^2) Irregular Occasionally the proceedings of the convention have been 
 characterized by irregularity if not downright fraud. The 
 power of the state committee in passing upon the credentials 
 of the members has already been noticed. This power has 
 been too often abused in order to unseat delegates of whom 
 the convention was not sure and to seat those delegates who 
 would be compliant. In some instances a faction has gained 
 possession of the convention hall, locked thie doors, and pre- 
 vented the. other delegates from sharing in the proceedings 
 
 ■■ Of the delepatcs, those who had been on trial for murder numbered 
 17; sentenced to the penitentiary for murder or manslaughter and 
 served sentence, 7 ; served terms in the penitentiary for burglary, 36 ; 
 served terms in the penitentiary for picking pockets, 2 ; served terms 
 in the penitentiary for arson, i ; ex-Bridewell and jailbirds, identified by 
 detectives, 84 ; keepers of gambling-houses, 7 ; keepers of houses of ill 
 fame, 2 ; convicted of mayhem, 3 ; ex-prize-fighters, 1 1 ; pool-room pro- 
 prietors, 2; saloon-keepers, 265; lawyers, 14; physicians, 3; grain deal- 
 ers, 2; political employees, 148; hatter, 1; stationer, i; contractors, 4; 
 grocer, i; sign-painter, i; plumbers, 4; butcher, i; druggist, i; furni- 
 ture supplies, i; commission merchants, 2; ex-policemen, 15; dentist, 1; 
 speculators, 2 ; justices of the peace, 3 ; ex-constable, 1 ; farmers, 6 ; 
 undertakers, 3; no occupation, 71; total delegates, 723. — Reviexv of Re- 
 views, Vol. XVI, p. 322, quoted by 1' O Ray, An Introduction to 
 Political Partiis and Pracliial Politics (rev. cd.), ]). 128
 
 THE ORGANIZATION OF THE ELECTORATE 55 
 
 of the convention. Sometimes the chairman "gavels" through 
 a measure; that is, he announces that the "ayes" have carried 
 the motion, when, as a matter of fact, the motion is lost. At 
 best the conventions are not orderly. Even where a semblance 
 of order is maintained, the cheering and enthusiasm, which is 
 by no means always spontaneous, makes calm consideration 
 almost impossible. 
 
 The convention system, as do all representative systems, (3) Remote- 
 involves a delegation of power. The voter at the caucus or t^e voter 
 primary chooses delegates who may or may not perfectly 
 satisfy his will. When the delegates to a convention are 
 selected by a subordinate convention another step intervenes 
 between the voter and the final expression of the party will. 
 At the time of the caucus at which the delegates are chosen 
 the issues and candidates are by no means clear to the aver- 
 age voter. He has to express his opinion upon delegates of 
 whom he may know little, over whom he has little influence, 
 and who are put before him by the leaders. Theoretically a 
 group of voters may select any delegates they wish for the 
 convention ; practically, however, because of their indifference, 
 the organization presents to them the delegates of whom it 
 feels sure. 
 
 The criticisms just mentioned make it evident that the (4) Organi- 
 
 ., , ,11^1 • zation or 
 
 convention system is very susceptible to control by the organi- machine 
 zation. The organization may utilize its great powers to '^°°t''°i 
 secure the nomination of upright candidates ; ^ it may force 
 a compromise between divergent factions. In too many in- 
 stances, however, the organization manipulates the convention 
 so that it fails to express the real desires of the party mem- 
 bers and merely registers the decisions of the leaders, who can 
 safely trust the voters, after their resentment has died down, to 
 ratify their choice because of loyalty. In not a few instances 
 the organization has manipulated the convention for personal 
 and corrupt ends. In so doing it sinks to the level of a machine, 
 and the leaders become "bosses." 
 
 ^A former chairman of a state executive committee, in praising the 
 convention system as operated by his party, asserted that the conven- 
 tion system had never nominated a "crook."
 
 56 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 The 
 machine 
 
 Organiza- 
 tion of the 
 machine. 
 Tammany 
 Hall: 
 
 (i) The 
 county 
 committee 
 
 (2) The 
 
 executive 
 
 committee 
 
 A machine differs from an organization in that it operates 
 and directs the party, not for the interests of the party, but 
 for private or personal ends. In a machine the leader is the 
 boss. The boss need not be personally corrupt nor need the 
 machine or the boss engage in corrupt or illegal practices. As 
 has been shown, there is ample scope within the letter of the 
 law for the machine to misrepresent the rank and file of the 
 party and to manipulate the organization so that candidates 
 are nominated and elected who may be subject to influences 
 other than those of the party. 
 
 The organization of the machine may perhaps best be 
 studied from a description of the most efficient political organi- 
 zation in the United States — Tammany Hall.^ Tammany 
 Hall, which is the name of the headquarters of the local 
 organization of the Democratic party for New York County, 
 originated in 1789 as a benevolent social society. It soon be- 
 gan to take part in local politics and sided with the Anti- 
 Federalists. Although it still bears the title "Democratic 
 Republican," it has followed the fortunes of the Democratic 
 party — the lineal descendant of the Anti-Federalists. 
 
 The county committee for New York County is composed of 
 one delegate for every thirteen Democratic voters. Theoreti- 
 cally this should give the most perfectly democratic organiza- 
 tion in the world; practically it produces a huge committee 
 of more than eight thousand, so unwieldy that committee 
 action is impossible. Its very size appeals to the leaders of 
 the machine. Eight thousand members of the party are 
 honored by being chosen committeemen and therefore become 
 active workers. Each committeeman, moreover, is assessed 
 ten dollars, which gives the party treasury an initial sum of 
 more than eighty thousand dollars. 
 
 The real work of the committee is performed by the execu- 
 tive committee. This is a small body consisting of one, two, 
 
 ^The most recent account of the orRanization of Tammany Hall is 
 Riven by Gustavus Myers, History of Tammany Hall (2d ed.), New 
 York, 1917. Sec also P. O. Ray, An Introduction to Political Parties 
 and Practical Politics (rev. ed.), pp. 435-447, for an account furnished 
 by L. P. Kilroe, chairman of the general committee of the nineteenth 
 assembly district.
 
 THE ORGANIZATION OF THE ELECTORATE 57 
 
 or three leaders from each of the twenty-three assembly dis- 
 tricts into which New York County is divided. In theory 
 the members of the executive committee are chosen by the 
 committee members from their assembly district. However, 
 in practice a would-be executive committeeman prepares a 
 "slate"; that is, a list of names in the proportion of one to 
 every thirteen Democratic voters in his district with his own 
 name at the head.^ At the primary election, if this slate is 
 successful, not only are the names on the ticket elected to 
 county committees but the originator of the slate becomes the 
 "leader" of the district and a member of the executive com- 
 mittee. There is a rule of the county organization, however, 
 that the newly elected members of the executive committee 
 must be accepted by the retiring committee. This tends to 
 perpetuate the influence of the executive committee and to 
 make revolt against its decisions unlikely. 
 
 The members of the executive committee and the men inti- (3) influence 
 mately associated with it practically control the government executive 
 of New York City and are influential in state and even in committee 
 national politics. Primarily they are engaged in the election 
 of candidates and, as such, disburse the party funds. But 
 since they control the candidates who are generally elected, 
 they frequently determine the policy and action of the city and 
 county officials. The leaders and officials of Tammany Hall 
 are either members of the executive committee or have great 
 influence over its decisions. Although the executive committee 
 has certain officers, as do all party committees, the real power 
 has been frequently exercised by some unofficial person who is 
 able to control and dictate its action. He is the boss.- 
 
 ipor illustration of a ticket see C. A. Beard, "The Ballot's Burden," 
 in Political Science Quarterly, Vol. XXIV, p. 589. 
 
 2 The influence of Tammany Hall in New York City politics has 
 somewhat declined. The extraordinary growth of population in the 
 outlying boroughs has tended to reduce the influence of Manhattan. 
 With the changed character of immigration the Irish no longer have 
 their dominating influence, and the Socialist party more strongly appeals 
 to the East Side population. The abolition of the saloon may also be 
 expected to decrease Tammany's influence still further. See C. A. Beard, 
 American Government and Politics (3d ed.), p. 663.
 
 58 STATE AND MUNICIPAL GOVERNMENT 
 
 (4) District The members of the executive committee occupy a dual 
 leaders position. Their duties on that committee have already been 
 
 described, but they have other duties even more important. 
 These are connected with their own districts. Each district 
 leader must be the most influential member of his party within 
 his district. To be such he must be continually active. He 
 must attach to himself personally the voters of his district. 
 For this he must confer countless favors and be ever ready 
 to help his constituents. He is the most charitable of per- 
 sons — generous with his own means and prodigal with the 
 resources he may control. Not only is he given to charity, 
 but he is the center of the social life of his district and gen- 
 erally the patron of the political club where the members of 
 the party seek relaxation. He not only knows the mind of 
 his district but must be able to anticipate it, to guide it, and, 
 in rare emergencies, to control it. Too often his means come 
 from sources not altogether legitimate.^ 
 
 (5) Election The assembly districts are divided into election districts, or 
 cap ains pj-gcincts. In each of these there is a minor leader known 
 
 as the election captain. His duties and functions are analo- 
 gous to those of the district leader, but he operates within a 
 smaller sphere, since his resources are not so great and he is 
 forced to subordinate himself to the will of the district leader. 
 
 (6) The "The workers" is the name given to the active members of 
 the party. They are controlled by the election captains or 
 district leaders. They often receive actual cash payment for 
 their services in "getting out the vote" or in aiding regis- 
 tration. Every party must depend upon party workers, paid 
 or unpaid. In a machine, however, almost the only bond be- 
 tween the worker and the party is the money paid. The 
 workers frequent the political clubs of the district, where they 
 gather inspiration and receive their orders ; they permeate the 
 life of the district, spreading the opinions of the leaders and 
 captains and bringing to their superiors' attention likely recruits 
 or possible symptoms of discontent. 
 
 J For a description of an imaginary day of the typical assembly dis- 
 trict leader at work see C. A. Beard, American Government and Politics, 
 
 P- 579- 
 
 workers
 
 THE ORGANIZATION OF THE ELECTORATE 59 
 
 As has been described, the political system of the states is Reasons for 
 complex. In order that the electorate may ultimately express ence of the 
 its will, many things have to be done and many requirements ^^^^o"^.' 
 met. The ordinary man voter is busy about his own affairs — piexity of 
 
 , , . . the political 
 
 too busy to remember the date when the nomination papers system 
 for the primary must be filed, too busy to circulate the neces- 
 sary petitions, too busy to make sure that there are enough 
 names on the ticket for the many offices to be filled. The 
 party organization performs this for him. The active members 
 in the party organization are experts in the complicated pro- 
 visions of the election laws. They know what must be done, 
 how it must be done, and when it must be done. The average 
 voter does not. 
 
 Added to the complications of the process of election is (2) Fre- 
 the fact that elections take place almost annually. Not only elections 
 must arrangements be made for this annual affair, but in 
 certain states the work of the active politician must begin for 
 the next election almost as soon as the officer chosen at the 
 preceding election has taken his seat. This requires almost 
 constant activity on the part of someone. By common consent 
 it has been delegated to the organization of the party. 
 
 Not only are elections frequent, but at each the voters must (3) Muiti- 
 express their opinions upon a multitude of candidates. In candidates 
 some state elections there may be twenty or thirty officers 
 chosen at a single voting. The mass of the electorate is vitally 
 interested only in the higher officers or the members of the 
 state legislature. Little attention is paid to the selection from 
 the candidates for the other offices. Yet the party must have 
 candidates for these offices. The average voter delegates their 
 selection to the organization, rather than to perform the bur- 
 densome task of securing candidates and seeing that the neces- 
 sary requirements are fulfilled for placing their names upon 
 the ticket. 
 
 The officers of the successful party have considerable pat- (4) Patron- 
 ronage at their disposal. Before the days of civil-service re- ^^^ 
 form and competitive examinations this was unblushingly put 
 at the disposal of the leaders and party workers. Civil-service 
 reform has somewhat checked this practice. Nevertheless
 
 6o STATE AND MUNICIPAL GOVERNMENT 
 
 Why party 
 organiza- 
 tions 
 
 sometimes 
 become 
 machines 
 
 the successful party still has at its disposal many appoint- 
 ments to offices exempt from the rules. Not only has the 
 winning party patronage, but its officers frequently have it in 
 their power, through the award of contracts, the grant of fran- 
 chises, and the control of the state funds, to reward their sup- 
 porters. Also, in their discretionary administration of the law 
 they may hamper even the legitimate activities of certain cor- 
 porations. Thus it may happen that certain interests with no 
 desire to profit by illegal acts will contribute to the support of 
 a machine in order to insure the election of friendly officials. 
 Other interests may be frankly corrupt and, contribute to the 
 support of a machine in order that they may benefit by the 
 illegal acts of the officials controlled by the machine or gain 
 immunity for their own illegality. 
 
 Party organizations are necessary, but they are not neces- 
 sarily bad. Even at the worst a most tyrannical party organi- 
 zation accomplishes many functions which the ordinary voter 
 would be unable to perform. The very burden on the elec- 
 torate tempts the organization to become a machine. By its 
 control of the officers of the state it controls the policy and 
 dictates the action of the government for its own end. This 
 temptation is recognized by persons and interests who desire 
 special favor from the government. Thus it happens that a 
 necessary and a good instrument has in many states been 
 prostituted to selfish and corrupt purposes.
 
 CHAPTER IV 
 THE ELECTORATE IN ACTION 
 
 The Primaries 
 
 In order to ascertain whether the voters have met the quali- Regis- 
 fications for suffrage, and to be sure that none but those *'^*^'°° 
 qualified actually vote, some system of registration is neces- 
 sary. In all the states there are boards of registration in each 
 voting district who enroll the would-be voters on their lists 
 and assure themselves that the requirements have been ful- 
 filled. This is done but once — in some states, upon the voter's 
 making his original application for enrollment or upon his 
 reaching the legal age. Thereafter the registrars and their 
 assistants are supposed to make a canvass and to remove from 
 the voting lists the names of those who have left the district 
 or who have died. In small communities this may be suf- 
 ficient, inasmuch as the members of the community are well- 
 acquainted with one another, but in larger communities the 
 door is open for fraud. Names once on the list are used by 
 persons who cannot meet the proper qualifications, and not 
 infrequently the voting list is scandalously padded. 
 
 To prevent these evils certain states have adopted for the Personal 
 larger communities a system of personal, annual registration, registration 
 The Pennsylvania laws of 1906 and 191 1 may be taken as 
 examples of a very stringent kind. According to these acts 
 the voter must give to the registration officers the following 
 information : 
 
 Name in full, occupation, street and number of residence, whether 
 he is a lodger, lessee, or owner ; if a lodger or lessee of only a por- 
 tion of the house, the location or number of the room or floor; 
 the length of residence in the district and State ; place of birth 
 and production of naturalization papers, if an alien ; evidence of 
 
 61
 
 62 STATE AND MUNICIPAL GOVERNMENT 
 
 the payment of taxes ; personal description, color, height, age, and 
 weight ; and the voter is required to sign his name in the registra- 
 tion books, if able to write. ^ 
 
 New York, in 1908, adopted a similar law for cities of over 
 a million population and required the voter to answer the same 
 questions on election day that he had answered at registration 
 should his right to vote be challenged. In the Southern states 
 which have attempted to disfranchise the negroes the registra- 
 tion officers are given so great a discretionary power that they 
 may enfranchise whites and disfranchise blacks. Particularly 
 is this true when applied to illiterate voters, who may satisfy 
 the qualifications by giving a reasonable interpretation of a 
 section of the constitution when read to them. In some cities 
 the police distribute and collect registration blanks for each 
 qualified voter. They are then turned over to a board of 
 registrars for their guidance in preparing the list. 
 
 The work of The Organization, or the machine, is active at registration. 
 
 zation in It is the desire of each party to have all its potential members 
 
 registration i-ggig^ered and to prevent its opponent from registering fraud- 
 ulently. It might be thought that the voters themselves 
 would be interested enough to perform this duty unaided, but 
 experience has shown that this is not the case. Where annual 
 registration is required, voters must be reminded of the neces- 
 sity, and certain ones transported to the place of registration. 
 In large cities the major parties sometimes employ experts to 
 guard against fraudulent registration. For example, in 1910, 
 the Republican committee of New York County spent $27,000 
 for this purpose.- A proper political organization will not 
 attempt to have names put on the list fraudulently, but a 
 machine is likely to do so. It gives the machine just so many 
 more instruments to utilize in the primaries and elections in 
 order to make sure that its purpose will be accomplished. 
 
 The primary In theory registration is a nonpartisan affair, and the first 
 formal act of the organized party is taken in the primaries. 
 
 ^Sec r. O. Ray, An Introduclion to Tolitical Tarties and Practical 
 Politics (rev. cd.), p. 302. 
 
 2Hcrl)(Tt Parsons, "Why a Poliliral Party Needs Money," Outlook, 
 Vol. XCV'I, p. 351.
 
 THE ELECTORATE IN ACTION 63 
 
 A primary may be defined as a meeting of the members of 
 the party to perform certain functions. It is not an assembly 
 of delegates like the convention, but, like the old New Eng- 
 land town meeting, is a primary assembly of the voters for 
 certain purposes. 
 
 At the primaries three functions are generally performed: Functions 
 (i) The party members may choose some of the officials of p„ji,ary: 
 the party. In the old days the party committees for the (i) chooses 
 smaller political units were chosen in the primaries, while even o^^cfais 
 now in some states the members of the state committees and (2) Nomi- 
 all subordinate committees are so chosen. (2) Primaries al- dfdates 
 ways nominate certain candidates. Formerly these were for (3) Elects 
 the less important offices for which no nominating conventions for^n^oml- 
 were deemed necessary. Where the direct primary is estab- yg^^^fng""' 
 lished it nominates for all offices. (3) At the primaries are 
 chosen the delegates for the nominating conventions. This 
 was its chief function formerly, but with the spread of the 
 movement for the direct primary and the decline of the con- 
 vention system it is less important.^ 
 
 The primaries are summoned upon the call of the committee organiza- 
 of the party. Before state regulation extended to party affairs primaries 
 the committee had almost complete power. At present, how- 
 ever, most states prescribe the days on which the primaries 
 shall be held, set the hours between which the primary may 
 take place, and still further regulate the procedure. 
 
 In former times the committee was sometimes known to irreguiari- 
 summon a ''snap" primary; that is, one without due notice, former 
 Committees have been known to organize and hurry through f^'^^^ 
 the proceedings of a primary without giving the party mem- 
 bers an opportunity to vote. In some cases more violent 
 methods were practiced, and rival factions would take posses- 
 sion of the primary and by force prevent their opponents from 
 voting. To prevent these practices most states subject the 
 primary to legal regulation. 
 
 lAs will be explained, the direct primary actually nominates candi- 
 dates, while the old-fashioned primary usually elects delegates to a con- 
 vention to nominate candidates. Where both the direct primary and the 
 conventions are used candidates may be nominated in both ways.
 
 64 STATE AND MUNICIPAL GOVERNMENT 
 
 (i) Regis- 
 tration 
 
 Procedure in At the Opening of a primary a chairman and certain officers 
 primaries ^^^ elected if these have not been previously designated by the 
 committee. Formerly, in New England, the primary had some 
 of the elements of the old town meeting, and debate was pos- 
 sible; but at present practically all that is done is to cast 
 and count votes. The officers of the primary supervise the 
 checking of the names of the voters and the counting of 
 the ballots. At the close of the primary the officers certify 
 the results to the proper state authorities, and the candidates 
 duly nominated appear on the ticket at the election, or the 
 party officials and delegates chosen at the primary receive 
 their credentials. 
 Party tests: Since a primary is a meeting of the members of a party, 
 it is necessary to devise some test to determine who shall vote. 
 Various practices have prevailed in the different states at vari- 
 ous times. But the most common may be grouped as follows : 
 The method of registration presents two types : In New 
 York, when the voter registers for election he fills out a blank 
 stating with which party he intends to cooperate. In Massa- 
 chusetts registration is accomplished by the voter's asking 
 for the ballot of a particular party, thereby automatically 
 enrolling himself in that party. In either type of registration 
 the voter may not attend the primary of another party nor 
 change his enrollment except by making a written declaration 
 of change at a specified time — thirty, sixty, or ninety days 
 before the date of the primary. The second method of deter- 
 mining party allegiance is to administer an oath to the appli- 
 cant. Ordinarily the members of the party are known to the 
 primary officials and in most cases are allowed to vote without 
 question. When, however, they suspect that the applicant is 
 not a member of the party, some states allow them to decline 
 to receive his vote unless he takes an oath to the effect that- 
 he has not attended the primary of another party and that 
 he expects to support the ticket nominated at this primary. 
 In Rhode Island and some of the Southern states admission 
 to the primary is entirely in the hands of the party organiza- 
 tion, 'ihe state allows the party to make such rules as it 
 thinks proper. 
 
 (2) Oath 
 
 (3) Party 
 rules
 
 THE ELECTORATE IN ACTION 65 
 
 In small communities, where the voters are known to one Merits and 
 another, the primary system has many merits. It enables the p^"mary ^'^^ 
 voters to come together and, after discussion, to make their system 
 selections. But this ideal system was seldom realized. The 
 more substantial or intelligent citizens were apathetic and dis- 
 liked to mingle with the mass of voters. Attendance at the 
 primaries was extremely small, varying from i to 10 per cent 
 of the voters. It must be confessed, moreover, that at times 
 the primaries were so disorderly that decent citizens felt out 
 of place. Largely because of the apathy of the good citizens 
 the primaries fell into the hands of the professional politicians 
 or of the machine or ring. They dictated the names to be 
 nominated; they "ran" the primary; they "made the slate"; 
 and, since the primary was generally attended by few beyond 
 the supporters of the machine, the ring was generally success- 
 ful. Because of these evils and because of the perversion of the 
 convention system a new method was devised by which it was 
 hoped that decent citizens might be induced to take part in the 
 nomination of the candidates and that the party might be 
 made subject to popular control. This was the direct primary. 
 
 As has been seen, the chief function of the old primary The direct 
 was to choose delegates to the conventions. The new direct p"™^^^ 
 primary at its meeting actually nominates the candidates of 
 the party for positions to be filled at the coming election. In the 
 old system the party officials were generally chosen for the 
 more important committees at conventions ; in the new system 
 the voters chose these officials directly. It is an attempt to 
 put into the hands of the voters the choice of their candidates 
 and the officers of the party without the mediation of the 
 convention. To sum up, the old primary was but a cog in the 
 nominating machinery. It chose delegates to a convention to 
 nominate the candidates. The new direct primary is the nomi- 
 nating machine. It, by itself, without the mediation of the 
 convention, nominates the candidates. When the convention 
 is used with the direct primary it is not used for nominations, 
 although some may be made, but to frame the platform or for 
 some other purpose. The direct primary diminishes, if it does 
 not destroy, the necessity of the convention.
 
 66 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 state 
 control 
 
 Procedure 
 
 Open and 
 
 closed 
 
 primaries 
 
 Another difference between the direct primary and the for- 
 mer system is seen in the extension of state control. Formerly 
 the party officials were responsible for the conduct of the 
 primaries, and the officials or interested candidates for the 
 preparation of the ballots. Under the new system there are 
 elaborate state laws prescribing the organization and procedure 
 of the primaries, and the ballots are prepared and printed at 
 public expense under the supervision of officers who, in per- 
 forming this function, are supposed to be nonpartisan. 
 
 Nomination by direct primary is accomplished by several 
 steps. The names of the candidates are placed upon the pri- 
 mary ballot as the result of petition. These petitions require 
 a number of names of bona-fide registered voters, varying in 
 proportion with the importance of the office.^ The signatures 
 on petitions must be submitted to the registrar of voters or 
 some other official who certifies their correctness. The ballot 
 is then prepared by the proper authority — the secretary of 
 state for state officials ; the city or town clerk for municipal 
 or town elections. In all cases the ballot is of the so-called 
 Australian type, which requires the voter to mark the names 
 of the candidates for whom he desires to vote.- After the 
 ballots have been counted and the result certified, they are 
 returned to the designated authority and preserved against the 
 possibility of a demand for a recount. In the direct primary 
 there is no opportunity for discussion ; it is nothing more nor 
 less than a preliminary party election. 
 
 There are two kinds of direct primaries — open and closed. 
 At the open primary any qualified registered voter may take 
 part. It is therefore not a meeting of the members of the 
 party held prior to the election to nominate candidates, but a 
 preliminary election. At the closed primary only the members 
 of the party are admitted. Party allegiance is determined by 
 
 1 Sometimes a percentaRC of the registered voters is required, but in 
 Massachusetts it is a fixed number — for state officers a thousand voters; 
 for municipal officers and town officers not less than five voters for each 
 ward in the district. See C. A. Heard, American Government and Politics 
 (3d ed.), p. 3Q3, for a discussion of methods by which names are placed 
 on the ballot and their order. 
 
 -See pages 92-99.
 
 THE ELECTORATE IN ACTION 67 
 
 some sort of test. Could a test be devised which would not 
 defeat the advantages obtained by the secrecy of the ballot, 
 the closed system would be ideal. If a primary is a meeting 
 of the members of a party, it certainly should be confined to 
 party members. This theoretical conclusion is reenforced by 
 experience under the open primary system. Cases have been 
 known where a party machine, fearing defeat, has boldly ad- 
 mitted members of an opposing party to vote in its primary 
 in order to perpetuate its rule. The closed primary attempts 
 to prevent such action and to make the primary what it should 
 be — not a preliminary election, but a meeting of the members 
 of the party to choose the candidates of the party for the 
 coming election. The weight of evidence and experience seems 
 to incline to the closed primary. The argument that it de- 
 stroys the secrecy of the ballot by compelling the voters to 
 disclose their party affiliations has little merit. No voter need 
 take part in the primaries, and those voters who do should cer- 
 tainly be willing to accept the responsibility and the publicity 
 of being declared party members. The arguments against the 
 closed primary are in fact aimed at party government and 
 are directed towards the establishment of some method of 
 nonpartisan nomination. 
 
 The obvious evils of the partisan method of nomination have Nonpartisan 
 
 ... rT^i , , primaries 
 
 led to advocacy of nonpartisan primaries. Ihese have been 
 attempted in municipal affairs, where at times the separation 
 of state issues from city politics has seemed desirable. The 
 system, however, was first applied to the nomination of candi- 
 dates for judicial offices, since it was evident that the party 
 primary, as employed for the selection of judges, was even 
 more unfortunate than their nomination by convention. Par- 
 tisan appeals were out of place in the determination of a 
 candidate for the bench. In 1913 three states adopted this 
 method^ and other states followed their example.- In some 
 states the law provides that voters at all primaries shall receive 
 a special ballot on which the names of the candidates for 
 
 1 California, Ohio, Washington. 
 
 ^Minnesota, 1912; Idaho, Iowa, Kansas, Missouri, Nebraska, Penn- 
 sylvania, 1913.
 
 68 STATE AND MUNICIPAL GOVERNMENT 
 
 judicial offices are printed and that each voter shall be allowed 
 to vote for but one. The names of the two candidates for each 
 office who receive the highest vote are then placed upon the 
 ticket. In 1913 the nonpartisan primary system was adopted 
 in California for county offices and in 191 2 for the candidates 
 to the state legislature in Minnesota. 
 The merits The obvious advantage of the nonpartisan primary is that it 
 nonpartisan does away with the tests of party membership. It relieves 
 primary jj^g State from the responsibility of preserving the integrity of 
 the parties. It enables voluntary organizations to put their 
 candidates on the ballot on the same terms as the party organi- 
 zations, nominees no longer having the advantage of bearing 
 the party designation. The obvious disadvantage is that it 
 strikes a blow at the party system. Party organizations and 
 even machines are held responsible for the candidates they 
 select. The average voter frequently needs and welcomes the 
 advice which comes to him from the official indorsement of a 
 candidate by a party committee or convention. Those who 
 regard parties as the source of many of the evils of government 
 welcome the introduction of the nonpartisan primary. Those, 
 however, who believe that parties are necessary and oftentimes 
 helpful instruments in the process of election deprecate any- 
 thing which injures their influence. They therefore condemn 
 the nonpartisan primary. 
 The effect The movement for the direct primary has spread throughout 
 rect primary the United States.^ This movement was bitterly attacked at 
 first by the organizations and enthusiastically welcomed by 
 reformers. It has been in operation a sufficient length of time 
 to make an estimate of its merits and faults possible. 
 Merits and The direct primary was enthusiastically hailed by those who 
 
 faults of , . .._,,,. 
 
 the direct resented the power of the party organization. The selection 
 
 primary: ^j committees in conventions and the action of the conventions 
 
 themselves seemed to take the control of the party out of the 
 
 ^AII but Connecticut, Delaware, North Carolina, New Mexico, and 
 Rhode Island have direct primaries of some description. In Alabama, 
 Arkansas, Georgia, South Carolina, and Texas these are held under 
 party rule and not made compulsory by statute. — American Year Book 
 (1920), p. 209
 
 THE ELECTORATE IN ACTION 69 
 
 hands of the voters and to rest it in the hands of a select few d) Democ- 
 who appeared almost irresponsible. This distrust was strength- party 
 ened by certain notorious instances where the party organiza- ™^chinery 
 tion totally misrepresented the desires of the voter. It seemed 
 that if the voters could choose the party officials directly at 
 their primary meetings they would control the party organiza- 
 tion and its destinies; that they would "break the power of the 
 organization." Where the organization was a corrupt machine, 
 misrepresenting the desire of the voters, this was a laudable 
 purpose. Where, however, a true political organization existed, 
 although beyond the immediate control of the voters, yet re- 
 flecting their desires, it would be a misfortune to break such 
 an organization. The complicated processes of nomination 
 and election necessitate organization. Organizations require 
 time and experience in order to perform their tasks satisfac- 
 torily. Constant change weakens the organization and defeats 
 the very purpose for which it was created. 
 
 The high hopes of the reformers — that the direct primary [Direct 
 would destroy the machine — have been disappointed. It is ^"0*01"^^ 
 
 true that the organizations have been hampered in their work, destroy the 
 ° ^ ' power of the 
 
 and in some instances they have been made more directly machine] 
 responsible to the voters. However, in those communities 
 where a machine existed the machine has been able, with a 
 little more effort, to control the primaries almost as success- 
 fully as it controlled the convention. Under the old system of 
 primaries only the loyal party members attended. Under the 
 new system, while a larger percentage of the voters are present, 
 the majority attending are still the faithful supporters of the 
 organization. The merit of the direct primaries in destroying 
 the machine is potential rather than actual. 
 
 The advocates of the direct primary claimed that it would (2) Encour- 
 
 , , , , ~, . ages active 
 
 encourage more active participation by the rank and tile in work 
 the affairs of the party. In a large measure experience has 
 substantiated this claim. It must be confessed, however, that 
 in many communities the activities of the rank and file are 
 confined to signing the nomination papers which are placed 
 before them by the organization or, at most, to attending the 
 primaries and marking the tickets prepared for them by the
 
 70 STATE AND MUNICIPAL GOVERNMENT 
 
 organization. Nevertheless it is frankly admitted that since 
 the process of getting the name on the ticket, and thus be- 
 fore the voters, is open to any member or group of members 
 of the party, there is the opportunity freely given to all mem- 
 bers to express their opinion and to engage in the direc- 
 tion of the affairs of the party. This has its good and bad 
 effects. If the rank and file are genuinely interested in party 
 affairs and are willing not merely to be active but to assume 
 a measure of responsibility, the direct primary has accom- 
 plished a great deal. As has been shown, an oppressive organi- 
 zation of a party or a political machine can exist only on the 
 sufferance or desire of the members of the party. Indifference 
 or unwillingness to perform the necessary drudgery of a party 
 organization more frequently permits machine rule than does 
 the actual desire for corruption on the part of the voters. If 
 the members of the party are genuinely interested in the party 
 and are willing to do their share in managing its affairs, then 
 the direct primary is an excellent device to enable them to 
 express their desires and assume responsibilities. If, however, 
 activity means mere meddlesomeness, a desire to exercise 
 power without assuming responsibility, the direct primary may 
 be the means of ruining a good political organization. Even at 
 their worst, party organizations accept the responsibility for 
 their acts and attempt to carry out with considerable consist- 
 ency the policies for which they stand. Organizations are more 
 stable than temporary coalitions of voters. 
 (31 Secures Another claim of the advocates of the direct primary was that 
 the system would secure better men as party candidates. The 
 evidence on this point is conflicting. Without doubt the direct 
 primary gives to the party members an opportunity to reject 
 a corrupt candidate who, under the convention system, might 
 be foisted on the party at the dictates of a machine. Too many 
 times machines or organizations have been guilty of this. Yet 
 in those states where the organization existed for the genuine 
 advancement of the party interests, this accusation could sel- 
 dom be proved. There the organization, not from any superior 
 virtue, but from shrewd political wisdom, scrutinized with care 
 the qualifications of all the candidates. The direct primary 
 
 better men
 
 THE ELECTORATE IN ACTION 71 
 
 does not give this opportunity. Without doubt the voters do 
 examine with some care the candidates for the more important 
 offices, but the candidates for the minor offices are frequently 
 unknown to the rank and file. They are put on the ticket as 
 the result of the activities of their friends, and the average 
 voter is sometimes confronted by the names of several candi- 
 dates, about none of whom does he know anything. Theoreti- 
 cally, the voter should have informed himself concerning the 
 merits of these candidates; practically, he does not. It has 
 thus happened in at least one state that such an important 
 officer as the state treasurer received the party nomination 
 through the resemblance in the spelling of his name to that of 
 the former treasurer, and the voters unconsciously nominated 
 and later elected, under misapprehension, an officer whose 
 administration was so dubious that he was forced to resign 
 before his term had expired. 
 
 The direct primaries bring out a larger vote wherever there (4) Brings 
 is a contest. The evidence on this point is overwhelming. Hl^^ "^" 
 They give to the ordinary voter the opportunity directly to 
 express his opinion. In many communities this is eagerly 
 sought. Where the vote at the primary represents the intelli- 
 gent opinion of the voters, it is of great advantage, for it 
 strengthens the party and encourages the organization. Where, 
 however, the vote is unintelligent and ignorant, little advan- 
 tage can be seen in increasing its size. The intelligence of 
 the vote, rather than its size, should be sought. 
 
 The direct primary is really a preliminary election within (5) its de- 
 
 -,.,,,. . , r J- cision final 
 
 the party. Like other elections, it leaves no room for discus- 
 sion and compromise, but its action is final and conclusive. 
 In the convention system the merits of the candidates may be 
 discussed and their chances canvassed, and the various votes 
 which are taken for nomination may show the relative strength 
 of the candidates and disclose their strength and weakness. 
 The best candidate or the best ticket is not always the one 
 which appeals to the greatest number. In making up a ticket 
 considerations of geography and of race and differences of 
 opinion concerning party policy must be considered. In the 
 convention these can be discussed, weighed, and compromised.
 
 72 STATE AND MUNICIPAL GOVERNMENT 
 
 Not so in the direct primary. x'\ppeal and argument, it is true, 
 precede the vote, but nomination by the direct primary is 
 is if the candidates were nominated at a convention where 
 every party member was a delegate and where the first ballot 
 was conclusive. 
 
 (6) Gives The criticism perhaps most frequently leveled at the direct 
 ioTde^^^^ primary is that it gives opportunity for a demagogic appeal, 
 gogues A^ candidate for nomination is pictured as traveling about his 
 
 constituency, appealing to the self-interest of the voters, and 
 promising favors in return for support. In some cases this 
 may be true. It is admitted, however, that in such instances 
 substantially the same appeals to the same motives may be 
 made by the candidates of the opposing parties once they are 
 nominated. It may well be doubted whether this accusation 
 has very much force. 
 
 (7) Prevents It is Said that the direct primary, involving as it does a 
 fronf con-^^ popular appeal directly to the voters, prevents the better class 
 testing Qf party members from attempting to secure the nomination. 
 
 This may be true, but it would seem that the contention is 
 without merit. If a candidate for public office is unwilling 
 to submit his record and to appear before his constituents, 
 he has little claim upon their support. Such men, when nomi- 
 nated by the old convention system, expected to be carried into 
 office by the momentum of the party organization. A more valid 
 objection and one which may deter a certain class of men is 
 found in the fact that the direct primary may require two 
 campaigns — one for nomination and a second for election. 
 This may justly be considered to impose too great a burden 
 upon candidates of a certain type. 
 
 (8) Involves Since nomination by the direct primary entails two cam- 
 expense paigns, it also involves a larger personal expenditure by the 
 
 candidates and thus may militate against the nomination of 
 candidates who have little means. Such candid^ites, when 
 nominated by the convention system, had their campaign ex- 
 penses paid by the party organization. In the matter of nomi- 
 nation the party organization cannot properly defray the 
 expense of one candidate and not of the other contestants. 
 Thus the expense must be borne either by the contesting
 
 THE ELECTORATE IN ACTION 73 
 
 candidates themselves or by their friends and supporters. This 
 gives the opportunity for certain groups or interests to make 
 their influence count to an unfair degree and works against 
 the chances of a contestant of few resources, unsupported by a 
 group of large means. In many states, however, the expenditures 
 of contestants for nomination are as carefully regulated by law 
 as those of candidates for election, and the criticism loses some 
 force. Nevertheless it must be admitted that the direct primary 
 has seriously increased the expense of the candidates. 
 
 In most states a plurality of votes cast is sufficient for (9) Danger 
 nomination. There is here a grave danger that the candidate by*the" 
 nominated may be only the choice of a minority of the party. ^^'^°^^^y 
 Thus it has happened not infrequently that groups within the 
 party have put on the primary ticket names of candidates for 
 whom there was little chance of success, for the sole purpose 
 of dividing the strength of their opponents. It has also hap- 
 pened that men of force and character have refused to contest 
 the nomination lest the division of their strength might result 
 in the choice of an inferior candidate. 
 
 Various methods have been attempted to avoid this. In the [safeguards 
 Southern states a rule has been introduced that the successful minority 
 contestant must receive an absolute majority. If none receives ^^^^^^^ 
 such a majority a second ballot is taken on the two highest 
 candidates. By the Iowa law of 1907 the contestants for party 
 nominations for the county, state-district, and state offices 
 must receive not less than 35 per cent of the total party vote. 
 In case no candidate receives this, nomination is made by a 
 regularly constituted convention. In the Idaho and Wisconsin 
 laws of 1909 and 191 1, respectively, systems of preferential 
 voting were introduced by which the voter marked his first and 
 second choices, and a majority of the votes was necessary for 
 the successful candidate. In Idaho the largest number of first- 
 choice and second-choice votes is required, in Wisconsin a ma- 
 jority of the first and second choices. It seems clear that some 
 such method should be introduced. The scheme in the South 
 of requiring a second election in case no candidate obtains a 
 majority puts too great an additional burden upon the already 
 overloaded electorate. The Iowa method may result in a
 
 74 STATE AND MUNICIPAL GOVERNMENT 
 
 return to the convention system with all its advantages and 
 evils. A system of preferential or proportional voting is the 
 ideal way to meet this evil. Although such systems are being 
 gradually adopted in Europe, the legislatures and electorates 
 of the United States seem to fear their apparent complexity, 
 and they have been adopted in but few instances, 
 (lo) Diffi- Nomination by the direct primary fails to provide for the 
 
 framing formulation of the principles for which the party stands. 
 pLatfornT Under the convention system this function was performed in 
 advance by the delegates who nominated the candidates. This 
 is practically impossible in the case of the direct primary. 
 Various attempts have been made to meet this deficiency. In 
 some states — New York and Massachusetts, for example — 
 conventions are still held where the principles of the party are 
 formulated and the platform drawn up. In such cases it can 
 happen that the candidates chosen at the primaries may not 
 be in harmony with the platform which the party has adopted. 
 In Wisconsin the formulation of the platform is left to a meet- 
 ing of the candidates and party officials chosen by the pri- 
 maries. A somewhat similar provision has been made in 
 Kansas. None of these is altogether satisfactory. A platform 
 can best be formulated in a committee chosen by widely dis- 
 tributed party representatives. Under the convention system 
 this was both theoretically and actually done. The drafting 
 of the platform and the nomination of the candidates by the 
 same body generally insured agreement. To leave the plat- 
 form to the convention and the nomination of the candidates 
 to the voters may, as has been said, result in a conflict of ideas. 
 To leave the formulation of the platform and the selection of 
 party officials to candidates chosen at the primaries insures 
 agreement of candidates and principles, but does not guaran- 
 tee satisfaction to the members of the party. If party plat- 
 forms were considered actually as important as they are in 
 theory these questions might constitute a serious indictment 
 against the system. Generally, however, the platforms framed 
 by the convention, the committee, or the candidates are de- 
 signed to attract votes and to consolidate criticism of oppo- 
 nents rather than to set forth a very definite party program.
 
 THE ELECTORATE IN ACTION 75 
 
 In 1912 South Dakota adopted a system which seems most (n) The 
 complicated if not "freakish," but which was designed to primary law 
 meet the criticisms discussed and to insure popular control of ^^^^o"^** 
 the machinery of the party, the choice of the candidates, and 
 the formulation of the platform. The legislature, in 19 13, 
 attempted to replace this law by one of a more orthodox type. 
 In 191 5 it succeeded, but in 1918 the Richards Law was 
 adopted through the initiative and referendum by a comfort- 
 able majority. The law provides in general for a closed pri- 
 mary with a party committee chosen by the party voters of 
 each precinct. The unique features are that it combines to a 
 certain extent the representative convention with the principle 
 of direct selection. In November of every odd-numbered year 
 precinct elections are held for the purpose of choosing one 
 member for the county committee and three county proposal 
 men. A county proposal meeting is held which chooses state 
 proposal men, who meet in December, propose candidates to 
 be voted on at the party primary, and frame a party platform. 
 Provision is made for the minority to offer candidates and 
 make minority proposals. After this meeting the county pro- 
 posal men are reconvened and indorse by vote the various 
 candidates and issues. In March occur the primary elections, 
 which are conducted according to the ordinary system of 
 direct, closed primaries. A novel feature is the provision for 
 the party indorsement of candidates for appointive positions. 
 Applicants for such positions may file their names with the 
 secretary of state, who submits them to the state central com- 
 mittee, which — acting "in public session and without sub- 
 committees," by open ballot and majority in vote — indorses 
 the candidates. Provision is also made for a party recall. 
 The expenses of this system are borne by the taxpayers. 
 Proposal men and party committee men receive mileage 
 at the rate of five cents a mile, and where candidates are 
 required to debate, a compensation of ten cents a mile is 
 given them. The expense of the publicity pamphlet is also 
 paid by the state.^ 
 
 ipor a discussion of the Richards Law see American Political Science 
 Review, Vol. XIV, pp. 93-105.
 
 76 STATE AND MUNICIPAL GOVERNMENT 
 
 (la) conciu- Many faults can be found in the direct primary system. 
 
 sions 
 
 These faults are both inherent and accidental, theoretical and 
 practical. Nevertheless, in spite of all criticism — criticism 
 which comes especially from the party organizations — the 
 direct primary commends itself to the rank and file of the 
 voters. It does give the opportunity for the democratic con- 
 trol of the party organization. It does afford a chance in a 
 very direct way to rebuke or overthrow a corrupt machine. 
 The fact that it does not always do so and that it sometimes 
 produces unsatisfactory results seems to weigh less in the 
 minds of the voters than the fact that the opportunity is theirs. 
 In spite of all criticisms which have been leveled, justly or 
 unjustly, against the system, no state adopting the system has 
 returned to the old system of nomination by party conven- 
 tions, except New York.^ With the recent increased emphasis 
 upon party regularity and the increased strength of party 
 organization the attacks upon the direct primary have been 
 redoubled. At present it seems not unlikely that in some states 
 the direct primary may be abandoned. 
 
 ^By a law signed May 4, 192 1, New York returned to the convention 
 system for the nomination of candidates for governor and United States 
 senators, and elective state officers and justices for the Supreme Court. 
 Candidates for representatives to Congress, for the state senate and 
 assembly, and for city and county offices will continue in general to be 
 chosen at the direct primaries by the enrolled voters.
 
 CHAPTER V 
 
 THE CAMPAIGN 
 
 A political campaign may be defined as an organized effort The 
 on the part of a political party to elect its candidates to office.^ 
 The purpose of the campaign is to arouse the enthusiasm of 
 the members of the party to the pitch that will lead them to 
 vote the party ballot at the polls. The campaign also attempts 
 to attract to the party the independent vote which exists in 
 every community ; that is, those voters who are not deeply 
 attached to any one party and who may be led to support the 
 issues or the candidates of any party which strongly appeals 
 to them. A third purpose is the attempt to gain their support. 
 Finally, a political campaign tries in various ways, some 
 subtle and some entirely open, to discredit and criticize the 
 candidates and principles of other parties. 
 
 Practical politicians have been known to speak of campaigns Kinds of 
 as "hoop la" or "hurrah" campaigns; that is, campaigns ™p ' °^ 
 where a noisy appeal is made to the emotions of the voters. 
 While such an appeal is never absent in any campaign, in 
 recent years its value is generally discounted. The direct an- 
 tithesis of the "hoop la" has been found in the "gum shoe" or 
 "still hunt" campaign. In a performance of this sort the at- 
 tempt is made to deceive the opponents into fancied security 
 and to convince supporters of the party by quiet and per- 
 sonal influence. This campaign may be very successful in 
 small communities, but in large constituencies it is hardly 
 possible in its extreme form. A campaign of education is 
 sometimes widely advertised. By this is meant that the 
 
 iFor a brief account of campaign methods see P. O. Ray, An In- 
 troduction to Political Parties and Practical Politics, chap. x. This is 
 briefly treated in Kimball, National Government of the United States, 
 pp. 129-135. For a more extended treatment see M. Ostrogorski, Democ- 
 racy and the Party System in the United States, chaps, ix, x. 
 
 77
 
 78 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 The man- 
 agement of 
 the cam- 
 paign 
 
 The relation 
 of the can- 
 didates to 
 the party 
 committee 
 
 emotional element is discounted, while spoken and printed ap- 
 peals are addressed to the voters. These appeals are nominally 
 addressed to the voters' intelligence. They seldom contain 
 palpable untruths, but more frequently present half-truths or 
 distorted statements of facts. While nominally addressed to 
 the intellect, these are really subtle appeals to the emotions. 
 Very rarely a campaign of vituperation is initiated in which 
 the parties and candidates make charges against one another, 
 sometimes with a basis of truth, but occasionally actually 
 libelous. Public sentiment in most communities is opposed to 
 such a method, and a campaign of this sort frequently reacts 
 upon its initiators. 
 
 The direction of a political campaign is almost entirely in 
 the hands of the organization. The party committee, as a 
 whole, is not generally active, although the individual mem- 
 bers are often consulted and have general oversight over the 
 campaign in their particular districts. The executive commit- 
 tee or some smaller subcommittee of the party committee 
 generally conducts the actual work of the campaign. Very 
 frequently, however, all threads are held by the chairman of 
 the party committee, who controls with almost despotic power 
 the activities of the committees, the subcommittees, and the 
 candidates. Acting with the party committee and, in some 
 cases, including some of its members are various subcommit- 
 tees, bureaus, and councils. These may deal with publicity, 
 with speakers, with the vote of the women, with the vote of 
 particular nationalities, or they may be organized to emphasize 
 some particular issue of the campaign. It should be remem- 
 bered, nevertheless, that all these are strictly subordinate 
 and have no independent resources aside from those of the 
 party committee. 
 
 In a perfectly running and well-organized campaign the 
 candidates and party committees work in harmony, but such 
 may not always be the case. This is true particularly either 
 where the party committees are chosen at the direct primaries, 
 which may or may not nominate candidates in harmony with 
 the committee, or where the candidates are nominated by one 
 method and the committees chosen by another. But even if
 
 THE CAMPAIGN 79 
 
 there is not complete harmony of purpose a pretense is main- 
 tained. In case of actual conflict between the candidates and 
 the committee the committee generally wins. This is because 
 of the expense involved in the campaign. Few candidates are 
 able to finance, independently of the party, their own cam- 
 paigns. Party resources are greater than those of individuals. 
 A second and more compelling reason lies in the fact that the 
 committee generally possesses the confidence of the active 
 workers within the party. Candidates at best are temporary, 
 while the organization of the party is permanent. 
 
 The most practical method of influencing the voter is by campaign 
 personal canvass and solicitation.^ This is very effective in ^j, personal 
 rural communities and may be carried on by the candidate solicitation 
 himself or by the members of the party committee. In larger 
 communities, however, such solicitation and canvass requires 
 an effective organization and the expenditure of considerable 
 sums. In the Republican party in Pennsylvania it is stated 
 that during a heated campaign every tenth or even every fifth 
 man becomes a party watcher for the purpose of learning the 
 political opinions and sentiments of the voters assigned to him. 
 He reports to superior officers, who, in turn, bring pressure to 
 bear upon a disaffected party member.- It is doubtful if such a 
 thoroughgoing organization exists in any other state, for in few 
 states is the Republican organization as efficient as in Pennsyl- 
 vania. In general, attempts are made to get at the sentiments or 
 opinions of the voters and to bring influence to bear upon them. 
 
 Printed appeals run all the way from post cards and circu- (2) Printed 
 lars sent to the voters, through newspaper articles and adver- ^^^^* * 
 tisements, to posters on billboards and appeals made by the 
 motion pictures. This is an extremely expensive proceeding. 
 It has been estimated that it costs five cents to send out a post 
 card and ten cents apiece to circularize the voters by means of 
 a letter. Advertising in magazines and newspapers and on 
 billboards and telegraph poles is more and more resorted to, 
 but is becoming increasingly expensive. 
 
 iSee, especially, P. O. Ray, An Introduction to Political Parties and 
 Practical Politics, chap. x. 
 
 2Jesse Macy, Party Organization and Machinery, pp. 121-122.
 
 8o STATE AND MUNICIPAL GOVERNMENT 
 
 (3) The 
 
 campaign 
 
 textbook 
 
 (4) Public- 
 ity pam- 
 phlets 
 
 (5) Rallies 
 
 and 
 
 speakers 
 
 Two special kinds of printed appeals must be noted. The 
 campaign textbook, which is designed primarily for use by 
 speakers and active party workers, contains the official docu- 
 ments of the party, the party platform, the nominating 
 speeches and exposition of the party services, — placing the 
 party in its most favorable light, — biographies of the candi- 
 dates, and some of their more striking speeches. Although 
 this textbook is designed primarily for the active workers in 
 the party, it is sometimes distributed among the voters. 
 
 Because of the expense of instructing the voters and the 
 recognition that the voters ought, nevertheless, to be enlight- 
 ened, an increasing number of states distribute information 
 at public expense. The first state to initiate this scheme was 
 Oregon. In the Oregon pamphlet each candidate must pay a 
 small fee for the use of at least one page and is allowed to 
 buy more space at cost. Each party also may buy pages. In 
 the publicity pamphlet are printed also the measures which 
 are to be voted on directly by the people, and include those 
 proposed by the popular initiative and those put before the 
 voters by the referendum. Interested groups may also pur- 
 chase space in the pamphlet and present arguments for and 
 against these measures. This idea of a publicity pamphlet of 
 some sort is spreading throughout the states.^ Other states 
 give information at public expense on the measures submitted 
 to the voters for decision. This generally involves sending to 
 each voter a reprint of the proposed measures.-' 
 
 In all campaigns meetings known as rallies are held. These 
 vary from small gatherings held in the wards and precincts, 
 addressed by local candidates or prominent citizens, up to the 
 large political meetings where the speakers are the principal 
 candidates and persons of state-wide or national reputation. 
 Not infrequently the national party is vitally interested in 
 carrying a state election, and may put at the disposal of the 
 state committee cabinet officers or influential members of Con- 
 gress. But whether these rallies are small or large they all 
 
 lAmonR the states employing this method arc Indiana, North Dakota, 
 South Dakota, Wyoming. -Massachusetts is an example of this type.
 
 THE CAMPAIGN 8i 
 
 have this in common — they attract mainly the members of 
 the party, and the appeal is made to confirm party loyalty and 
 to arouse enthusiasm rather than to convert the independent 
 voters or those of other parties. Generally the rallies are 
 of a cut-and-dried sort, and the enthusiasm engendered is 
 often palpably made to order. Rarely is the speaker ques- 
 tioned or, to use the English phrase, ''heckled"; in fact, 
 American audiences generally resent questioning, and the 
 police are frequently called to put out such a disturber. In- 
 formal political meetings are sometimes held on street corners 
 and in parks, where itinerant orators, known from the plat- 
 form they mount as "soap box" orators, address whatever 
 audience they may gather. In recent years very effective in- 
 formal rallies have been held at the noon hour around gates 
 of manufacturing establishments. Here the audience is gen- 
 erally not confined to the members of any one party, and the 
 speaker has the opportunity not merely to arouse enthusiasm 
 but to convert voters to his point of view. 
 
 In former days the torchlight procession made a most pic- (e) other 
 turesque method of appeal, but this has generally been dis- methods 
 carded for the daylight procession, where the marchers may 
 be seen and their personal influence made even more effective. 
 It is to be doubted, however, whether even this ever turns 
 many votes. Political clubs, ranging from the permanent asso- 
 ciations of a large city down through the ward or precinct 
 club to the temporary organization arranged for the campaign, 
 have considerable influence. They furnish a common meeting 
 place for members of the party, where enthusiasm may be 
 engendered and orders and directions given. Before the advent 
 of prohibition many of these clubs had their headquarters over 
 or near a saloon, and the saloon-keeper was not infrequently 
 the most influential man in the club, keeping in close touch 
 with some superior officer of the party. 
 
 Political campaigns are expensive. Even the most innocent use of 
 and high-minded campaign requires a large sum to finance its campaigns: 
 operations. Among legitimate expenses of the campaign may be ^'^ oncers 
 included rent for headquarters — not simply the headquarters
 
 82 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) Clerical 
 hire and 
 postage 
 
 (3) Personal 
 and travel- 
 ing expend- 
 itures 
 
 (4) Ex- 
 penses of 
 workers 
 
 ^5) Expend- 
 itures for 
 printed ma- 
 terial and 
 advertise- 
 ments 
 
 of the State committee, but of the party officers in the dif- 
 ferent cities throughout the state. An immense mass of corre- 
 spondence and bookkeeping is necessary now to conduct a 
 campaign. In some cases, for small communities, this is per- 
 formed by volunteer workers, but in general the burden is so 
 great that the committees employ a large office force of stenog- 
 raphers, secretaries, and clerks. With the increase of state 
 supervision over the party finances, the party committees are 
 obliged to keep careful and accurate books, which necessitates 
 the employment of expert bookkeepers and auditors. The 
 amount of mail matter which is distributed in a political cam- 
 paign is enormous. This is true even in those states where 
 publicity pamphlets are issued under state authority. Special 
 appeals to certain classes of voters are sometimes sent out at 
 the cost of from two to ten cents a letter. This, in New York 
 State, would involve the expenditure of from $35,000 to 
 $175,000 for each communication.^ In addition there is a vast 
 amount spent on telephones and telegrams. 
 
 Sometimes the members of the party committee give their 
 services and pay their own expenses ; more generally, however, 
 the traveling and hotel expenses of the committee are paid 
 from the party funds. This is practically always true of 
 the expenditures of the candidates for the principal state 
 offices. But in this case the candidates themselves often 
 contribute to the party fund. 
 
 The workers vary all the way from speakers, who are some- 
 times paid $100 or even as much as $1000 a night, down 
 through the fees paid to lawyers, writers, editors, or adver- 
 tising agents for preparing printed material, to the sum paid 
 to the canvassers and distributors of party literature. The 
 expenditure for printed material, including the cost of printed 
 circulars, handbills, posters, the campaign textbook, and space 
 bought in newspapers and magazines, involves an enormous 
 amount of money. A single-page advertisement in one issue 
 of a paper may cost $5000, but there is little objection to 
 this method provided it is open and aboveboard. To insure 
 this both federal and state laws have been passed directing 
 
 ^A. N. Holcombc, State Government in the United States, pp. 218,219,
 
 THE CAMPAIGN 83 
 
 that all paid political advertisements shall be so indicated and 
 signed by a party committee. A more insidious method is for 
 the party, through its committee or one of its members, to 
 purchase control of a newspaper and to bend the editorial 
 policy to its purpose. No objection can be taken to this pro- 
 vided it is known, and to this end the federal laws require the 
 periodic publication of the names of the stockholders of every 
 publication using the mails. 
 
 Included in the group of miscellaneous expenditures is a (6) Miscei- 
 variety of disbursements hard to classify — for bands and but- penditures 
 tons, for halls and bunting, for flags, banners, red fire, and the 
 like. To few of these can anyone validly object. The danger 
 lies in the amount and variety of the expenditures — to hire 
 a band or to give the contract for the manufacture of the 
 campaign button is perfectly proper, yet both of these proper 
 acts may be used to obtain votes illegitimately. 
 
 Illegitimate campaign expenses include the expenditure of illegitimate 
 money both for things which are morally wrong and for things expenses 
 which are forbidden by law. Bribery, of course, falls in the 
 first category, while payment for transportation to the polls 
 is an example of the second class. These will be more fully 
 discussed under the regulation of state campaign expenses. 
 
 The most obvious and least objectionable source of supply- sources of 
 ing the party funds is the contributions of the members of the ^^^ y "° s 
 party .^ No fault can be found with contributions from individ- 
 "uals^Hade for the purpose of meeting the legitimate expense 
 of a campaign in order that the party may realize its ideals. 
 Criticism, however, does justly arise when the contributions 
 are extorted under pressure. The appeal may be made either 
 to the hope of reward or to the fear of punishment. Before 
 the widespread introduction of civil-service reform, party 
 assessments were not infrequently made upon officeholders. 
 The demand was bluntly put: pay the assessment in order 
 that you may retain your office, for if the party is defeated, 
 you lose your job ; and if you don't pay, the party official 
 will discharge you. Not only were assessments made upon 
 
 iSee C. A. Beard, American Government and Politics (3d ed.), 
 pp. 667-672.
 
 84 STATE AND MUNICIPAL GOVERNMENT 
 
 officeholders but upon candidates for election, and it is on 
 record that at one time the candidates for judicial office in 
 New York were expected to pay to the party treasury between 
 $10,000 and $25,000. This comes dangerously close to pur- 
 chase of office. Theoretically, it may be difficult to distinguish 
 between the free-will contributions of interested members of 
 the party and the assessments levied upon officeholders, actual 
 and prospective ; practically, however, it is easy. The former 
 is allowable, the latter reprehensible. A question sometimes 
 arises whether a party should accept an unlimited amount 
 from any one contributor; abstractly, the contribution of an 
 individual should be limited only by his means and his in- 
 terests ; but, actually, if too large contributions are accepted, 
 the donors acquire an undue influence in the direction of the 
 party affairs. Thus party managers not infrequently pro- 
 claim that contributions will be limited to a comparatively 
 small amount, 
 contribu- Formerly contributions from corporations were eagerly 
 
 corporations sought by all parties and were lavishly bestowed, often given 
 to opposing parties by the same corporations. This source of 
 revenue was shut off by law as the result of the disclosures 
 following the campaign of 1904, where huge contributions 
 were made by certain corporations, particularly insurance com- 
 panies. Three objections to contributions from corporations 
 are obvious : In the first place, the money in the treasury of a 
 corporation belongs to the stockholders, whose political affilia- 
 tions are probabl}' varied and not unanimously in agreement 
 with the party which receives the contribution. Second, by 
 giving to both parties the corporation assures itself of influence 
 and protection whichever party is successful, and thus tends to 
 break down the bipartisan system. Third, the size of corporate 
 contributions was frequently so great as to give them undue 
 influence in determining the affairs of the party, and hence the 
 rank and file of all parties realized that the political system 
 was gradually being transferred from the control of the people 
 to that of a few wealthy individuals. 
 
 The most abominable source of party revenue, fortunately 
 not general throughout the United States, is found in the
 
 THE CAMPAIGN 85 
 
 protection of crime and vice. The disclosures of the Lexow 
 Committee showed to what an extent this was prevalent in New 
 York City in the last decade of the nineteenth century. Not 
 merely were regular tariffs established for saloons, gambling- 
 houses, and houses of ill-fame, but pickpockets actually paid 
 for the privilege of operating unmolested in certain localities. 
 
 Not until 1890 was any attempt made to regulate the use of Regulation 
 money in elections.^ Of course bribery and certain other of- moneyTn" 
 fenses were illegal by general statute law, but there were no campaigns 
 special laws for limiting the sources from which money might 
 be collected or the amount that might be spent, and there 
 were no requirements for publicity. All these matters were 
 regulated in England by the Corrupt and Illegal Practices 
 Prevention Act of 1883, and since that date British elec- 
 tions have been singularly free from corruption and the 
 objectionable features which have too often characterized 
 American elections. 
 
 The problem in Great Britain, however, was far more simple Differences 
 than that in the United States. In Great Britain there is gen- Greir" 
 erally but a single office to be filled at each election in each 
 district. The candidate for Parliament is usually the sole rep- sutes 
 resentative of his party in his district. On the other hand, in 
 America there are both numerous candidates put forward by 
 each party for the offices which the party desires to capture and 
 a multitude of offices to be filled. No one candidate is the sole 
 representative of the party. All the candidates from the gover- 
 nor down are aided by the same party organization. It may be 
 true that a voter may be bribed or corruptly influenced to vote 
 for a specific candidate, but in so doing he generally votes the 
 entire party ticket. It is almost impossible, therefore, to trace 
 corruption back to a single candidate. To punish a state 
 treasurer for the corruption practiced by the party in behalf 
 of the election of its candidate for governor would be unfair, 
 yet the success of the ticket headed by a candidate for gov- 
 ernor guilty of corruption may make possible the election of 
 the state treasurer. 
 
 ipor an excellent treatment of this subject see A. N. Holcombe, 
 State Government in the United States, pp. 221-239. 
 
 Britain and 
 the United
 
 86 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 Few con- 
 tests for 
 nomination 
 in Great 
 Britain 
 
 In Great 
 Britain the 
 candidate is 
 expected to 
 finance his 
 own cam- 
 paign 
 
 American 
 Corrupt 
 'Practices 
 Acts 
 
 A second difference between the United States and Great 
 Britain lies in the fact that in Great Britain there is frequently, 
 if not generally, little contest for nomination. In the United 
 States nominations are hotly contested, and in some districts 
 the nomination is equivalent to an election ; hence the problem 
 becomes twice as complicated as in Great Britain. Thus, even 
 if it were possible satisfactorily to regulate corrupt practices in 
 American elections, the campaigns for nomination would still 
 be fertile fields for corruption. Moreover, in Great Britain the 
 agent of the candidate is his personal choice, and the candi- 
 date may be held personally responsible for the acts of his 
 agent. In the United States, however, the party organizations 
 frequently have the same authority as the candidates, both 
 being the choice of the electorates in the direct primaries. 
 To hold the candidate personally responsible for the action 
 of a party committee of which he may not approve and 
 to the choice of which he may have objected would be 
 manifestly unfair. 
 
 Finally, in Great Britain the candidate is expected to 
 finance a large part of his campaign. It is true that if a very 
 desirable candidate is unable to do so, he may receive a grant 
 from the general funds of the party, but there is little attempt 
 made to finance the campaigns from the local constituency. 
 In the United States, however, each constituency is expected 
 to finance in part, if not entirely, the expense of the cam- 
 paign, and the candidate, while expected to make some contri- 
 bution, is not supposed to meet a large part of the expenses. 
 
 The attempt to control election expenses was begun by New 
 York in 1890 and followed by Massachusetts in 1892, but 
 these early laws were entirely inadequate, although the New 
 York law required the candidate to file an account of his 
 expenses.^ In 1893 Missouri limited the amount that might 
 be spent by candidates and committees, and in 1903 the prin- 
 ciple of publicity of expenditures at the primaries was adopted 
 by some of the Southern states. None of this legislation was 
 
 'Sec A. N. Ilolcombe, State Government in the United States, 
 pp. 221-229, Sid C. A. Beard, American Government and Politics, 
 pp. 701-703; also Senate Document No. 86, 59th Cong., 1st sess., pp. 5-10.
 
 THE CAMPAIGN 87 
 
 very effective, largely because it was not well supported by 
 public opinion. After the insurance investigations of 1904, 
 however, a change of opinion took place. The rank and file 
 of the party were shocked at the thought that their political 
 institutions were coming under the control of an oligarchy of 
 wealth. The large corporations themselves discovered that 
 they were the dupes of the system and that contributions in 
 many cases were a euphonious term for blackmail. 
 
 Effective regulation began in 1907, when Congress pro- The reguia- 
 hibited all corporations from contributing to the campaign expenses 
 funds of federal officers and all national banks and corpora- 
 tions engaged in interstate commerce from contributing to 
 any campaign fund. In 191 o the federal law required sworn 
 statements of contributions and expenses at the close of the 
 campaign from national and congressional committees and all 
 other committees spending money in two or more states for 
 the purpose of influencing federal elections. This publicity 
 was made continuous, and in 191 1 the amount which candi- 
 dates might spend in both the primary and the election to 
 Congress was limited to S5000 for candidates for the House 
 and to $10,000 for candidates for the Senate. The states 
 followed suit, and now nearly one half of them prohibit 
 campaign contributions from corporations and about three 
 fourths provide for filing the returns of contributions and 
 expenditures. 
 
 The many methods which have been devised by the states state regu- 
 to meet this evil may be grouped under several heads. Some campaign 
 of the states limit the amount which any candidate may ^^^^^g^g^ric- 
 spend for election. Perhaps the best examples are the laws tionson 
 
 . candidates 
 
 passed by Oregon in 1908, California in 1909, Wisconsm 
 in 191 1, and Massachusetts in 1914. A maximum amount is 
 fixed in these and similar laws. In the Oregon law this is a 
 percentage of the salary of the office sought, which, in the 
 case of the governor, amounts to about $1250, and of course 
 a much smaller sum for minor candidates, who receive far less 
 aid in their campaigns from the newspapers than does the 
 governor. The California law permits the expenditure of S250 
 for the first 5000 votes in a district, $2 for each additional
 
 8S 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) Control 
 of political 
 committees 
 
 (3) Source 
 of contri- 
 butions 
 
 100 votes up to 25,000, $1 for each 100 up to 50,000, and 
 50 cents for each 100 votes thereafter. This would allow the 
 candidate to expend about $5000. Both the Oregon and 
 the California laws, as well as others, have apparently placed 
 the maximum amount altogether too low. Thus, in Oregon the 
 candidate for governor could spend about half a cent for each 
 voter, and the amount fixed in California would allow the 
 governor to send a post card to about half of the male voters 
 of the state.^ It must be remembered, however, in comparing 
 these figures with the average expense of a dollar a vote al- 
 lowed in British elections, that in the United States the gover- 
 nor is only one of many candidates upon the ticket, which is 
 elected as the joint result of the combined efforts of many 
 committees and contributions to numerous campaigns. 
 
 The control of political committees was first begun in the 
 Massachusetts Act of 1892, which defined a political com- 
 mittee as three or more persons acting to promote the success 
 or defeat of a party principle or candidate. Every political 
 committee was obliged to have a treasurer, to whom all con- 
 tributions were made and by whom the money was expended. 
 At the close of the campaign the treasurer, provided the total 
 expenditures were over $20, was required to tile a return with 
 the town or city clerk. In this act no limitation was placed 
 upon the amount which might be contributed to the commit- 
 tee nor upon the sources from which the contributions came. 
 The principles of this act have been adopted by other states, 
 and in general, wherever legislation regulating the use of 
 money is found, the political committees are required to have 
 a treasurer who is responsible not merely for the expenditures 
 but for the character and source of the contribution. He is 
 obliged to file periodic statements for the federal elections and 
 in some states for state elections. In all cases he must file final 
 accounts after the election has taken place. 
 
 After the federal act of 1907, or in some instances before 
 it, many states adopted laws prohibiting contributions from 
 corporations.- 
 
 1 See A. N. Holcombe, State Government in the United States, p. 236. 
 -See pages 84, 87.
 
 THE CAMPAIGN 89 
 
 The New York statute of 1906^ attempts to make a rather (4) Defini- 
 precise Hst of objects for which money may be used in cam- campaign 
 paigns. Expenditures are allowed for the following purposes: ^^p^^^^^ 
 rent of halls and expenses connected with public meetings ; 
 preparation and publication of various ''literary materials"; 
 compensation for agents in order to prepare and supervise 
 articles and advertisements for the press ; payment of news- 
 papers for publishing materials ; rent of offices and clubrooms ; 
 compensation of clerks, agents, and attorneys managing the 
 ''reasonable business of elections"; preparation of lists of 
 voters ; personal expenses of candidates and traveling expenses ; 
 compensation of workers at the polls ; and the hire of carriages. 
 
 Professional politicians claim that the chief consequences of Effect of 
 these laws have been to encourage perjury and that in many practices 
 instances the laws have been openly and shamelessly evaded ^^^ 
 and violated. Nevertheless some good effects have resulted. 
 The amount spent in elections has undoubtedly decreased. 
 Contributions from corporations have almost entirely ceased, 
 although the testimony on this point is by no means conclusive. 
 The more objectionable objects of expenditures have been re- 
 moved, and more reliance has been placed upon the unpaid 
 services of individuals. Nevertheless much remains to be done 
 before our system will be as free from corruption as is the 
 English system. 
 
 Many of the topics which have been discussed in the pre- Election 
 vious pages are included in the general election laws of the 
 different states. These laws, with the various amendments, 
 are extremely long and complicated, the 19 19 edition of the 
 New York law making a pamphlet of over three hundred 
 pages, while the New Jersey and Massachusetts laws are not 
 much shorter. Aside from the topics already discussed, and the 
 more technical provisions, certain general principles and com- 
 mon features are found in the election laws of almost every state. 
 
 Certain officers are generally placed in charge of the entire (i) Election 
 electoral machinery — in most states the secretary of state to- 
 gether with the county clerks or city or town clerks, although 
 
 iChap. 503, Sect. i. See C. A. Beard, American Government and 
 Politics, pp. 702-703.
 
 90 STATE AND MUNICIPAL GOVERNMENT 
 
 some states appoint special officers to perform these functions. 
 In general the officers are charged with issuing the blanks for 
 nomination, the preparation of the ballots and their distribu- 
 tion to the local election officers, and the return of the official 
 counts of the ballots. The exercise of these duties is a strictly 
 nonpartisan function, and in general this theory is carried out 
 in practice. There are few cases on record where any of these 
 election officials have refused to comply with the regulations 
 of the law in the preparation and distribution of the ballots. 
 The same high standard has not always been maintained in 
 the care of the ballots after the election. 
 (2) Local Practically all states provide for bipartisan boards of poll 
 
 officers clerks or ballot clerks in each polling place. These officers are 
 variously chosen and are also supposed to act in an entirely 
 nonpartisan manner in delivering the ballot to the would-be 
 voter, in receiving the same when duly marked, and in count- 
 ing it after the election. The high standards which have 
 characterized the more important state officials are not always 
 met with in the local officials. All too frequently accusations 
 are made and charges proved against these local officials, who 
 may refuse to allow an elector to vote, or miscount, sometimes 
 intentionally, the results of the election, or destroy or lose the 
 ballots committed to their care. 
 (3)watchers Most States allow duly authorized representatives of all 
 parties to act as watchers. These watchers are to see that 
 fair play takes place and that voters are allowed to cast their 
 votes according to their legal rights. It is their duty also to 
 report violations to the proper authorities and, above all, to 
 see that a fair count is made by the polling officials. 
 ^4) Official 'I'he results of the election must be entered upon standard 
 returns""^ t^^^y shects furnished by the state and duly certified by the 
 proper officials at each polling place. These, together with the 
 counted ballots, which, according to most laws, must be sealed, 
 are delivered to some higher authority for safe-keeping against 
 the possibility of a recount. 
 (5) The Special provisions are made for preserving peace and order 
 
 the pons"* at the polling places. In some states this is confided to the 
 ordinary police force; in others to special constables. In New
 
 THE CAMPAIGN 91 
 
 York State a superintendent of elections is appointed, who, 
 with his deputies, investigates all questions of registration, 
 may arrest without warrant persons who violate the election 
 law, executes warrants of arrest, and inspects books and 
 records dealing with registration and election. 
 
 No person is allowed to vote unless his name appears upon (6) Regis- 
 the register. The system and the merits of personal regis- 
 tration have already been fully discussed.^ On election day 
 the polling officers or, in New York State, the deputies of the 
 superintendent of elections see to it that the provisions of the 
 law are obeyed, that no one votes unless properly registered, 
 and that every person whose name appears upon the register 
 is given the opportunity to vote. 
 
 Most states now require that each voter shall receive a (7) secrecy 
 ballot and mark it in secret, folding it so that the election 
 officials and watchers are unable to determine how he has 
 voted. The object of these provisions is to secure freedom 
 of choice and to prevent intimidation as well as to limit the 
 possibility of bribery. Purchase of votes may take place, but 
 the buyer has little or no opportunity to determine whether 
 the venal voter has fulfilled his part of the bargain. 
 
 Under the head of miscellaneous provisions are classified the (s) Miscei- 
 
 , ., . . . r • f 1 laneous 
 
 provisions prohibiting parties from paying for the transporta- provisions 
 tion of voters to the polls ; forbidding treating, betting, solici- 
 tation of votes within a certain distance of the polls; and, 
 before 1918, the requirement that all saloons should be closed. 
 In general the election code is designed to insure that the 
 electorate unhampered and unintimidated may freely express 
 its opinion. Although this ideal is seldom attained, a vast 
 improvement in orderliness and decency has taken place during 
 the last thirty years. 
 
 The Ballot 
 
 The ballot is the sole means by which the electorate can The 
 formally express its will. Public opinion may be formed by oTtSruot 
 debates, discussions, and newspaper articles. This public opin- 
 ion may be brought to bear upon the officials of the state. But 
 
 iSee pages 61-62.
 
 92 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 Early 
 
 regulations 
 concerning 
 the ballot 
 
 Ballot 
 reform 
 
 the ultimate authority of the electorate is exercised only- 
 through casting the ballot. While the laws regulating the con- 
 duct of elections, the policing of the polls, and the prevention 
 of corruption are important and necessary and often greatly 
 emphasized, the regulations concerning the form and character 
 of the ballot are of equal importance, although their necessity 
 was not so early appreciated. In the course of the past thirty 
 years following the legislation regarding corrupt practices, at- 
 tention has been more and more centered upon the perfection 
 of the ballot.^ 
 
 Thus, in the middle of the nineteenth century the legislation 
 concerning the ballot was chiefly characterized by its inade- 
 quacy. The preparation of the ballot was left entirely to 
 individual initiative as expressed either by the party or by the 
 candidate. There were some restrictions, it is true, to the 
 effect that all ballots should be on paper of the same color, 
 and some limitations as to its size, but in general state author- 
 ity did not interfere with either the preparation or the dis- 
 tribution of the ballot. On the voter's arrival at the polls 
 ballots of all sorts were forced upon him, and he reached the 
 ballot box frequently bearing not one ballot but the tickets 
 of several parties or combinations of candidates. There, be- 
 fore the election officials, he made his selection in public 
 either on the ballots he had received at the polls or on a pre- 
 viously prepared ballot given him by some interested person. 
 The voter then declared his name and residence; the polling 
 officer repeated these in a loud voice for the benefit of the poll- 
 ing clerks and watchers and, if no objections were made, re- 
 ceived the ballot from the voter and deposited it in the box. 
 Secrecy was absent, opportunity for influence, intimidation, 
 and bribery was given, and too often there was a possibility 
 that more than one ballot had been cast. 
 
 Beginning in 1888 Massachusetts introduced what in this 
 country is known as the Australian ballot. The chief features of 
 the Australian ballot as used in Australia were that it was pre- 
 pared by state authority and that the names of the candidates 
 
 ' P. O. Ray, An Introduction to Political Parties and Practical Politics, 
 pp. 322-35Q, prints facsimiles of various types of ballots.
 
 THE CAINIPAIGN 93 
 
 were printed upon the ballot in alphabetical order without 
 party designation. Since in Australia there was generally but 
 one office to be filled at each election, the number of names 
 on the ballot was small and the choice of the voter made easy. 
 The Australian ballot was never introduced in the United 
 States in its entirety. 
 
 The Massachusetts law of 1888 provided that the candidates The wassa- 
 should be grouped alphabetically under each office, each can- type 
 didate bearing a party designation. Like the Australian ballot, 
 however, the Massachusetts law provided for the printing of 
 the ballot by state authorities and designated the political par- 
 ties which should be allowed the use of the party name.^ The 
 ballots were sent by the state authorities to the local authori- 
 ties, who were responsible for them. On election day they were 
 given to the polling officials, who delivered to each voter a 
 single ballot, which the voter marked in secret, folded, and 
 deposited in the ballot box. The significant feature of the 
 Massachusetts type is that the voter must mark with a cross 
 each candidate for whom he wishes to vote. 
 
 In 1889 Indiana made further modifications to the Aus- The party- 
 tralian ballot. The candidates, instead of being grouped by *^° "'"'^ ^^^ 
 office, were arranged in party columns over which was placed 
 tome party symbol, and a method was provided by which the 
 voter by a mark at the head of the column could vote for all the 
 candidates nominated by his party. In order to vote a "split" 
 ticket the voter was obliged to mark, as in the Massachusetts 
 ballot, the name of each candidate he wished chosen. This 
 party-column ballot was at first the most popular type and 
 was copied by the majority of states which adopted the 
 Australian ballot. 
 
 There are certain variations to both types. The INIassachu- variations 
 setts method of grouping the candidates by office is sometimes 
 adopted with the addition of a circle or square in a separate 
 place, by which the voter may vote with a single mark for 
 the entire party ticket.- The party-column type is sometimes 
 modified by the removal of the party circle and the require- 
 ment that the voter must mark the name of each candidate he 
 iSee pages 46-47. 2 Pennsylvania.
 
 94 STATE AND MUNICIPAL GOVERNMENT 
 
 The merits 
 of the two 
 
 systems : 
 
 (i) The 
 Massachu- 
 setts type 
 
 wishes elected.^ The effect of these variations is to make each 
 type more like the other. The removal of the circle at the head 
 of the party column requires voters to mark each candidate, 
 but groups the candidates according to parties. This removes 
 the handicap upon independent voting and at the same time 
 makes party voting more easy. The addition of the party 
 circle to the Massachusetts kind of ballot puts a premium on 
 party voting, but enables the independent voter to make his 
 selection of candidates for different offices more easily than 
 in the Indiana type. 
 
 The jNIassachusetts method practically establishes an edu- 
 cational qualification. It is true that illiterates may receive 
 aid ; it is also true that ignorant voters are sometimes in- 
 structed as to the location of the names of the candidates for 
 whom they desire to vote ; but with all these aids the Massa- 
 chusetts ballot presents considerable difficulties. One great 
 advantage of that ballot is that it does not discourage inde- 
 pendent voting. The voter who votes a split ticket takes 
 no longer to mark his ballot than the one who votes for all 
 the candidates nominated by the party. It thus provides for 
 absolute secrecy and independence of voting and requires 
 considerable intelligence. It was hailed as the ideal form 
 and has been adopted by about fifteen states, including some 
 (notably New York) which had formerly used the party- 
 column type. 
 
 The chief merit of the party-column ballot is that it enables 
 column type the voter to cxpress quickly his choice for the party candidates. 
 It is not, like the ^Massachusetts type, a test of literacy. In 
 those states where there is no literacy requirement for the 
 suffrage it would seem unfair to add one in the make-up of 
 the ballot. The chief disadvantage of the party-column ballot 
 is that it puts a premium upon straight party voting and seri- 
 ously handicaps the independent voter. Not only is the in- 
 dependent voter's task made difficult, but the very time that is 
 required for him to mark a split ticket as compared with voting 
 a straight ticket advertises to interested observers this form of 
 party irregularity. 
 
 ^ Iowa. 
 
 (2) The 
 party
 
 THE CAMPAIGN 95 
 
 The most serious objection to the Massachusetts ballot is Objections 
 that it makes it more difficult for the majority of the voters to Massachu- 
 express their opinion. In most states the majority of voters ^"'^^ ^^^^ 
 are party members and vote the straight party ticket at elec- 
 tions. This statement though subject to certain obvious and 
 famous exceptions generally holds true. It would seem proper, 
 therefore, to devise a ballot which would make it convenient 
 for this majority to express its preference most easily. Sec- 
 ondly, with the multitude of candidates upon the ticket no 
 voter is able to trust to his uninstructed and unassisted knowl- 
 edge. The Massachusetts type recognizes this. Contrary to 
 the Australian system, the candidates appear with party desig- 
 nations, and it may safely be asserted that in many instances 
 the electorate votes more or less indiscriminately for unknown 
 candidates who bear the party designation. In theory this is 
 entirely proper, for the party designation carries with it the 
 party guarantee of principle and, presumably, of integrity. 
 Practically, however, the force of this argument is broken by 
 the fact that many of the officers chosen are not political but 
 administrative and, secondly, that the same party label may 
 mean different things for presidential electors and for state 
 surveyors. Even among political officers examples are numer- 
 ous where congressmen or state senators are at variance with 
 the political party whose designation they bear. 
 
 The chief advantage of the party-column ballot is that it objections 
 enables the majority of the voters to express their opinions party- 
 easily and quickly. This, however, is not without serious draw- column type 
 back. Very often, and perhaps with increasing frequency owing 
 to the direct primaries, there will appear on the ballot candi- 
 dates duly nominated by the party and for whom the members 
 of the party have little sympathy or approval. To make it 
 more difficult for a discriminating member of the party to 
 choose between the good candidates and the bad choices of his 
 party and to advertise his selection by the time it takes him 
 to mark the ballot is unfortunate. 
 
 The real remedy for the faults of the ballot lies not in the The short 
 adoption of the Massachusetts type or of the party-column 
 type with modifications or improvements, but in a more serious
 
 96 STATE AND MUNICIPAL GOVERNMENT 
 
 and fundamental alteration of the electoral system. This 
 movement has been enthusiastically sponsored by reformers in 
 many states and is generally designated as the "short ballot."^ 
 The theory The demand for the long ballot rests upon the theory that 
 touot '°°^ the election of numerous officers extends democratic control ; 
 that the electorate can best control the policy of the state by 
 the direct choice of the officials who frame or administer this 
 policy. As a theory this perhaps may be true ; certainly at- 
 tractive and fervid appeals are made to this principle. Prac- 
 tically, however, the theory is not correct. As many writers 
 have for years been pointing out, the elaboration of the 
 machinery of government and the multiplication of elective 
 officers tend to restrict the free and intelligent choice of the 
 electorate. No single elector can expect to have very definite 
 personal knowledge of many of the candidates for whom he 
 is asked to vote. He therefore either votes blindly or un- 
 hesitatingly ratifies the choice of his party. Where nomina- 
 tions were made by party conventions, and where party 
 conventions were composed of disinterested, wise, intelligent 
 party leaders who attempted to select the best men and best 
 candidates as the party nominees, the party designation was 
 perhaps a good guide. Too seldom, however, did party con- 
 ventions even approximate this high standard. The introduc- 
 tion of the direct primary, while weakening the control of the 
 party organization, added to the burden of the voter. Candi- 
 dates for the same number of offices had to be chosen at the 
 primary and had to be voted for at the election, and few 
 voters were able to discriminate and to express an intelligent 
 opinion concerning the aspirants within their own party. 
 The long That these criticisms are real may be seen from an analysis 
 
 exemplified o^ ^ ballot for Multnomah County, Oregon. This ballot, 
 which is nearly three feet long and over a foot wide, contains 
 
 ^One of the best expositions of the necessity for simplification of the 
 ballot is "The Ballot's Burden," by C. A. Beard, in the Political Science 
 Quartrrly. Vol. XX1\'. The substance of this article is reprinted in 
 "American Government and Politics," pp. 474-487, by the same author. 
 See also R. S. Childs, Short-Ballot Principles. The National Short Ballot 
 Association, with headquarters in New York, is engaged in active 
 propaganda for these principles.
 
 THE CAMPAIGN 97 
 
 142 names of candidates for 42 offices. In addition the voter 
 is asked to express an opinion on 29 legislative proposals. An 
 enumeration of the offices to be filled at this election will 
 emphasize the difficulties of the voter. Voters are asked to 
 vote for a United States senator, a representative to Congress, 
 a governor, a state treasurer, four justices of the supreme court, 
 an attorney-general, a superintendent of public instruction, a 
 state engineer, a commissioner of labor statistics, an inspector 
 of factories and workshops, a commissioner of the railroad 
 commission of Oregon, a superintendent of water division 
 No. I, a judge of the circuit court, a state senator from the 
 thirteenth and one from the fourteenth district, a representa- 
 tive from the seventeenth and twelve representatives from the 
 eighteenth representative district, two county commissioners, a 
 sheriff, a county clerk, a county treasurer, a county auditor, 
 a county surveyor, a county coroner, a judge of the district 
 court department No. i, a judge of the district court de- 
 partment No. 2, a judge of the district court department 
 No. 3, and a constable for the Portland district. In addition, 
 there are ten amendments to the constitution referred to the 
 people by the legislature and nineteen proposals put upon 
 the ballot by initiative petition. To assume that even the 
 most intelligent voter could, in the few minutes the law allowed 
 him to occupy the voting booth, make a discriminating selec- 
 tion on this ballot is ridiculous. The absurdity perhaps is 
 somewhat lessened by the fact that Oregon sends to each voter 
 before the election an excellent publicity pamphlet which dis- 
 cusses the candidates and the proposed measures. The ballot 
 then becomes an examination paper upon the pamphlet, but 
 the test is too difficult. The Oregon ballot is of the Massachu- 
 setts variety, which, it may be remembered, is not the pure 
 Australian type, but contains party designations. It may 
 safely be asserted that the majority of the electors in Mult- 
 nomah County pass this test with the aid of the party desig- 
 nations rather than as the result of discriminating knowledge. 
 According to the short-ballot principle only those officers 
 should be voted for who are responsible for the formulation of 
 policy and the supervision of its execution. The attempt in
 
 98 STATE AND AIUNICIPAL GOVERNMENT 
 
 the short ballot is to centralize the executive power. It is 
 argued that if one executive is chosen in whom is vested the 
 appointments of the other subordinate executives, the policy 
 of the administration will be harmonized and the responsibility- 
 centered upon the chief executive. This is exactly the prin- 
 ciple applied in national affairs, where the president and his 
 possible successor, the vice president, are the only executive 
 officers subject to election. 
 The prin- Applying these principles to the ballot of INIultnomah 
 shorTbauot^ County, we find that the voters would be asked to choose a 
 th^b^lrt^f ^'lited States senator, a representative in Congress, a governor, 
 Multnomah 2 State scuators, 13 state representatives, 2 county commis- 
 sioners, as well as 4 justices of the supreme court, a judge of 
 the circuit court, and 3 judges for the district courts, making 
 a total of 28 as against 42 offices to be filled. This would 
 make a somewhat shorter ballot than the actual ballot used. 
 Enthusiastic advocates of the short-ballot principle would 
 probably go even further and advocate the removal of the 
 judges from the ticket, vesting their appointment in the gover- 
 nor or electing them by a special judicial ballot. The same 
 principle of a separate ballot might be applied to the county 
 officers. There would still remain to be considered the legisla- 
 tive propositions put on the ballot by the initiative and refer- 
 endum. Even at best, however, with all the abbreviations of 
 the ballot and eliminations of elective offices, the task of the 
 elector is difficult. Moreover, it must be admitted that at 
 present probably few states would consent to such a reform as 
 was suggested in the case of the Oregon ballot. 
 Effect of the Although few if any states have adopted the short-ballot 
 
 short-ballot ..,.,. . , . i • i i 
 
 movement principles in their entirety, the movement is making headway. 
 This is true particularly in municipal affairs, where more power 
 of appointment is given to the mayor and thus, to that extent, 
 fewer names appear upon the ballot. Similar movements are 
 found in the reorganization of state governments. Always 
 greater appointive power is given to the governor, and while 
 it cannot be said that the number of elective officers is de- 
 creased, the choice of the increasing number of state officers 
 has not been given to the voters. In spite of all arguments
 
 THE CAMPAIGN 99 
 
 and demonstrations the voters are apparently not yet ready to 
 surrender their fancied control of executive offices to any one 
 officer and insist on preserving the form of election. To a 
 large extent this is a delusion, — a delusion which certain party 
 organizations take pains to encourage. The more offices there 
 are to fill, the more work there is for the organization and the 
 less the chance that the voter will exercise independent choice. 
 As long as the ticket contains thirty or forty names, just so 
 long must the voter be aided in the selection of these names 
 and instructed by party symbols as to the character of the 
 candidates. The party organization willingly assumes the re- 
 sponsibility for this aid and instruction. 
 
 Absent Voting 
 
 The practice of absent voting is not new in the United Absent 
 States. It was first introduced in 1635 in the Massachusetts ^° '"^ 
 Bay Colony. However, Vermont in i8g6 was the first state 
 to adopt absent voting in modern times. Its theoretical justi- 
 fication is in harmony with many of our election laws ; namely, 
 to insure a wide expression of popular opinion and to make 
 that expression as convenient for the voters as possible. 
 These theoretical considerations led to laws in a few states, 
 but the entrance of the United States into the World War 
 and the consequent absence of large numbers of the electorate 
 greatly accelerated the movement. Up to 191 7 twenty-four 
 states had adopted laws which in one way or another provided summary 
 for some form of absent voting. These laws are extremely ° ^^^' 
 varied, but in general they contain the following provisions.^ 
 
 Some states provide that the voter must be a certain dis- (i) Distance 
 tance from his home; some states restrict the privilege to 
 absent voters within the state, others to voters within the 
 United States ; while some laws make no restriction whatever. 
 Some states restrict the reason for absence to unavoidable 
 
 ^Bulletin No. 23, in Bulletins for Massachusetts Constitutional Con- 
 vention, treats the subject and gives a digest of the constitutional pro- 
 visions in operation in 1918, as well as a table of statutes. P. O. Ray 
 covers the same subject in American Political Science Review, Vol. VIII, 
 pp. 442-445; Vol. XII, pp. 251-261.
 
 100 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) The 
 reason for 
 absence 
 
 (3) Kinds of 
 elections 
 
 (4) The 
 application 
 
 (5) The 
 voting 
 
 (6) Counting 
 
 (7) Regis- 
 tration 
 
 Character 
 of laws 
 
 Reasons for 
 laws 
 
 business absences, others to illness, and some do not specify 
 any cause. The laws vary in allowing the absent voter to vote 
 at primaries or general elections or on initiative and referen- 
 dum propositions. Most states require the absent voter to 
 make application to the officers in charge of the election of 
 his district a certain time before the election. On complying 
 with these formalities the officer mails a blank ballot to the 
 address designated by the voter. The voter upon receiving 
 this ballot must mark it in the presence of a notary or some 
 designated public official and inclose the same in an official 
 envelope and mail it to his home town in time to be received 
 before the election. On the election day the officer who has 
 received the ballot sends it to the voting precinct, where 
 various provisions are made under the different laws provid- 
 ing for casting the ballot, subjecting it to the right of chal- 
 lenge, and in some states providing for a hearing in the case 
 of challenge. Some states go so far as to allow absent voters 
 to register by mail. 
 
 In some of the states the laws are very hastily and, to all 
 appearances, carelessly prepared. In others, as Indiana, Illi- 
 nois, and Minnesota, the laws are carefully framed and cover 
 all the points mentioned above, providing both for the con- 
 venience of the voter and for security against fraud. 
 
 The movement is a recognition of the changing economic 
 and social conditions of the electorate. Large groups are more 
 and more compelled to be absent for definite periods from 
 their homes ; among these classes are commercial travelers, 
 railway employees (like conductors, trainmen, engineers, and 
 firemen), chauffeurs, sailors, fishermen, students, artisans of 
 certain classes. In 19 15 it was estimated that nearly thirty 
 thousand men were absent from Massachusetts on election day. 
 Not only should these men have been given the opportunity 
 to express their preference, but in a doubtful election their 
 votes might have altered the result. Hardly any criticism can 
 be urged against the system, except the possibility for fraud. 
 But if the statutes are carefully drawn, this is reduced to 
 a minimum.
 
 THE CAMPAIGN loi 
 
 Preferential Voting 
 
 In some of the early constitutions of the original states a Dangers of 
 majority vote was required for the election of officers. This is plurality ^ 
 also the case in the election of the legislative representatives ^°^^ 
 in many countries of Europe. The disadvantages of this plan 
 are obvious. Where more than two candidates are competing 
 it frequently happens that no candidate receives an absolute 
 majority of the votes cast. In European countries and in a 
 very few American states a second election is ordered. In 
 1855 Massachusetts, when abandoning the majority require- 
 ment, provided that the candidate receiving the highest number 
 of votes should be declared elected. This avoids the difficulties 
 and inconveniences of a second election, but may bring mis- 
 representation of a graver sort. Where there are more than 
 two candidates and no one receives the actual majority of 
 votes cast, the candidate receiving a plurality of votes may 
 be the choice of the minority of the voters ; that is, the votes 
 may be divided between a number of candidates, and the one 
 obtaining the highest vote may receive only a minority of the 
 total votes cast. In other words, the majority of voters may 
 desire some other candidate than the candidate actually chosen. 
 
 Preferential voting attempts to remedy the evils both of a preferential 
 second election and of a minority choice.^ It is a scheme by ^°*^°s 
 which the voters indicate on the ballot their first, second, and 
 other choices. If any candidate receives an absolute majority 
 of first choices, that candidate is declared elected ; if, how- 
 ever, no candidate receives a majority of first choices, the first 
 and second choices are added together in order to see if anyone 
 reaches the majority. If this fails, the third choices are then 
 .counted. Should there be a tie, that candidate is declared 
 elected who receives the largest number of first-choice votes. 
 
 ^See Bulletin No. 27, in Bulletins for the Massachusetts Constitutional 
 Convention; R. M. Hull, "Preferential Voting and How it Works," in 
 National Municipal Review, Vol. I, pp. 386-400; L. J. Johnson, "Prefer- 
 ential Voting," ibid. Vol. Ill, pp. 83-92; M. P. Porter, "Preferential 
 Voting and the Rule of the Majority," ibid. Vol. Ill, pp. 581-585 ; 
 R. L. Ashley, "Preferential Voting," in Cyclopedia of American Govern- 
 ment, Vol. Ill, p. 633.
 
 102 STATE AND MUNICIPAL GOVERNMENT 
 
 Extension There are various other schemes of preferential voting which 
 tiarvoting' have been tried, but the method is generally that just de- 
 scribed. Up to 191 7 preferential voting was in vogue in 
 fifty-seven different cities in the United States. 
 
 Proportional Representation 
 
 Theory of Proportional representation should be sharply distinguished 
 repre*senta- from preferential voting. Preferential voting is the attempt to 
 ^'°° insure success to the majority of the electorate by counting sec- 
 
 ond and third choices; proportional representation is based 
 upon another theory. Its advocates claim that a representa- 
 tive assembly, whether it be a state legislature or a municipal 
 council, should represent not simply the majority voters but all 
 shades of opinion ; in other words, that not merely the ma- 
 jority party in any single locality should be represented, but 
 that the majority party and all minority parties should be rep- 
 resented in proportion to the votes cast by the different groups. 
 Spread of This Scheme was ardently put forward by John Stuart Mill 
 
 representa^ and has been advocated in the United States since the Civil 
 ^'°'^ War. Certain forms were tried in Illinois and Pennsylvania 
 
 in the seventies, but interest in the scheme languished. In the 
 last decade of the nineteenth century the movement received 
 new strength because of the awakened interest in direct legis- 
 lation and a more popular control of the instruments of govern- 
 ment. Although the scheme has been widely discussed, it has 
 been adopted in its complete form only for the choice of 
 city councils.' 
 Methods of There are various systems of proportional representation.- 
 repJesenta-^ The elements of the plans adopted in the United States are as 
 t'o° follows: The voter indicates on his ballot his first, second, 
 
 ^Ashtabula, 1915 ; Boulder, iqiy ; Kalamazoo, IQ18. 
 
 ^See Bulletin No. 28, in Bulletins for the Massachusetts Constitutional 
 Convention, together with bibliography; also Proportional Representa- 
 tion Revirii', and "Pamphlets" published by the American Proportional 
 Representation League, Haverfurd, Pennsylvania; A. N. Holcombe, State 
 Government, pp. 456 et seq.; A. R. Hatton, "The Ashtabula Plan," Amer- 
 ican Proportional Representation League Pamjihlet No. 6. The classical 
 books are J. R. Commons, Proportional Representation, and J. H. Hum- 
 phrey, Proportional Representation ; a Study in Election Methods.
 
 THE CAMPAIGN 103 
 
 third choices, and so forth. A quota is then determined by 
 dividing the total number of ballots cast by the number of 
 persons to be elected, plus one. All candidates who receive 
 the quota of first-choice ballots are declared elected. The 
 surplus votes not needed by the candidates elected are then 
 distributed to the other candidates according to the choices 
 indicated on the ballots. And the process is continued until 
 a sufficient number of candidates is declared elected. Another 
 method, which is used in Belgium, Sweden, Finland, Switzer- 
 land, and France, is the list system. This system is based on 
 the assumption that nominations will be made by parties, and 
 the scheme endeavors to secure proportional party representa- 
 tion as well as to provide for the personal preferences of the 
 electors. The names of the candidates for the offices to be 
 filled are grouped under party designations. The voter marks 
 the candidates he desires to be elected. The ballots are voted 
 by marking a cross against one name on one list, which means 
 two things: first, that the vote is to count in determining the 
 number of representatives that list shall receive and, second, 
 in securing a high place on that list for the candidate for whom 
 the voter has voted. Each list is entitled to a number of seats 
 proportional to the total vote of all the candidates on the list. 
 The successful candidates on each list are determined by the 
 number of votes each has received. 
 
 Without doubt proportional representation will secure the Merits and 
 election of members representative of different groups. The proportional 
 scheme, however, strikes a severe blow at the system of party ^epresenta- 
 government. In Ashtabula, for example, proportional repre- 
 sentation produced a very good picture of the racial, religious, 
 and economic divisions of the city. Even the wets and the 
 drys were represented. But in the choice of these councilors 
 were not the voters influenced by some one particular issue 
 rather than by the necessity of choosing a representative to 
 deal with all the issues which might be presented in the city 
 government? In other words, a "wet" or a "dry" member 
 may satisfactorily represent his supporters on that issue, but 
 on other or larger issues totally fail to satisfy his group. 
 Political parties attempt to select representatives who shall 
 
 ion
 
 104 STATE AND MUNICIPAL GOVERNMENT 
 
 adequately represent the party on all issues. Party principles 
 and policies are necessarily the result of compromise, and the 
 persons chosen by the party system may frequently fail to 
 satisfy all elements of the party. But the party system and 
 the choice of representatives by either majority or plurality 
 vote does represent the will of the constituency to act on 
 certain matters. 
 Plan for In municipal government — in fact, generally in local 
 
 represen°-'^^^ government, of which state governments are the highest mani- 
 th^^u^'t^d ffistations — there is evidently a place for proportional repre- 
 states sentation.' As will be seen, the political parties seldom do more 
 in state government than to insure the election of the speaker 
 and the distribution of the patronage. Members of state legis- 
 latures do not usually vote according to party lines. There 
 is thus much less reason for party government in state legis- 
 latures and correspondingly many more arguments for the 
 adoption of some system of proportional representation.
 
 CHAPTER VI 
 THE INITIATIVE, REFERENDUM, AND RECALL 
 
 In the preceding chapters the political system of the state Direct ac- 
 has been discussed; the organization of the electorate into electorate in 
 parties, the actual process of voting at the elections, and the ,Jf'eg°°fa-^ 
 form of the ballot have been described. The electorate, how- tion and 
 
 administra- 
 
 ever, controls the action of state governments in other ways, tionthrough 
 A most effective means is afforded by direct legislation through tive^refeV- 
 the initiative and referendum.^ Some of the effects of direct ^^^^^^^^ ^"-^ 
 legislation upon the legislature and the legislative product will 
 be discussed in succeeding chapters. Since the use of the 
 initiative, referendum, and recall requires action by the elec- 
 torate directly at the polls, it seems advisable to discuss the 
 operation of the initiative and referendum while dealing with 
 the electorate. This is particularly true because all proposals 
 for legislation, constitutional amendments, and questions of 
 recall appear upon the ballot. Direct control over legislation 
 and administration is obtained through the use of the political 
 
 1 There is a large amount of material upon the initiative and referen- 
 dum. An extremely clear and concise statement of the varieties of 
 forms, together with illustrated tables and typical constitutional provi- 
 sions, is to be found in G. H. Haynes, The Initiative and Referendum, 
 Boston (1917). This is also published as Bulletin No. 6, in Bulletins 
 for the Massachusetts Constitutional Convention. E. P. Oberholtzer's 
 "The Initiative, Referendum, and Recall in America" (iQii) is a stand- 
 ard work; the supplementary chapters covering the period from 1900 to 
 1910 are severely critical. D. F. Wilcox's "Government by All the People, 
 or the Initiative, Referendum, and Recall as Instruments of Democracy" 
 (1912), is for the most part an enthusiastic defense. A. L. Lowell, 
 Public Opinion and Popular Government (1914)) presents a carefully 
 studied criticism, together with valuable tables on the operation of the 
 initiative and referendum in Switzerland. A. N. Holcombe's "State 
 Government in the United States" (1016), chap, xiii, contains a thought- 
 ful and suggestive discussion and analysis. J. D. Barnett's "The Opera- 
 tion of the Initiative, Referendum, and Recall in Oregon" (191$) is a 
 scholarly and valuable presentation of the Oregon system. 
 
 105
 
 io6 STATE AND MUNICIPAL GOVERNMENT 
 
 Definitions 
 (i) The 
 initiative 
 
 (2) The 
 referendum 
 
 Distinction 
 
 Varieties 
 of the 
 referendum: 
 
 (i) The con- 
 stitutional 
 referendum 
 
 machinery which has just been described. Its success is partly 
 conditioned by the laws governing the conduct of elections and 
 the preparation of the ballot. Conversely, the addition of 
 these questions complicates the problems of the ballot which 
 have just been discussed. 
 
 The initiative is a device by which a group of people may, 
 through petition, place a measure upon the ballot. If a suf- 
 ficient majority of the electorate approves this measure it 
 becomes law. The measure may be either a statute or a con- 
 stitutional amendment ; it may be referred directly to the 
 people or first to the legislature. The significant thing to note, 
 however, is that the measure is proposed or initiated by the 
 electorate, which also accepts or rejects it at the polls. In both 
 cases it is the direct action of the electorate. 
 
 The referendum is a device by which a measure adopted by 
 some legislative body may be referred directly to the electorate 
 for its approval or rejection. The common characteristic of 
 all varieties of the referendum is that it receives final action 
 from the electorate. 
 
 The initiative is positive. Its purpose is to obtain legislation 
 which, there is reason to believe, the legislative bodies will not 
 enact. The intent of the referendum is negative. It prevents 
 the adoption of a measure until approved by the voters. The 
 initiative acts as a spur, the referendum as a brake. 
 
 The referendum may be classified according to the measures 
 for which it is used. When applied to constitutional amend- 
 ments it is called the constitutional referendum ; when applied 
 to acts of the legislature it is called the statutory referendum. 
 
 The constitutional referendum has been long in use in the 
 United States. In ISIassachusetts it was first invoked in 1641 
 and was frequently used on constitutional questions during the 
 Revolutionary period.^ Its most effective application was in 
 1780 on the question of the adoption of the Massachusetts 
 constitution. Since then the practice has been increasingly 
 followed until almost every state refers the adoption of con- 
 stitutional amendments directly to the people.- 
 
 ' Sec Bulletin No. 6, in Bulletins for the Massachusetts Constitutional 
 Convention, p. ig6. -For exceptions sec page 31.
 
 INITIATIVE, REFERENDUM, AND RECALL 107 
 
 The working of the constitutional referendum is familiar to working of 
 all, and in general its results have been satisfactory. The tutionai ' 
 measures submitted have been framed either as the work of a "^e^^fendum 
 constitutional convention, where they were subject to debate 
 and criticism, or by the legislatures' — in some states by two 
 successive legislatures. As a result, the measures have at- 
 tracted considerable popular interest and attention. It thus 
 has been assumed also that public opinion would be formulated 
 upon them. This is by no means the case. Yet in 1853 the 
 eight amendments proposed by the Massachusetts constitu- 
 tional convention were rejected by a vote varying from .8 to 1.8 
 per cent greater than was cast for the candidates for governor 
 on the same day. In 1855, however, six of these amendments 
 were adopted by a vote of only from 14.4 to 14.7 per cent of 
 the vote for governor. ''In fact, of the forty-four amendments 
 which have been adopted, sixteen have been ratified at elec- 
 tions where not 30 per cent of those who voted for governor 
 had voted for or against the amendment."^ 
 
 The statutory referendum may be defined as the submission (2) The 
 of a measure passed by the legislature to the electorate for referendum: 
 popular approval. There are two varieties of this: (i) The (a) The 
 state-wide referendum. By this device a legislative measure referendum 
 affecting the entire state is submitted to the electorate of the 
 entire state. (2) The local referendum. By this means ques- (6) The local 
 
 rr .• r 1 1 i • i r referendum 
 
 tions affecting areas of local government are submitted for 
 approval. In strict theory this is not an example of direct legis- 
 lation, but rather a form of local government. The commonest 
 way in which it was formerly used was the submission of the 
 question whether licenses for the sale of alcoholic beverages 
 should be granted in particular communities. It is, however, 
 increasingly employed as a means by which municipalities may 
 adopt or amend their charters or may determine whether legis- 
 lative acts shall apply to their particular locality. 
 
 The referendum mav also be classified as compulsory or op- (3) The 
 tional. It is called compulsory when the legislature, without the referendum 
 intervention of the electorate, submits a question for popular 
 
 ^See Bulletin No. 6, in Bulletins for the Massachusetts Constitutional 
 Convention, p. 198.
 
 io8 STATE AND MUNICIPAL GOVERNMENT 
 
 (4) The 
 compulsory 
 legislative 
 referendum 
 
 (5) The 
 optional 
 referendum 
 
 Varieties 
 of the 
 initiative : 
 (i) Consti- 
 tutional 
 
 (a) Direct 
 
 approval. All constitutional referenda are compulsory. In many 
 state constitutions there are provisions requiring the legisla- 
 ture to submit for popular approval certain types of questions ; 
 for example, the increase of the debt limit, the change of the 
 location of the state capital, and so forth. 
 
 In some states the legislature may, if it sees fit, submit any 
 law to the electorate. The courts are by no means unani- 
 mous on the question of the right of the legislature to do this 
 without some constitutional authority ; in general they have 
 denied this right on the ground that it was a delegation of 
 power granted to the legislature, but they have allowed the 
 legislature to submit to the people the question of the time 
 at which the proposed measure shall go into operation — which 
 is practically equivalent to submitting the measure for ap- 
 proval. In some states, however, the constitution expressly 
 grants this power to the legislature. 
 
 By means of the optional referendum the people by petition 
 compel the legislature to submit a measure already adopted 
 by that body to the electorate for popular approval. The 
 optional referendum is compulsory upon the legislature, but it 
 is optional with the people whether or not it shall be invoked. 
 As might be expected, this form of referendum has aroused 
 much criticism on the part of the uncompromising advocates 
 of representative government and the opponents of direct legis- 
 lation. It must be admitted, however, that the measures sub- 
 mitted to the people as the result of an optional referendum 
 have aroused wider public interest and have received a larger 
 percentage of the votes cast at the election than the measures 
 submitted as the result of the compulsory referendum. 
 
 The initiative may be classified according to the measures 
 to which it is applied. It is called constitutional when constitu- 
 tional amendments are framed by the people and as the result 
 of a petition are submitted to the electorate for approval or 
 rejection. It is called a statutory initiative when a law is 
 framed by the people and submitted to the electorate as the 
 result of petition. The initiative may be direct or indirect. 
 In the use of the direct initiative the proposed measure is 
 submitted to the electorate without the intervention of any
 
 INITIATIVE, REFERENDUM, AND RECALL 109 
 
 legislative body or constitutional convention. By the indirect (3) indirect 
 initiative the measure is proposed by the people-and submitted 
 to the legislature for approval. There are many varieties of 
 this type. For example, the legislature may itself enact a 
 competing measure and refer the two directly to the electorate. 
 Or the legislature may amend the measure, and if the amend- 
 ment satisfies a committee of the original proposers and the 
 legislature adopts the amended measure, nothing is submitted 
 to the electorate. In this form the indirect initiative is little 
 more than a petition to the legislature. The indirect constitu- 
 tional initiative is provided in the forty-eighth amendment to 
 the Massachusetts constitution, adopted in 1918. According 
 to this the proposed amendment must be accepted by at 
 least one fourth of the members of two successive legislatures 
 meeting in joint sessions. 
 
 It is to be noted that the initiative results in a referendum : common 
 that is, the measures proposed by the people are submitted of the 
 to the electorate in a manner similar to those referred by the I'litiative 
 legislature to the people. Thus, it is possible to discuss certain 
 features common to both the initiative and the referendum. 
 Both the initiative and the optional referendum involve a 
 popular petition. The initiative and all types of the referendum 
 involve a reference to the people. Therefore, to understand the 
 workings of the initiative and referendum it is necessary to 
 discuss the provisions for the petition, the election, and the 
 majorities necessary for acceptance. 
 
 All petitions must contain the measure on which popular The petition 
 action is to be invoked.^ The question arises whether these 
 measures should appear in full or in synopsis. Most states The measure 
 allow measures passed by the legislature to appear under their appear on 
 title in brief form, on the assumption that the electorate is the petition 
 sufficiently familiar with them. Practically all the states, how- 
 ever, require the printing of the full and complete proposal of 
 all popularly initiated measures. There is a question whether 
 
 iSee W. A. Schnader, "Proper Safeguards for the Initiative and 
 Referendum Petition," in American Political Science Review, Vol. X, 
 PP- 515-531; and F. W. Coker, "Safeguarding the Petition in the Initiative 
 and Referendum," ibid. pp. 541-545.
 
 no STATE AND MUNICIPAL GOVERNMENT 
 
 this is always helpful. It is to be feared that even intelligent 
 people seldom read the entire measure. They are attracted by 
 the title and informed by the newspapers. But it is certain 
 that the signer should be informed of the nature and contents 
 of the measure for which his signature is asked. Whether this 
 information is properly given by the printing of a long and 
 complicated law may well be questioned. The problem seems 
 to be well solved by the statutes of Ohio,^ which permit the 
 proponents of an initiative measure to submit to the attorney- 
 general a synopsis of the measure, which, if he approves, may 
 be printed upon the petition together with the full text of 
 the measure. 
 Who should In many states the measure submitted on the petition may 
 J^e^suJi^? be framed according to the desires of the petitioners. By so 
 doing the door is opened for misrepresentation, for ill-drawn 
 measures, and for measures of ambiguous meaning ; for example, 
 in 1 9 10 in Oregon a constitutional amendment was proposed 
 granting the suffrage to "every citizen of the United States of 
 twenty-one years and upwards, who shall have resided in the 
 state during the six months immediately preceding such elec- 
 tion. ... It is expressly provided hereby that no citizen who 
 is a taxpayer shall be denied the right to vote on account of 
 sex." This measure was headed on the ballot ''Women's Tax- 
 paying Suffrage Amendment, granting to taxpayers, regardless 
 of sex, the right of suffrage."- The title of this measure was mis- 
 leading, for the substance of the law granted equal suffrage to 
 women and men. Independently of the merits of the suffrage 
 question, the voters of Oregon are to be commended for their 
 rejection of such an ambiguously framed measure. 
 Submission To prevent the submission of such measures, some states re- 
 toarfofficiai quire that the initiative measures be subjected to some state 
 officer, generally the attorney-general, whose duty it is to 
 certify that the measure is in proper form. According to 
 Article LXXIX of the Massachusetts constitution the attorney- 
 general must certify that the measure is neither "affirmatively 
 
 1 General code of Ohio, Vol. II, p. 2626. 
 
 -Sec G. H. Hayncs, "'People's Rule' in Oregon, loio" in Political 
 Science Quarletly, Vol. XXVI, pp. 32-65. 
 
 review
 
 INITIATIVE, REFERENDUM, AND RECALL iii 
 
 or negatively, substantially the same as any measure which has 
 been qualified for submission or submitted to the people within 
 three years . . . and that it contains only subjects not excluded 
 from the popular initiative and which are related or which 
 are mutually dependent. . . ." Both the efficacy and propriety 
 of such a provision may be questioned. It places in the hands 
 of a single officer the power to alter or defeat the desires of a 
 substantial group of people who wish to place their proposal 
 before the electorate. It must be admitted, however, that there 
 should be vested somewhere the power to prevent the circula- 
 tion of petitions containing matters which, by the constitution 
 of the state, are not subjects for the initiative. Certainly, 
 moreover, the people should be protected against the appear- 
 ance of obscure or ambiguous measures. Can this be accom- 
 plished by vesting such power in the attorney-general ? The 
 Oregon amendment already quoted was submitted to the 
 attorney-general, and certified by h!m to be in proper .form 
 and to have a suitable title. It is unfair to make deduc- 
 tions from one case, but the experience of Oregon is surely 
 instructive. 
 
 Practically all states require that the signers of a petition, who should 
 whether to propose a measure or to compel the reference of petition? 
 one already adopted by the legislature, should be qualified 
 voters. Indeed, this is an entirely reasonable restriction, 
 hardly open to discussion. It is more difficult, however, to 
 devise safeguards which will insure that the signers of a peti- 
 tion are bona-fide qualified voters and at the same time, by 
 these very safeguards, not to prevent nor to make difficult the 
 gathering of signatures. The merits of the various proposals 
 are judged from two opposite points of view. To some persons 
 the purpose of the initiative and referendum is to educate the 
 people, so that anything which restricts or makes difficult the 
 circulation of the petition is to be condemned. To another 
 school the initiative and referendum are to be used sparingly, 
 only in emergencies ; thus it is proper to place restrictions 
 around the gathering of signatures in order to be sure that 
 only those people who are bona-fide electors and interested in 
 the measure shall sign the petition.
 
 112 STATE AND MUNICIPAL GOVERNMENT 
 
 Who may Almost all the states provide that only qualified electors shall 
 
 thepeti- circulate petitions. In practice this has not been found suf- 
 ^^°^^ ficient. A more stringent prohibition prevents the circulation 
 
 of petitions for a compensation. In view of the experiences 
 which certain states have had with the improper solicitation 
 of signatures, this perhaps may be defended.^ The state of 
 Washington has devised a thorough method of safeguarding 
 the signatures on petitions, which, while by no means typical 
 of the practice of any other state, probably represents the most 
 extreme example of regulation. The petitions may not be cir- 
 culated, but are to be deposited with the registration officer 
 of the district.^ For these petitions the registration officers 
 give receipts and are required to display in their offices plac- 
 ards with these words, "Initiative or Referendum Petitions 
 May Be Signed Here." The offices are required to be open on 
 Friday and Saturday evenings between the hours of six and 
 nine for ninety days after the close of the legislature, or for 
 ninety days preceding the date at which the petitions must 
 be filed with the secretary of state. On attempting to sign a 
 petition the applicant must answer the questions asked by the 
 registrar of voters, and his answers must correspond to those 
 originally given upon registration. The signature on a petition 
 must be compared with the signature in the registrar's book. 
 There are penal provisions making it a misdemeanor for any 
 person to sign or to decline to sign a petition for any compensa- 
 tion or reward, to advertise for signatures, to solicit signatures 
 or to pay for them, to attempt to prevent signers, or, within 
 one hundred feet of the entrance of any registration office, 
 to solicit or attempt to induce any person to sign or not to 
 sign a petition. 
 
 ^Thc circulation of one petition in Oregon was intrusted to a Port- 
 land attorney who secured slRnatures at the rate of three and a half 
 cents a name. Seven of the solicitors hired by this attorney signed in 
 turn, on each other's petitions, names in a disguised handwriting. See 
 Slate rx rel. v. Olcott, 62 Oregon, 277, in American Political Science 
 Revicii', Vol. X, p. 519. In 1913 one solicitor in Ohio testified that out 
 of the 7020 names secured by him not one was genuine (ibid. p. 542). 
 
 -1915 I.aws of Washington, p. 186, quoted in American Political 
 Science Review, Vol. X, p. 521.
 
 INITIATIVE, REFERENDUM, AND RECALL 113 
 
 The Washington law without doubt makes fraudulent signa- Criticism 
 tures practically impossible. It does more: it assures the elec- 
 torate that the petition is signed only by interested parties. 
 Unfortunately, however, it does even more than this : it prob- 
 ably prevents many interested persons from signing a petition. 
 One of the great difficulties which all politicians experience is 
 that of registration and "getting out the votes." If it is 
 difficult to get the ordinary voter, who presumably is inter- 
 ested in the choice of the president or governor, to come to the 
 polls, it will be doubly difficult to get the voter to come to 
 the office of the registrar and sign petitions. As a measure to 
 prevent the too frequent use of the referendum and initiative 
 the Washington law is excellent, but it may be questioned 
 whether in the desire to prevent fraud the state has not seri- 
 ously hampered the proper use of the initiative and referendum. 
 
 It is perhaps impossible to determine the proportion of Paid soiici- 
 fraudulent signatures upon petitions. It is true that the pro- signatures 
 portion of fraudulent signatures is greater on the petitions 
 which have been circulated by paid canvassers. In fact, one 
 writer asserts that all the glaring instances of fraud have been 
 found in connection with the paid circulation of petitions and 
 that no serious fraud has been discovered in petitions circu- 
 lated by voluntary workers. The obvious conclusion would be 
 that the paid circulation of petitions should be forbidden. 
 But this by no means follows. It is true that for certain 
 measures in which the public is vitally interested or for meas- 
 ures which appeal to certain large classes, it is easy to find 
 volunteer canvassers, but for other measures this is more dif- 
 ficult. It must be remembered, moreover, that the proponents 
 of an initiative petition are just at the beginning of their 
 campaign and are attempting to arouse public opinion and in- 
 terest. W^hen it is realized that the signatures of 5, 8, 10, or 
 even 25 per cent of the electorate are required for a petition, 
 the difficulty of the task of gathering signatures is evident. 
 It perhaps is questionable whether at that stage of the cam- 
 paign it is desirable or necessary to burden the proponents of 
 a measure with the task of gathering the signatures for their 
 petition by means of volunteers.
 
 114 STATE AND MUNICIPAL GOVERNMENT 
 
 substitu- If payment be allowed for the circulation of petitions, there 
 
 fir°petition^ is Httlc guarantee that the signatures will represent any intelli- 
 gent opinion. Therefore it has been suggested that instead of 
 requiring the proponents of a measure to gather signatures at 
 the expense of from three to ten cents a name, they be required 
 to pay to the state a certain fee. One author suggests that 
 this fee be made large enough to send information concerning 
 the measure to every voter of the state. There is little objec- 
 tion to this proposal, provided the premise of allowing the 
 payment for the gathering of signatures be admitted. Less can 
 be said for the proposal if payment for the solicitation of sig- 
 natures is prohibited. As has been said, one of the purposes 
 of requiring a certain percentage of signatures to a petition 
 is to prevent loading the ballot with frivolous proposals. It 
 may well be questioned whether the payment of a fee would 
 prevent this. It also may be suggested that the payment of a 
 fee might prevent an enthusiastic group who lacked financial 
 backing from getting their measure on the ballot. 
 Means for The most commou provision for the determination of the 
 the^riidit? validity of the signature is the requirement that the circulator 
 °* ^^^ of each petition shall take oath that the signers of his petition 
 
 signature ^ ,. . ,.^ , 
 
 are to the best of his knowledge and belief qualilied voters and 
 have been duly informed of the contents of the petition. To 
 conscientious canvassers this requirement may mean some- 
 thing, but it is to be feared that too often the canvasser pays 
 little attention to the qualifications of the persons who sign the 
 petition. In some states the registrars of voters are required 
 to compare the signatures on the petition with those on the 
 lists of registered voters. To facilitate this purpose several 
 states prohibit the circulation of the same petitions in more 
 than one district. The extreme requirement is found in the 
 Washington law already described. 
 Number of The number of signatures required upon a petition not only 
 reSdT varies in different states but differs with the nature of the 
 petition.^ An initiative petition for a constitutional amend- 
 ment requires the signatures of 5 per cent of the voters in 
 
 ' See C. O. Gardner, " Problems; of Percentapes in Direct Govern- 
 ment," American Polilkal Science Review, Vol. X, pp. 500-515.
 
 INITIATIVE, REFERENDUM, AND RECALL 115 
 
 South Dakota. At the other extreme the percentage required (i)Forcon- 
 
 r , rr-i stitutional 
 
 in North Dakota is 25 per cent of the voters. The more com- amendment 
 mon practice, if it be possible to generalize, would fix the re- 
 quirement at from 10 to 15 per cent. In sparsely settled states 
 this requirement may not be too severe, but since the initiative 
 and referendum are spreading into the more populous states 
 the percentage demanded must necessarily be diminished un- 
 less the burden of collecting the signatures is made too great. 
 In Massachusetts a constitutional amendment may be initiated 
 by a petition signed by 25,000 qualified voters. But in Mas- 
 sachusetts the initiative for constitutional amendments is not 
 direct, since the measure is referred to the legislature. 
 
 Ordinary statutes may be initiated by petitions bearing from (2) Forpeti- 
 8 to ID per cent of the qualified voters.^ In Ohio a petition statute^ 
 if signed by 3 per cent of the voters brings the bill before the 
 general assembly, but an additional 3 per cent must be ob- 
 tained in order to bring the bill before the people in case the 
 legislature refuses to adopt it. Massachusetts and Maine adopt 
 a fixed number of signatures instead of a percentage: Maine 
 fixes 12,000; Massachusetts requires 20,000 signatures, but 
 5000 additional are required to put the petition on the ballot 
 in case the legislature refuses to act. 
 
 Maine demands 10,000 signatures on referendum petitions. (3) For 
 
 „ . . •, .1 ^ c- referendum 
 
 Before 191 1 m no state was it more than 5 per cent, bince petitions 
 that date, however, the necessary percentages have increased. 
 Ohio and Washington fix the number at 6, while in Nebraska, 
 Nevada, and North Dakota it is 10. Like Maine, Massachu- 
 setts requires a flat number — 15,000. 
 
 Most of the states originally made no provisions concerning Distribu- 
 the distribution of the residence of the signers, but more re- residence 
 cently it has seemed desirable to certain states to call for a °* "'^ners 
 wider expression of opinion on petitions than was ordinarily 
 found. Thus, Montana requires that at least two fifths of the 
 counties of the state must be represented on the petition, 
 Missouri two thirds of the congressional districts, and North 
 
 iSee Beard and Shultz, Documents of the Initiative, Referendum and 
 Recall, for detailed provisions in each of the various states; see also 
 current numbers of the American Year Book.
 
 ii6 STATE AND MUNICIPAL GOVERNIMENT 
 
 Submission 
 to the people 
 or the 
 legislature 
 
 The 
 referendum 
 
 Dakota, lo per cent of the voters in a majority of the counties ; 
 while for the constitutional initiative jSIassachusetts demands 
 that not more than one fourth of the certified signatures on 
 any petition shall be those of the registered voters of any 
 one county. 
 
 In the case of the direct initiative, v>'here the formalities 
 of the petition have been fulfilled, the measure is referred 
 directly to ihe people. The same is true with regard to the 
 petition for the legislative referendum. In the case of the in- 
 direct initiative the petition is first referred to the legislature. 
 If the legislature enacts the law proposed by the petitioners 
 there is no reference to the people. If, however, the legisla- 
 ture refuses to enact the law before a certain date, reference 
 must be made and the matter becomes a referendum. In an 
 increasing number of states, however, the legislature is given 
 the option of amending the proposed measure or of enacting a 
 competing measure, both of which may be submitted to the 
 people. Without attempting to discuss the merits of this pro- 
 cedure, it is obvious that different instrumentalities are being 
 employed : the submission of the original proposal is an in- 
 stance of the optional referendum and the submission of a com- 
 peting measure by the legislature is an example of the use of 
 the compulsory' referendum. This method would have much 
 to commend it if the proposals on the ballots were not already 
 too numerous and if it were certain that the voters would dis- 
 criminate and accept or reject the proposals upon their merits. 
 
 The referendum has been defined as a device by which the 
 people may express their approval or disapproval of a measure. 
 As has been seen, this measure may originate in an initiative 
 petition and be either a statute or a constitutional amendment. 
 The referendum, however, may also be employed for a consti- 
 tutional amendment adopted by the legislature or constitu- 
 tional convention, or upon a law passed by the legislature and 
 referred to the people either by the legislature or as the result 
 of a petition. The procedure for the initiative and referendum 
 has this point in common — that the voters are asked to ex- 
 press their approval directly upon the measure at a general or 
 special election.
 
 INITIATIVE, REFERENDUM, AND RECALL 117 
 
 As has been said, in the use of the compulsory referendum The effect 
 no petition is necessary. The constitution compels the people tion^or'' 
 to express their approval or the legislature may choose to ask '■^^erendum 
 the voters to express their approval upon the proposed measure. 
 Until this approval is given, the process of legislation is not 
 complete. Before being ratified by the people constitutional 
 amendments have no effect. A measure passed by the legisla- 
 ture and referred to the voters does- not become a law until 
 approved by them — popular approval is the final step in the 
 legislative process of this particular kind. This is not true in 
 the case of the optional referendum. When that is used the 
 legislative process is complete if the measure has been passed 
 by the legislature and signed by the governor. Normally such 
 an act is a law. How, then, can the optional referendum be 
 made effective? In most states which have adopted the refer- 
 endum a provision exists declaring that no law passed by the 
 legislature shall go into effect until a certain time has elapsed. 
 This delay is generally sixty or ninety days, a period suf- 
 ficiently long for the people to become cognizant of the law 
 and for interested parties to circulate a petition for its refer- 
 ence to the electorate. At the end of the designated period the 
 law becomes effective unless a petition for a referendum has 
 been duly signed and filed with the proper officials.^ The 
 effect of such a petition is to postpone operation of the law 
 until approved by the electorate. 
 
 It is obvious that occasions may arise in which such a delay Limitations 
 would be disastrous for the state. To subject every possible referendum: 
 law, first to a suspension of three months and then to the 
 possibility of further postponement until the next regular elec- 
 tion, would be to tie the hands of the legislature and prevent 
 its taking action in case of a crisis. To avoid this situation 
 the state constitutions have followed different methods. 
 
 In some states the legislature is allowed to declare that an (i) Emer- 
 emergency exists. Thus, in South Dakota the legislature may feg°isfation 
 declare the measure an emergency measure if it "be necessary 
 for the immediate preservation of the public peace, health, or 
 
 ^The legislature, however, may declare that the law becomes effec- 
 tive at some date even later than that designated by the constitution.
 
 ii8 STATE AND MUNICIPAL GOVERNMENT 
 
 [Criticism] 
 
 [Increased 
 
 majority 
 
 necessary 
 
 for an 
 
 emergency 
 
 declaration] 
 
 safety, support of the state government or its existing institu- 
 tions." Similar provisions are found in the constitutions of 
 other states.^ Missouri leaves the matter entirely to the legis- 
 lature, which may declare any act an emergency act ; Michigan 
 makes all appropriation acts emergency legislation ; while in 
 the other states provisions similar to the South Dakota clause 
 are found. 
 
 The difficulty wuth the South Dakota provision is, first, that 
 there is no substantial agreement or standard by which it 
 may be determined whether a measure is for the health, safety, 
 or preservation of the public peace. Thus, in April, 1920, the 
 Massachusetts legislature passed under the emergency clause 
 a bill legalizing amateur Sunday baseball. By the utilization 
 of the emergency clause it was possible for cities accepting 
 the act to allow baseball teams to play during the summer 
 months instead of postponing the season until 192 1. That 
 this was a proper use of the emergency provision few will 
 admit. A second objection is that even if there were a con- 
 sensus of opinion as to what constitutes an emergency, the 
 legislature might abuse this. So in South Dakota, between the 
 years 1899 and 191 7, the legislature passed 2573 acts, and 
 the emergency clause was attached to 40 per cent of these. It 
 should be added, however, that in 19 15 the supreme court of 
 South Dakota decided that the emergency clause cannot defeat 
 a referendum unless an actual emergency exists, as defined by 
 the constitution.- 
 
 Another method of limiting the power of the legislature to 
 declare an emergency is to require an unusual majority in the 
 legislature for such a declaration. In practically every state 
 adopting the referendum a majority of two thirds of the mem- 
 bers elected to each house is required for such a declaration. 
 Arizona, California, and Maine allow the legislature to declare 
 an emergency with a two-thirds majority, but this does not 
 prevent the referendum's being invoked. A law passed under 
 
 iSee Index Digest of State Constitutions, iQiJ, also Bulletins for the 
 Massachusetts Constitutional Convention, Vol. I, pp. 204, 205. 
 
 2 Bulletins for the Massachusetts Constitutional Convention, Vol. I, 
 pp. 203-204.
 
 INITIATIVE, REFERENDUM, AND RECALL 119 
 
 the emergency act goes into effect at once, although it may be 
 repealed by a referendum at a subsequent election. 
 
 All the states except certain laws from the operation of the (2) Excep- 
 referendum. In general, all laws for the immediate preserva- c'e°rtain 
 tion of public peace, health, or safety or for the support of ^omThT 
 the state government and institutions^ are excluded from the process of 
 
 ° the refer- 
 
 operation of the referendum. Massachusetts goes further and endum 
 excludes laws relating to religion, the courts, the judges, and 
 also laws the operation of which is restricted to a single 
 political subdivision.- In addition, Massachusetts, in common 
 with several other states, excludes appropriations for the cur- 
 rent or ordinary expenses.^ The method adopted in California 
 has much to commend it. Here the legislature may declare 
 by a two-thirds vote of the members elected in each house 
 that a measure is an emergency measure. Nevertheless this 
 power is restricted and does not apply to measures creating 
 or abolishing an office, changing any salary, granting any 
 franchise or special privilege, or creating any vested right 
 or privilege. No one of these shall be declared an "urgency 
 measure." 
 
 In all states adopting the initiative and referendum the submission 
 measures so proposed are to be submitted to the people at the to the 
 next regular election provided such occurs not less than thirty ^^^'^^°'^^ 
 or sixty days after the filing of the petition, the object being 
 to allow a sufficient time in which the voters may familiarize 
 themselves with the question. In California, however, the 
 governor may order a special election, at his discretion ; and in 
 Maine, on petition, he may also do that, provided the general 
 election does not take place within six months. 
 
 Certain advocates of direct legislation argue that the meas- considera- 
 ures should always be considered at a special election, where measures at 
 their merits might be appreciated apart from the issues of an eilctTo'n^ 
 ordinary campaign. There are two objections to this proposal. 
 In the first place it is to be doubted whether a sufficiently large 
 
 iSee Index Digest of State Constitutions, pp. 781-782. 
 2Article XL VIII, The Referendum, III, Sect. ii. 
 
 3 Colorado, Montana, New Mexico. Michigan excludes from the 
 referendum bills to meet deficiencies in state funds.
 
 120 STATE AND MUNICIPAL GOVERNMENT 
 
 Biennial 
 elections 
 and direct 
 legislation 
 
 Special 
 ballots 
 
 proportion of the electorate would ordinarily attend a special 
 election at which only referenda propositions were considered. 
 As a result the measures would be adopted or rejected by a 
 minority of the voters/ On the other hand, if the state re- 
 quired a rather high percentage of the electorate to vote at the 
 election, the measures might fail because of nonattendance by 
 such a proportion of the voters. 
 
 There are almost equal objections to the consideration of 
 measures for direct legislation at a general election. As has 
 been seen, the ordinary ballots are already too long and in 
 many states, where the initiative and referendum are frequently 
 invoked, they are grossly overloaded. The voter is confused; 
 he frequently is subject to what may be called "electoral 
 fatigue" and thus fails to mark many of the proposals upon 
 the ballot. On the other hand, when he is confronted by a 
 large number of proposals the voter may unthinkingly mark 
 them all indiscriminately Yes or No. In either case the elec- 
 tion does not give a fair test of public opinion. 
 
 With the growth of the movement for biennial elections and 
 the increasing use of direct legislation a new problem appears. 
 The laws passed by the legislature may be suspended for two 
 years by the process of a petition for a referendum. Because 
 of this fact the temptation to attach emergency clauses to the 
 ordinary laws is increased. There are instances, indeed, of 
 improper actions by particular groups in putting off the opera- 
 tion of a law by invoking the referendum. It would therefore 
 seem advisable that more general provisions be made for 
 holding special elections. 
 
 To obviate the difficulty of overloading the regular ballot 
 some states — for example, Ohio — require that the referenda 
 propositions shall be placed upon a special ballot. This has 
 the merit of relieving the general ballot and, at the same time, 
 of concentrating the attention of the voter upon the special 
 provisions on which he is voting. 
 
 In order to protect the electorate from being overburdened 
 with deciding questions of direct legislation, certain states limit 
 the number of propositions which may appear upon the ballot 
 
 ^See pages 121-122.
 
 INITIATIVE, REFERENDUM, AND RECALL 121 
 
 at any one time.^ Some states prohibit placing a proposition Limitations 
 on the ballot until the preceding one has been disposed of. and""™-^"^ 
 This is particularly true with regard to constitutional amend- '^"f"*'^ °^ 
 ments. Other states, among them Massachusetts and Nebraska, submitted 
 prohibit the submission of a measure which has been submitted 
 to the people within the last three years. 
 
 In general, two methods are used for determining the vote neces- 
 vote necessary for adoption of a measure. All that is neces- adoption: 
 sary in some states is a majority of the votes cast upon the ■ty'to't^ng'^' 
 proposition.- Other states require a favorable majority of thereon 
 those voting at the election. The first requirement is hardly 
 sufficient ; experience shows that the proposals for direct legis- 
 lation attract a much smaller vote than the vote for the election 
 of officers. Still, as Professor Holcombe has pointed out,^ a 
 distinction must be made between the compulsory and the 
 optional referendum. A far larger proportion of the electorate 
 expresses its opinion under the optional than under the com- 
 pulsory referendum. This requirement frequently prevents f2)Amajor- 
 the adoption of measures for which a substantial number of theTiectfon 
 people have voted. Thus, in Arkansas in 1916 the total vote 
 for the candidates at the election was 167,505; "Good Road 
 Tax" measure was approved by 82,503 to 66,150, — a majority 
 of 16,353, — yet it failed to pass because the favoring vote was 
 not a majority of those who voted at the election.* 
 
 A variant of the provision requiring simply a majority of (3) a ma- 
 
 those voting thereon is found in the Massachusetts amendment those voting 
 
 of 1918,^ where a constitutional amendment proposed by the ^^0^^^°^ 
 
 initiative requires a majority of those voting thereon, pro- ^^^g^'"g_ 
 
 vided such is ^0 per cent of the total number of ballots cast quirements 
 . Z, , r -11. ^ are fulfilled 
 
 at the election. The same amendment^ provides that an act 
 
 1 Bulletins for the Massachusetts Constitutional Convention, Vol. I, 
 pp. 217-218. 
 
 -C. O. Gardner, "Problems of Percentages in Direct Government," 
 in American Political Science Review, Vol. X, pp. 500-515. 
 
 ^State Government in the United States, pp. 406-407, 412. 
 
 4 Bulletins for the Massachusetts Constitutional Convention, Vol. I, 
 p. 216. 
 
 5 Article XLVIII, The Initiative, IV, Sect. v. 
 
 6 The Referendum, III, Sect. iii.
 
 122 STATE AND MUNICIPAL GOVERNMENT 
 
 of the legislature shall not be rejected if the negative vote is 
 less than 30 per cent of the total number of ballots cast at 
 the election. A similar provision requiring a negative vote 
 of 40 per cent is found in the constitution of New Mexico. 
 There is much to be said in favor of this method of determin- 
 ing the majority necessary for adoption or rejection of a 
 measure. It avoids the difficult requirement of a majority vot- 
 ing at the election, but at the same time insures a more sub- 
 stantial number of votes than the requirement of a majority of 
 those voting upon the measure. 
 Veto of the After a measure has been approved at the popular election 
 gov nior ^^^ question arises whether this is subject to the executive 
 veto. Fifteen states answer this in the negative. If the theory 
 on which the initiative and referendum are based is accepted, 
 it is difficult to see why the executive should be allowed to 
 thwart such an expression of the popular will. No state ever 
 allowed the governor to veto a constitutional amendment 
 adopted by popular vote, and it seems as if the referendum 
 as applied to statutes should have an equal protection against 
 executive interference. The control of the governor through 
 his veto is political ; the action of the popular referendum is a 
 political action of an even more decisive sort. Statutes adopted 
 by the referendum are of course open to judicial interpretation 
 and may be declared unconstitutional by the court. 
 Legislative There is little consistency among the states in dealing with 
 orTepeai^" the matter of the appropriateness of legislative amendment to 
 leglsiauon ^^^^^^ legislation. Oklahoma declares that the initiative and 
 referendum shall not deprive the legislature of the right to 
 repeal or pass any law. At the other extreme, Arizona ex- 
 empts initiative or referendum measures, approved by the 
 electors, from the operation of the executive veto and legisla- 
 tive amendment. Washington gives a two years' immunity to 
 acts approved by the majority of the electors voting thereon, 
 and Nevada three years to measures proposed by the initiative. 
 California and Michigan provide that no law adopted under 
 the initiative may be amended.' 
 
 'In Michigan no law so adopted may be repealed (Bulletins for the 
 Massachusetts Constitutional Convention, Vol. I, pp. 196, 217-218).
 
 INITIATIVE, REFERENDUM, AND RECALL 123 
 
 The effect of direct legislation upon the legislature and its The effect 
 power will be considered in a later chapter. In the present "nitfative 
 chapter the topics which should be discussed deal with the ^°^ ^^^^^' 
 
 '^ ^ endum: 
 
 electorate, the political parties, and the ballot. 
 
 One of the theoretical justifications for direct legislation is d) upon the 
 its effect upon the electorate. It is held to have an educative 
 value, and it is claimed that if the people have the opportunity 
 to express directly their opinions upon measures, they will 
 inform themselves concerning the merits of these measures 
 and will take an intelligent interest in the government. It is 
 claimed, also, that much misgovernment is due to the listless- 
 ness and ignorance of the electorate. Once give the people, it 
 is said, the opportunity to act directly and their interest will 
 prevent many of the unfortunate results of representative 
 government. These assertions rest upon the theory that the 
 people will take interest in the initiative and referendum. This 
 is directly denied by some, and experience in some states 
 supports this denial. Before accepting it in full, however, an 
 analysis should be made of the apparent interest expressed by 
 the people on the various kinds of referenda and the character 
 of the measures submitted to them. It has been shown ^ that 
 much more interest is excited by the optional than by the com- 
 pulsory referendum. The poor record which many of the 
 Eastern states make has been due largely to the fact that in 
 the past the electorate had experienced only the compulsory 
 referendum. The only measures which were submitted to it 
 were constitutional amendments or measures on which the 
 legislature did not care to express a definite opinion. In states 
 where the optional referendum exists much more interest is 
 aroused. The interest, moreover, varies with the character of 
 measures which are submitted to the people. No lack of in- 
 terest is found on large measures, such as licensing the sale of 
 intoxicants. In the same manner the people are eager to 
 express their opinion about appropriations, and not always 
 wisely as regards salaries and compensations. On the whole, 
 it may be affirmed safely that in those states where the optional 
 referendum has been in use for a decade the electorate is 
 
 lA. N. Holcombe, State Government in the United States, pp. 404-407.
 
 124 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) On 
 
 political 
 
 parties 
 
 (3) On the 
 machine 
 
 keenly interested in the problems presented to it. That it 
 always decides wisely is, of course, a question of opinion, but 
 that it generally obtains its desires is a matter beyond dispute. 
 The danger lies in the possibility that the electorate, conscious 
 of its power, will use the initiative and referendum too fre- 
 quently, and in some states this has doubtless happened. In 
 justification, however, it should be said that in those states 
 where the use of the referendum or the initiative has ap- 
 parently been excessive the legislatures were not truly repre- 
 sentative of the people, but were too often controlled by groups 
 or machines. Direct legislation certainly gave the people of 
 California the control of their state government. As the 
 novelty of the initiative and referendum has worn off, its use 
 for frivolous or novel matters has declined. An exception might 
 be found in South Dakota, where the Nonpartisan League, 
 through the initiative and referendum, succeeded in putting 
 into effect some of the radical features of its program. 
 
 Theoretically, the effect of direct legislation on political 
 parties should be bad. A political party, filling its proper func- 
 tion, ought to be held responsible for the legislation it supports. 
 Anything which weakens this responsibility and allows the 
 political party to shift its burden directly to the unorganized 
 electorate is unfortunate. Practically, however, political par- 
 ties are not very greatly concerned over general measures of 
 state legislation. As will be seen, there is less party voting in 
 state legislatures than in Congress, because in state politics 
 political parties are more concerned over the election or selec- 
 tion of officers and the appropriation of money than over the 
 general course of legislation. Exceptions, of course, are numer- 
 ous. Since, then, political parties too frequently escape the 
 responsibility for legislation, the initiative and referendum can- 
 not be held responsible for any of their weaknesses. Direct 
 initiative and legislative referendum positively enable the elec- 
 torate to obtain the enactment of measures which political 
 parties might refuse. 
 
 The initiative and referendum give the electorate the oppor- 
 tunity to break the power of the machine. As has been seen, 
 the majority of the electorate votes a partisan ticket, and in
 
 INITIATIVE, REFERENDUM, AND RECALL 125 
 
 that lies the strength of the machine. If the machine controls 
 the individual legislators, as it frequently does, there is little 
 hope that the electorate can obtain the measures it desires 
 in opposition to the machine. The initiative and referendum 
 are nonpartisan agencies. The measures appear in no party 
 column, with no party symbol, and voting on them can hardly 
 be controlled. The machine is less able to manage its adher- 
 ents or the mass of the electorate on these measures than it is 
 in the choice of officers. In more than one state the initiative 
 and referendum have been successfully invoked to break the 
 power of the machine. 
 
 The effect of the initiative and referendum on the ballot is U) on the 
 unfortunate. In almost every state the ballots are already too 
 long and make too great a demand upon the electorate. Very 
 often the very size of the ballot causes the voter to neglect to 
 express an opinion upon the referenda. This may be the ex- 
 planation of the smallness of the vote in some states. One 
 method of overcoming this evil is to provide a special ballot 
 for the referenda ; another is to submit the referenda to the 
 voters at a special election. The disadvantages of the latter 
 plan have already been discussed ; the plan of a special ballot 
 has the advantage of attracting the voter's attention to the 
 proposals and of shortening the ballot for the choice of officers, 
 but it has the disadvantage of complicating the actual process 
 of casting and counting the ballots. 
 
 In spite of all criticism, both of the theory of direct legisla- summary 
 tion and of the details of any particular system, the initiative 
 and referendum have probably become a permanent part of the 
 political machinery of the states. No state which has adopted 
 these instruments has ever abolished them, and more and more 
 states are adopting them. The system, in order to work sat- 
 isfactorily, should provide (i) that the measures should be 
 framed fairly and without ambiguity; (2) that they should be 
 sponsored by an interested group of the electorate; (3) that 
 they should be adopted only upon the approval not of a mere 
 majority of those voting thereon, but of a considerable propor- 
 tion of the electorate; (4) that the decisions of the initiative 
 and referendum should not be subject to executive veto. The
 
 126 STATE AND MUNICIPAL GOVERNMENT 
 
 preceding pages have attempted to show how these principles 
 have been estabhshed in different states. The variations de- 
 scribed show that there is no consensus of opinion as to the 
 best method of attaining the desired ends. 
 
 The recall 
 
 How the 
 recall is 
 invoked 
 
 Number of 
 signatures 
 necessary 
 to invoke 
 the recall 
 
 The Recall 
 
 The recall is a device by which a public officer who is 
 unsatisfactory to the people who elected him may be removed 
 from office before the expiration of his term.^ The recall is 
 not new in the constitutional history of the United States — it 
 was contained in the Articles of Confederation. In its modern 
 form it was first introduced into municipal government in the 
 charter of Los Angeles in 1903, and is now found in an increas- 
 ing number of city charters.- As applied to state government, 
 it made its initial appearance in Oregon in 1908 and is found 
 in nine other states in some form or other. ^ 
 
 Like the initiative and referendum, the recall originates with 
 a petition. This petition, which is addressed to the governor, 
 may, as the Arizona form provides, bluntly make a demand : 
 "Sir: We, the qualified electors of the electoral district from 
 
 which was elected, demand his recall." Or it may, 
 
 in more suave terms, request the governor to proclaim a special 
 election for voting upon the question of whether or not an 
 officer should be recalled. 
 
 Eight of the states require that the petition should be signed 
 by 25 per cent, one by 10 per cent,' and one by 12 per cent.^ 
 There is no uniformity, however, as to what this percentage 
 should be reckoned upon. Kansas takes as a base the electors 
 of the state ; Michigan, the number of votes cast for governor ; 
 
 1 Sec Bulletins for the Massachusetts Constitutional Convention, 
 Vol. II, pp. 287-301. This contains a brief bibliof;raphy. As in the case 
 of the initiative and referendum there is a large amount of literature 
 on this subject. Attention should be directed to W. B. Munro (ed.), 
 The Initiative, Referendum, and Recall. 
 
 -See pages 408, 439, 448. 
 
 •■'Arizona, California, Colorado, Idalio, Kansas, Louisiana, Michigan, 
 Nevada, Oregon, Washington. American Year Book, 1919. 
 
 ■•Kansas. f* California.
 
 INITIATIVE, REFERENDUM, AND RECALL 127 
 
 Oregon and Idaho, the number of votes cast for all candidates 
 for justice of the supreme court in the last preceding election; 
 four states take the number of votes cast at the preceding 
 election for the office held by the incumbent whose removal is 
 desired. This is the most logical base to assume. 
 
 If a sufficient number of names have been secured for the operation 
 petition the officer must be informed that a recall has been 
 initiated against him. At the election the petitioners are re- 
 quired to state the reasons for demanding the recall in a para- 
 graph of one hundred or two hundred words in length, and 
 the incumbent may be given a similar privilege of defense. 
 The latter, however, has another course open to him — he may 
 voluntarily resign his office rather than stand the trial of an 
 election. In this case the recall election amounts to nothing 
 more than an election to fill a vacancy. California submits to 
 the voters, on the same ballot with the name of the new candi- 
 date for the office under dispute, the question. Shall the in- 
 cumbent be recalled? If a majority of those voting are in 
 favor of this question, the votes for the candidate or candidates 
 for the office which the incumbent occupies are counted and 
 the candidate receiving the plurality is declared elected. 
 
 Most of the states which have introduced the recall extend what 
 it to every elective officer. Idaho, Louisiana, ISIichigan, and be recalled^ 
 Washington except judges, while Arizona provides for ''an 
 advisory recall for United States officers, whether elected 
 or appointed." 
 
 By statute Arizona allows candidates for federal offices the The 
 privilege of signing one of two statements. The first statement recan°oT 
 
 reads, "If elected to the office of , I shall deem myself ^^^H^l 
 
 responsible to the people, and under obligation to them to 
 resign immediately, if so requested by an advisory vote." 
 The second statement declares that the candidate shall not 
 deem himself obliged so to resign. In the preparation of the 
 official ballot the secretary of state is directed to place under 
 the candidate's name, on the ballot, "Pledged to advisory 
 recall," or "Refuses to pledge to advisory recall," or "Silent as 
 to advisory recall." A similar device is provided for recom- 
 mendations to the president for appointive federal officers.
 
 128 STATE AND MUNICIPAL GOVERNMENT 
 
 Frequency Until 1 92 1 the recall was not used for any state officer 
 of the recall chosen by the electorate at large. Its ordinary use was in 
 municipal affairs where mayors, attorneys, and municipal judges 
 were subject to recall petitions. The effect of the recall upon 
 the judiciary and the use of the recall in commission and city- 
 manager governments will be discussed in subsequent chapters. 
 The recall In 1921, however, a state-wide recall was attempted in North 
 Dakota Dakota. This was invoked by the opponents of the Non- 
 partisan League, which had been successful at the previous 
 election. In carrying out their program the Non-Partisan 
 League extended the functions of state activities into fields 
 which were formerly preserved for private enterprise. Particu- 
 larly was this true in banking. The accusation was brought 
 against some of the officials chosen by the Non-Partisan League 
 that they were socialistic and the financial success of some of 
 their enterprises was dubious. Consequently the opponents of 
 the league successfully invoked the recall against the governor, 
 attorney-general, and commissioner of agriculture and labor, 
 and succeeded in electing their candidates.
 
 PART III 
 
 ORGANIZATION AND FUNCTIONS OF 
 STATE GOVERNMENT
 
 CHAPTER VII 
 
 THE STATE GOVERNOR 
 The executive department in state governments is decen- The 
 
 executive 
 
 tralized. This is in sharp contrast to the executive depart- department 
 ment of the national government and the usual condition in 
 municipal government. In part this may be explained on his- 
 torical grounds. When the American states achieved their 
 independence the reaction against the tyranny of Great Britain, 
 which, as they knew it, was a tyranny of the executive, led 
 them to establish legislative supremacy. The provincial gov- 
 ernor^ in the American colonies was the instrument of British 
 oppression. The colonial assemblies had been the means by 
 which British oppression had been resisted. Thus the early 
 constitutions of every American state exalted the power of the 
 legislature and limited the executive department. Roughly it 
 may be said that until the first third of the nineteenth century 
 legislative supremacy was recognized in most of the American 
 states. Three influences brought about a change of policy. 
 In the first place, the state legislatures proved inefficient and 
 in some instances corrupt. In the second place, with the 
 movement toward democracy and the election of the governor 
 by the people, that official came to represent the entire electo- 
 rate of the state far better than a group of representatives, each 
 chosen from small districts and too often selfishly attached to 
 local interests. A third influence was the extension of the 
 functions of the state into new fields, which demanded the 
 creation of new executive offices. This began at the time 
 when the democratic movement was strong and the distrust 
 of the legislature almost equally strong. As a result many of 
 the new executive officers were chosen directly by the people. 
 
 iThe most exhaustive treatment of the provincial governor is in 
 E. B. Greene's "The Provincial Governor in the English Colonies of 
 North America." 
 
 131
 
 132 STATE AND MUNICIPAL GOVERNMENT 
 
 The 
 
 provincial 
 
 governor 
 
 The state 
 governor 
 
 The combination of these three tendencies gave to most Ameri- 
 can states at the end of the nineteenth century a plural execu- 
 tive department composed of numerous officials, many of 
 whom, being directly chosen by the electorate, were on a par 
 as far as authority went, and responsible not to any one 
 executive official but to the electorate. At the close of the 
 nineteenth century came a movement to integrate the execu- 
 tive department and to vest in the governor the appointment 
 and thus the direction of a larger number of officials. The move- 
 ment was undertaken in the desire to increase efficiency and 
 was perhaps hastened by the success which had been brought 
 about by concentration of executive power in municipal affairs. 
 The state governorship was the first executive position created 
 by the states even before they actually achieved their inde- 
 pendence. They had in mind an office which they desired 
 not to perpetuate but to avoid. The provincial governor had 
 held office for no fixed term, but served during pleasure.^ He 
 had had the power to summon, prorogue, and dissolve the 
 colonial legislatures. He had had the absolute power of veto 
 and a large appointing power. He had been commander in 
 chief of the colonial militia, and in many colonies had exercised 
 equity and admiralty jurisdiction. He and his council, which, 
 
 < 
 
 as a rule, he nominated, had been the highest court of appeal 
 in the colonies.'- His powers were so wide and his influence 
 so great that had Great Britain appointed abler men as provin- 
 cial governors and supported them more consistently, the task 
 of achieving independence would have been far more difficult. 
 The early state constitutions generally provided that the 
 governor should be chosen by the legislature.-' This, however, 
 
 iln Connecticut and Rhode Island the governor was chosen by the leg- 
 islature and had little power. In the proprietary colonies he was appointed 
 by the proprietor. 
 
 - In Connecticut, Massachusetts, and Rhode Island the council was elected. 
 
 "J. M. Mathews, Principles of American State Administration. Chaps, 
 ii-v deal with the state governor and his powers. See also J. H. Finl^y 
 and J. F. Sanderson, The American Executive and Executive Methods, 
 chaps, iv-xii ; also A. N. Holcombe, State Government in the United 
 Slates, chap, x, and J. A. Fairlie, "The State Governor," in Michigan 
 Law Review, Vol. X, pp. 370-383, 458-475-
 
 THE STATE GOVERNOR 133 
 
 tended to make him a mere agent of the legislature rather Election 
 than an independent executive, and violated that principle of 
 separation of departments which was more or less consciously 
 held by the states. Today the governor in forty-seven states 
 is chosen by direct popular vote.^ It should be remembered 
 that although elected by the people the choice of the governor 
 is the result of action by the party system. He is nominated 
 in conventions or direct primaries and elected at the polls. 
 In most states a plurality of votes is sufficient for election. 
 In three states a majority is required.^ In case no candidate 
 receives this majority the election is thrown into the legisla- 
 ture. In all states where two candidates receive an equal 
 number of votes the legislature by different processes selects 
 the governor. 
 
 In New Jersey the governor is elected for three years. In Term 
 twenty-five states, including all the New England states, 
 New York, Ohio, Wisconsin, Kansas, and New Mexico, the 
 term is two years. In twenty-two states, including Pennsyl- 
 vania, most of the Southern states, Indiana, Illinois, and the 
 Pacific states, the term is four years. The general tendency 
 has been to increase the length of the governor's service in 
 order that he may carry out the policies for which he stood 
 on election. 
 
 All states provide for the removal of the governor by im- Removal: 
 peachment.^ This, according to the ruling of the New York J^g^^f^;^^'^; 
 court, is a judicial process. The governor may be impeached 
 by the lower house of the legislature and tried by the senate. 
 In general, it requires a vote of two thirds of the senate to 
 convict and remove the governor. 
 
 In ten states the governor may be removed by a recall.* (2) By 
 Should this happen the candidate chosen by the electors fills ^ 
 out the unexpired term of the governor. 
 
 iJn Mississippi he is chosen by the majority of the popular and the 
 electoral vote. The electoral vote is obtained by giving to the candi- 
 date receiving the highest vote in each county as many electoral votes 
 as the county has representatives. Constitution of Mississippi, Article V, 
 Sect. 140. 
 
 2 Georgia, Mississippi, Vermont. 3 Except Oregon. 
 
 *See page 126.
 
 134 STATE AND MUNICIPAL GOVERNMENT 
 Filling of About two thirds of the states provide for a lieutenant 
 
 vacancies 
 
 governor chosen in the same way and thus generally from 
 the same party as the governor. In some states he has few 
 functions other than those of an heir apparent ; in others he 
 may preside over the senate ; and he frequently serves ex 
 officio on various commissions.^ In case of the death, resigna- 
 tion, or removal of the governor by impeachment the lieutenant 
 governor succeeds to office and the same party policy is 
 continued. Where the governor, however, is removed by recall 
 (up to 192 1 no governor has been so removed), a new governor 
 is elected for the remainder of the term, 
 compensa- The Salaries of the governors are small. Illinois pays $12,000 ; 
 governor California, Massachusetts, New York, New Jersey, Ohio, and 
 Pennsylvania, Sio,ooo; Nebraska, $7500. The lowest salary is 
 $2500. Although the powers and governmental functions of 
 the governor are far greater, they are not so well paid as the 
 mayors of large cities. 
 The powers The powers of the governor may be classified as legal and polit- 
 governor ical. The legal powers include those which are granted directly 
 by the constitution, those which are inherent in the executive 
 office, and those which are granted him by acts of the legisla- 
 ture. The political powers of the governor have their basis in 
 the political system of the state — in the fact that the governor 
 is the choice of a party system and frequently the most in- 
 fluential person in the party. The governor may use many of 
 his constitutional powers for political purposes, and very fre- 
 quently he uses his political influence for purposes not contem- 
 plated by the constitution. Particularly is this true in his 
 dealings with the legislature. The powers of the governor may 
 be further classified as legislative and executive. The legisla- 
 tive functions include the right to submit messages and the 
 power of veto ; the executive functions cover the field of 
 appointment, pardon, supervision of administration, and the 
 military power. 
 The legisia- In the early constitutions of the states the governors had 
 ^ive^power pj.,j(,^jj.y|]y j^^ legislative power. Starting from what was almost 
 governor: a negation of such power, the governor has become virtually 
 1 See American Political Science Review, Vol. XI, p. 88.
 
 THE STATE GOVERNOR 135 
 
 a third house of the legislature. He has done this through 
 the addition of constitutional powers and through the use of 
 his political power. 
 
 The regular sessions of the legislature are fixed by the con- d) Power 
 stitution. But with the decreasing frequency of such regular the^'ie^^ia- 
 sessions has come the necessity of summoning special sessions. *"'''' 
 This power is vested in the governor. An interesting question 
 arises concerning the power of the legislature after it is sum- 
 moned in a special session. In some states the legislature is 
 prohibited from taking action on any measures except those 
 designated by the governor in the proclamation summoning a 
 special session. This prohibition has at times compelled the 
 governor to summon another special session, and in 19 12 there 
 were in Illinois two special sessions of the legislature simul- 
 taneously in session.^ A better practice is to limit the legisla- 
 ture to action on such matters as shall be contained in the 
 governor's call or submitted to it by him during the session. - 
 
 The provincial governor had the power to dissolve the (2) Adjoum- 
 colonial assemblies and to order a new election. No state prorogation, 
 governor may do this. The time of the assembling of the <i'ssoiutioii 
 legislature is fixed by the state constitution and in some states 
 the length of the sessions also. Where this duration is not so 
 determined, the legislature and not the governor decides as to 
 adjournment. In some states, in case of emergency, like an 
 epidemic or an uprising, the governor may convene the legisla- 
 ture at some other place than the state capital, but this power 
 can be exercised only in the recess of the legislature. When 
 the legislature assembles the governor's action in proroguing 
 it to another place may be revised. 
 
 Logically, the governor's legislative iniluence begins with (3) intro- 
 his message. In every state he has power to submit by mes- o"meas- 
 sage matters for the consideration of the legislature. Generally ^^^^' ^^^, 
 
 ° o , governor's 
 
 these messages are in the nature of recommendations, and message 
 
 ^In 1Q13 a special session of the New York legislature impeached 
 Governor Sulzer. This, the New York, court held, was a judicial, not a 
 legislative, performance. 
 
 -This is the practice in Florida, Mississippi, Montana, Nevada, and 
 Utah.
 
 , 136 STATE AND MUNICIPAL GOVERNMENT 
 
 rarely does the governor by a message introduce an "adminis- 
 tration bill." There is, however, nothing to prevent him from 
 so doing, and in such case that portion of his message would 
 be referred to the proper committee. The governor's messages, 
 moreover, may contain exhortations to the legislature urging 
 them to follow a certain course or adopt a specified measure. 
 The message, moreover, may constitute a threat that a meas- 
 ure, if passed in a certain form, will be vetoed. The effective- 
 ness of the governor's message is measured not so much by 
 his constitutional power as by his political influence. Where 
 a governor belongs to the majority party of the legislature 
 his message is generally obeyed. It may happen, however, that 
 although the governor and the majority of the legislature are of 
 the same party some other person than the governor — a leader 
 or a boss — may have greater influence with the legislature. 
 (4) The gov- One of the most effective instruments which the governor 
 
 ernor'sveto , . , ,. • i 1 , . 1 . , 
 
 has m dealmg with the legislature is the executive veto.^ In 
 the early constitutions only two states gave him this power. 
 In the original Massachusetts constitution the governor was 
 given a qualified veto. He returned to the legislature meas- 
 ures of which he disapproved. If the legislature repassed these 
 measures by a two-thirds majority in each of the houses, the 
 act became a law in spite of the governor's objection. In many 
 states it was thought that this method gave too great a power 
 to the governor. Kentucky in 1799 revised its constitution 
 and provided that the legislature, by a simple majority of all 
 the members elected, might pass a law contrary to or despite 
 the objections of the governor. This method was popular dur- 
 ing the first half of the nineteenth century, but has not been 
 generally adopted. North Carolina is the only state which 
 does not provide for some form of the executive veto. 
 
 In the type of veto just discussed opportunity is given for 
 the legislature to pass the law over the governor's objection ; 
 
 ^See J. A. Fairlic, The Veto Power of the State Governor, in 
 American Political Science Review, Vol. XI, pp. 473-404; J. H. Finley 
 and J. F. Sanderson, The American Executive and Executive Methods, 
 chap, vi; .\. N. Holcombe, State Government in the United States, 
 PP- 327-344-
 
 THE STATE GOVERNOR 137 
 
 that is, his veto is not absolute. In most state constitutions 
 the governor is required to return measures submitted to him 
 by the legislature within a certain time — from three to ten days. 
 However, should the measures be passed in the last days of 
 the legislature, and the legislature be adjourned either by con- 
 stitutional requirement or by its own action, the governor 
 would have a certain time in which to examine bills and either 
 approve or disapprove them. In case he disapproves them, the The 
 legislature not being in session, his veto would be absolute, veto after 
 for there would be no opportunity for legislative reconsidera- ^j^"*^"' 
 tion.^ It was hardly contemplated by the framers of the 
 state constitutions that this would frequently occur. But the 
 increase of legislative business, and in particular the hurried 
 passage under suspension of rules of an immense number of 
 measures in the last days of the legislature, has greatly in- 
 creased the possibility and even the necessity of the governor's 
 absolute veto. In fact, some state constitutions — for example, 
 California and New York — allow the governor thirty days 
 in which to consider bills and approve or disapprove them. 
 This makes him literally a third house of the legislature, from 
 whose decision there is no possible appeal. 
 
 Originally the governor was compelled to accept or veto an The item- 
 entire measure. This frequently presented a serious dilemma. 
 Parts of a measure might be good, while he might not approve 
 of other portions. Particularly was this true with regard to 
 appropriation bills. In addition, state legislatures sometimes 
 follow the unfortunate practice of attaching ''riders"; that is, 
 bits of legislation not connected in subject matter, but inserted 
 in the bill. This happens most often in the case of appro- 
 priation bills. The governor would be obliged either to accept 
 a piece of legislation of which he did not approve or else 
 veto an entire measure which might be perhaps an important 
 appropriation bill. The constitutions of many states, how- 
 ever, provide that no bill except an appropriation bill should 
 embrace more than one subject. This prohibition was not 
 
 ^Some states — like the federal government — provide for a "pocket 
 veto." This is where a bill passed in the last days of the session and 
 not signed by the governor after adjournment fails to become a law.
 
 138 STATE AND MUNICIPAL GOVERNMENT 
 
 The extent 
 and influ- 
 ence of the 
 governor's 
 veto power 
 
 Popular 
 opinion 
 regarding 
 the veto 
 
 sufficiently effective, and considerable latitude was allowed in 
 the interpretation of what should constitute a single subject. 
 Moreover, appropriation bills were especially excepted from, 
 this prohibition. Consequently the majority of the states have 
 adopted what is known as the item-veto, applicable to appro- 
 priation bills, and three of these states allow the governor to 
 approve of sections of any bill.^ Several states go even further 
 and allow the governor to reduce the items voted by the leg- 
 islature in an appropriation bill. In this respect we find the 
 governor's legislative power reaching its highest point. He may 
 not only disapprove of legislative action but may substitute his 
 own discretion for that of the legislature. 
 
 The veto power is widely used, but not evenly distributed. 
 In 1 91 5 over a thousand bills or parts of bills failed to become 
 law because of the governors' veto. In New York, in 1915, 
 about 23 per cent of the measures or parts of measures passed 
 were successfully vetoed by the governor, in California 22 per 
 cent, in Pennsylvania 21 per cent. In the same year, how- 
 ever, not a single bill was vetoed by the governor of Rhode 
 Island.- The vetoes were overwhelmingly successful. In the 
 particular year under consideration only 2 per cent of the gov- 
 ernor's vetoes were overridden. The effectiveness of the gover- 
 nor's veto is, of course, vastly increased when the veto is an 
 absolute one, as it is in the case of measures submitted to him 
 at the close of the session of the legislature. 
 
 Very little criticism is aimed at state governors for their use 
 of the veto. In fact, it is frequently the case that a governor's 
 reputation rests upon his vetoes. Not only does he often check 
 unwise legislation and extravagant appropriations, but he per- 
 forms for the legislature duties which, either through lack of 
 time or ability, they do not perform for themselves. Cases 
 are not wanting where the legislatures have passed duplicate 
 bills, bills in conflict with one another, or defectively drawn 
 bills, relying upon the careful review given by the executive 
 to correct their errors. 
 
 'South Carolina, Virsinia, and WashinRton. For a discussion of this see 
 
 J. M. Mathews, Principles of .American State .Xfiministration, pp. 01-62. 
 
 ^A. N. Hokombc, State Government in the United States, pp. 327-331.
 
 THE STATE GOVERNOR I39 
 
 The veto is the strongest weapon in the governor's political Effect of 
 
 . , . the veto 
 
 arsenal. He may use it to punish too indepenaent members upon the 
 of his party and to consolidate his own personal influence, posuion"^^ 
 This is especially true where the veto exists for separate items 
 in appropriation measures. The governor may consider not 
 simply the merits of a particular appropriation but may weigh 
 the loyalty of the member desiring the appropriation and de- 
 cide whether or not his conduct deserves reward. Through 
 the threat of a veto the governor may compel the legislature 
 to revise or amend a proposal. 
 
 The executive power of the state governor includes the power The execu- 
 of appointment and removal, the supervision of administration, ofWr^ "^ 
 the enforcement of the laws, the military power, and the power governor: 
 of pardon. As has been said, all this authority is not concen- 
 trated in the hands of the governor but is everywhere shared 
 by the governor with other officials or bodies. The Constitu- 
 tion of the United States declares that the executive power shall 
 "be vested in a president," thereby centralizing the executive 
 authority. Although similar words are found in some state 
 constitutions the tendencies are otherwise. Recognizing this, 
 the majority of the state constitutions provide that "the 
 supreme [or chief] executive power shall be vested in a gover- 
 nor." The word "supreme" is in the nature of a limitation 
 and a recognition of the fact that there are other bodies exercis- 
 ing the executive function. State governors again are unlike 
 the president of the United States in that they have very little 
 inherent executive authority. The executive powers of the 
 state governors are generally granted explicitly either by the 
 constitution or by statute, and these are seldom inherent or 
 implied powers. 
 
 In the national government all officers are appointed by the (i) Power of 
 president of the United States or by subordinates whom he ment 
 appoints. This is not so in the states. Originally the gover- 
 nor's power of appointment was very slight, for practically all 
 the state officials were chosen by the legislature. Two tend- 
 encies may be observed. First, this power of selection was 
 taken from the legislature and vested directly in the people. 
 Throughout the greater part of the nineteenth century this
 
 140 STATE AND MUNICIPAL GOVERNMENT 
 
 tendency was given full sway, and most of the state officers 
 were popularly elected. Only subordinate officials were ap- 
 pointed. In the last decades of the nineteenth century, how- 
 ever, it was seen that popular election was not a satisfactory 
 method for selecting officials, and the appointment of most of 
 the new officers demanded by the increase and extension of 
 governmental activities was vested in the governor. In addi- 
 tion, the appointment of a few of the older officers was trans- 
 ferred also to the governor. Although these officers became 
 appointive, the governor was not given a free hand in his 
 appointments. Not until the twentieth century was there a 
 very widespread, successful movement to vest in the governor 
 alone the appointment of state officials. 
 Limitations Many limitations on the governor's power of appointment 
 governor's may be observed. In some states — INIassachusetts, for ex- 
 pointmenr" '^"ip^^ — ^^6 appointing powcr is checked by an executive 
 (o) confir- council. This is an anomaly inherited from colonial davs. 
 
 mation of 
 
 council or More oftcn the upper chamber shares with the governor the 
 appointing power, and the governor — like the president of the 
 United States — nominates, while the senate confirms the ap- 
 (6) compo- pointment. A second limitation upon the governor's power of 
 commissions appointment is found in the composition of the various boards 
 [Gradual and Commissions which he may select. These limitations may 
 renewal] j^^ ^^ ^j^^ nature of gradual renewal ; that is, allowing a gover- 
 nor in a single term to appoint only a portion of the board. 
 [Bipartisan Certain boards must be representative of more than one politi- 
 cal party, and the governor's power is thus limited. In some 
 [Residence] instances there are limitations of residence, which require, for 
 example, that a board should represent various sections of the 
 [Technical State. In some other cases, where technical qualifications are 
 tion's?*^* necessary, these serve as a limitation upon the governor's 
 power. It is difficult, however, to devise a restriction which 
 will be effective and at the same time not interfere with the 
 governor's power to appoint and the senate's power to approve. 
 [Ex-offlcio -Another restriction is found in the composition of e.\-officio 
 members] boards. In these, although the governor may appoint certain 
 members of the board, other members are placed u[3on the 
 board as the result of holding special offices, to which they are
 
 THE STATE GOVERNOR 141 
 
 generally elected by the electorate. A more important limita- [civii- 
 
 , , . ,- 1- • .1 • -1 • service 
 
 tion on the governor s appomtmg power lies m the civil-service regulations] 
 
 laws of the various states. 
 
 The theory of the civil-service laws is to insure that only civii- 
 ,.^ 1 11 1 -1 rr ITT- 1 service laws 
 
 qualified persons shall be appointed to state offices. vVith 
 
 this end in view a commission is established to examine appli- 
 cants for state positions and to certify their fitness to the 
 appointing authority. The civil-service commission is chosen The civil- 
 
 service 
 
 in various ways. In some states it is appointed directly by commission 
 the governor. Where this is done and the appointments are 
 for no fixed term the commissioners are generally amenable to 
 executive influence. Where the commissioners are appointed 
 by the governor with the consent of some other body and are 
 not removable, less executive influence may be exerted. Much 
 depends, however, on the character and independence of the 
 commission. 
 
 It is the duty of the commission to prepare examinations suit- work of the 
 able for applicants for any executive position covered by the 
 law. These examinations are taken by the candidates and are 
 rated by the examiners. The examinations vary greatly in 
 character from time to time. They are too often technical and 
 test the candidate's ability to prepare for and pass an examina- 
 tion rather than his capacity for executive work. Even this 
 type of examination, however, if honestly marked, may prevent 
 the appointment of the most inefficient political appointees, 
 although it will not guarantee the selection of able officials. 
 The work of the commissions is negative rather than positive. 
 Another criticism of the civil-service rules is found in the 
 numerous exemptions which the legislatures make. These ex- 
 emptions may apply either to the nature of the position — that 
 is, technical or confidential positions may be exempt — or to 
 the character of the candidate. For example, veterans of the 
 Civil War or subsequent wars may be exempted either com- 
 pletely or in part. These exemptions do much to break down 
 the competitive character of the examination. 
 
 It is a mistake to suppose that a position obtained through Removals 
 
 ,. , . ., . , . . under the 
 
 appointment according to the civil-service rules is permanent, civii-service 
 Removals are allowable. In fact, however, the civil-service ''"'^
 
 142 STATE AND MUNICIPAL GOVERNINIENT 
 
 rules may be criticized in that they make removals too difficult. 
 In most states, in order to remove an officer appointed under 
 the civil-service rules, notice must be given, a hearing must be 
 held, and cause for removal must be proved. In some states 
 the courts have decided that the cause which alone will justify 
 a removal must be such as can be proved in a court of law. 
 Therefore it is extremely difficult to secure removal for any 
 cause less serious than a crime. The result is that some states 
 afford the spectacle of the courts reinstating inefficient and 
 negligent officials to the service. In some states offices held 
 under the civil service have almost life tenure. 
 Results of While the civil-service examinations have perhaps prevented 
 service' ^he selection of the worst kind of political appointees, they 
 have not given the best type of public service. State adminis- 
 trative offices are too often filled with persons who have gained 
 their positions as the result of a successful examination and 
 who hold these positions in spite of increasing inefficiency. 
 The systems too generally do not provide for removals or 
 sufficiently rapid promotions on account of merit. The officials 
 so appointed tend to regard their positions as vested rights. 
 In spite of these criticisms, however, the civil-service system, 
 as applied to the states, has put an end to some of the greatest 
 scandals which formerly characterized state political life. 
 (2) Power of The president of the United States may remove all officers 
 he appoints except the judges. No such wide power is given 
 to the state governor. Wherever his power of appointment is 
 shared with another body the consent of this body must usually 
 be obtained for removal. This is a most serious limitation upon 
 the power of the governor to direct and control state adminis- 
 tration. In addition, it is generally held that where the gov- 
 ernor appoints an officer for a definite term either with or 
 without the consent of some other body, that officer may not 
 be removed except by impeachment unless other methods are 
 provided by law. It is almost needless to point out that the 
 officers elected directly by the people or by the legislature are 
 generally irremovable by the governor.' Such a condition of 
 affairs makes it almost impossible for the governor effectively 
 
 I Sec paRcs 132, 154, 162.
 
 THE STATE GOVERNOR 143 
 
 to control the administrative policy of the state. This has long 
 been recognized, and attempts more or less successful have 
 been made to widen the governor's power of removal. In some 
 states^ he may remove all officers appointed by him and even 
 elective officers "on the address of two thirds of the senate." 
 The state legislatures have also extended the governor's power 
 of removal. This is entirely possible in the case of officers 
 holding positions created by the legislature if the legislature 
 shall authorize such removals.- 
 
 Two classes of officers who execute the state laws are with- other 
 drawn from the power of the governor to appoint and remove, ur^n^he"^ 
 The first are the judicial officials of the state — the judges and governor's 
 
 •' J » power of 
 
 district or county attorneys. These are almost everywhere appoint- 
 chosen by direct election.^ In the second class are the local removal 
 officers — the county commissioners or supervisors, the sheriffs, 
 the mayors of the cities, and the heads of the police depart- 
 ment, together with many town and municipal officers charged 
 with the enforcement of state laws. The theory of local gov- 
 ernment allows the different localities to select their own of- 
 ficers, although these officers may be integral parts of the state 
 administration and share with the governor a part of the 
 executive power. In some states — New York, for example— 
 the governor has power to suspend and remove some of these 
 local officials, but generally this power of control is very slight, political 
 Next to the power of veto, the governor's power of appoint- quences 
 ment is his strongest political weapon. Although it is neither °**^^ 
 
 ^ ^ r- o governor's 
 
 absolute nor completely independent, yet a very large number povsrerofap- 
 of officials owe their political and official life entirely to the 
 governor. Thus, as in national and municipal affairs the execu- 
 tive, through the appointing power, may build up a personal 
 following, so the state governor, through the use of the patron- 
 age, may consolidate his position within his party. He may 
 do even more and, by sharing his appointing power with the 
 
 1 Arkansas, Colorado, Florida, Maryland, Nebraska, Pennsylvania, 
 West Virginia. 
 
 -See "Removal of Public Officers. A Ten-Year Review," in American 
 Political Science Review, Vol. VIII, pp. 621-629. 
 
 3 In Massachusetts, where the judges are appointed for life, they may 
 be removed by the governor on a joint address of the legislature.
 
 144 STATE AND MUNICIPAL GOVERNMENl 
 
 legislators, obtain from them support for his measures. This 
 power is actually far less than that of the president of the 
 United States or of the mayors of large cities because of the 
 many restrictions upon the free exercise of the governor's power. 
 
 (3) Power of The power to grant pardons for convictions of offenses is 
 pardon generally one of the governor's prerogatives.^ It is, however, 
 
 not an unlimited power nor is it always exercised independ- 
 ently by him. He is usually prohibited from granting pardons 
 for impeachments and often for treason. Of course it is obvi- 
 ous that the governor's power of pardon should be limited to 
 the proceedings of the courts of his own state ; for judgments 
 of courts of other states or of the federal courts he has no such 
 prerogative. In Connecticut the pardoning power is vested in 
 the legislature ; elsewhere it is vested in the governor or in a 
 board of pardons or council, or in both.- Sixteen states have 
 separate boards of pardons. In five states the board of pardons 
 has sole power. In others the governor has the pardoning power 
 on recommendation of the board or a council. The power to 
 pardon generally includes the power to remit fines, penalties, 
 and forfeitures and to grant reprieves and commutation of 
 sentences, although there are great variations in the practice 
 in various states. 
 
 (4) Miiiury In the constitutions of most states the governor is designated 
 
 as commander in chief of the militia. Actually, the governor, 
 like the president of the United States, never commands in 
 person. His military functions are generally exercised through 
 the adjutant general. The governor, however, commissions the 
 officers, although this is to a certain extent regulated by statute. 
 Use of the One power is given to every state governor except in Ten- 
 nessee. This is the power to call out the militia in case of 
 riot, disorder, or rebellion. In Tennessee'' the militia may be 
 called into service only when the legislature by law declares 
 
 ^See Bulletins for the Massachusetts Constitutional Convention, Vol.1, 
 No. 4. 
 
 -Maine, Massachusetts, and New Hampshire vest the jiowcr of jiar- 
 rlon in llic governor and the executive council. In thirty-two states tl:c 
 governor has sole power to pardon. 
 
 "Constitution of Tennessee, Article III, Sect. v.
 
 THE STATE GOVERNOR 145 
 
 that public safety requires it ; thus, should the necessity for the 
 utilization of force arise during the recess of the legislature a 
 special session must be called. Generally, however, the gov- 
 ernor does not call out the militia on his own initiative, but at 
 the request of the local authorities of the area in which the 
 disturbance occurs. When the militia of the states is sum- 
 moned by federal authority and incorporated with the mili- 
 tary forces of the United States the governor ceases to be 
 commander in chief. 
 
 Technically, martial law cannot exist within a state. The Martial law 
 militia and the use of the military force are but additional 
 police forces, not to wage war but to preserve the peace. 
 Nevertheless the governor may take certain steps in preserving 
 the peace which are not reviewable by the courts. Thus, in 
 1903 the governor of Colorado declared a certain portion of 
 the state to be in rebellion and arrested and detained certain 
 persons. The supreme court of Colorado held that his action 
 was not reviewable by the state courts. This opinion was 
 upheld by the Supreme Court of the United States, which, 
 speaking by Justice Holmes, said : 
 
 That means that he shall make the ordinary use of the soldiers 
 to that end ; that he may kill persons who resist, and, of course, 
 that he may use the milder measure of seizing the bodies of those 
 whom he considers to stand in the way of restoring peace. Such 
 arrests are not necessarily for punishment, but are by way of pre- 
 caution, to prevent the exercise of hostile power. So long as such 
 arrests are made in good faith and in the honest belief that they 
 are needed in order to head the insurrection off, the governor is 
 the final judge and cannot be subjected to an action after he is 
 out of office, on the ground that he had not reasonable ground for 
 his belief. . . . 
 
 No doubt there are cases where the expert on the spot may 
 'be called upon to justify his conduct later in court, notwithstand- 
 ing the fact that he had sole command at the time and acted to the 
 best of his knowledge. That is the position of the captain of a 
 ship. But, even in that case, great weight is given to his determina- 
 tion, and the matter is to be judged on the facts as they ap- 
 peared then, and not merely in the light of the event.^ 
 
 '^Moyer v. Peabody, 212 U. S. 78, 83, 84, 85, 86.
 
 146 STATE AND MUNICIPAL GOVERNMENT 
 
 (5) The gov- 
 ernor as rep- 
 resentative 
 of the state 
 
 The confer- 
 ence of 
 governors 
 
 The strong 
 governor 
 
 The governor represents the state in its official dealings with 
 other states. By the United States Constitution the states are 
 forbidden to make treaties, although they may make agree- 
 ments subject to the approval of Congress. In one way, how- 
 ever, the governor is the diplomatic representative of the state. 
 This is in cases of extradition.^ By the Constitution of the 
 United States persons "charged in any state with treason, 
 felony, or other crime, who shall tlee from justice and be found 
 in another state, shall, on the demand of the executive author- 
 ity of the state from which he fled, be delivered up. . . ." In 
 practice the governor of the state from which the fugitive has 
 filed makes this demand upon the governor of the state in which 
 the fugitive is apprehended. Although the provision of the 
 constitution is mandatory, a governor exercises his discretion 
 as to whether he shall honor such demand. 
 
 In 1908 began a series of conferences of the governors of the 
 different states. This was under the auspices of the national 
 government, and it was hoped that cooperation would be brought 
 about. The first sessions of the conference were extremely 
 interesting and suggestive, and it was believed that uniformity 
 of legislation and harmony of action might result. These hopes, 
 however, were not realized. Yet the conference is valuable 
 in furnishing a clearing house for the interchange of views, 
 and exercises, perhaps, an intangible influence. 
 
 During the first decade of the twentieth century several 
 states elected rather remarkable executives, — executives who 
 made themselves the real political leaders of the state both 
 in legislation and administration. To these governors was given 
 the name of "strong governors." In New York, Roosevelt may 
 be taken as an example ; in Missouri, Folk ; in California, 
 Johnson ; in New Jersey, Wilson. Considerable attention was 
 paid to their administrations, and it was felt that a new era 
 and a new development of the state e.xecutive had opened. In 
 some instances these governors were successful in leaving a 
 
 ^Kvcrett Kimball, National Govrrnment of the United States, pp. 80- 
 81; W. VV. WiilouKhby, The Constitutional Law of the United States, 
 Vol. I, pp. 222-224. ^ ■ A. Beard, Readings in American Government 
 and Politics, p. 148, gives examples of extradition proceedings.
 
 THE STATE GOVERNOR 147 
 
 more or less permanent impress upon the state administration, 
 in others their plans were reversed by subsequent legislatures. 
 Nevertheless they showed the possibility of a new position for 
 the state executive. 
 
 Originally the governors of the states ranked high in politi- -j The new 
 cal hierarchy.^ John Jay, for example, resigned the chief jus- governor" 
 ticeship of the Supreme Court of the United States to become 
 governor of New York. This high position, however, was not 
 due to the actual powers and prerogatives the governor pos- 
 sessed. It was more a tradition from colonial and revolutionary 
 days. During the nineteenth century, as has been shown, the 
 legislature steadily lost in power and influence, and to a certain 
 extent the governor gained. He certainly increased his legisla- 
 tive powers through the use of the veto and, to some slight 
 degree, his appointing power. At the time of the Civil War 
 the governor's position was important largely because of his 
 power as commander of the militia. This was true especially 
 in the border states, although certain ''war governors" of other 
 states made enviable reputations for themselves. By the close 
 of the nineteenth century the governor became potentially the 
 most powerful element in the political life of the state. His 
 power, however, rested not so much upon constitutional grants 
 as upon his political influence. In public estimation the gov- 
 ernor was regarded as the bulwark and protection of the people 
 against legislative inefficiency. Because of his legislative power 
 and, in particular, through the use of his veto power the 
 governor was held responsible for the passage of laws and for 
 economy in appropriations. In many instances the governors 
 have been successful. Such success has attended their efforts 
 that demands have been made that the administration of the 
 state should be centralized and integrated and that the governor 
 should be at its head. Some steps have been taken in this 
 direction, and in the reorganization of the administration of 
 several states the governor is the integrating force, 
 
 ij. M. Mathews, "The New Role of the Governor," in American 
 Political Science Review, Vol. VI, p. 216, and "The New Stateism," in 
 North American Review, Vol. CXCIII, pp. 808-815 ; J. A. Fairlie, "The 
 State Governor," in Michigan Law Review, Vol. X, pp. 370-383, 458-475.
 
 148 STATE AND MUNICIPAL GOVERNMENT 
 
 In spite of the governor's increased power the office has 
 not increased in popular estimation. Today governors regard 
 the office as a stepping-stone to something higher — to the 
 Senate or the president's cabinet, or even to the presidency 
 itself. In fact, the success of the governor in the administra- 
 tion of the affairs of his state has frequently made him a 
 presidential possibility or actuality. The names of Hayes, 
 Cleveland, Roosevelt, and Wilson are examples of successful 
 presidential aspirations as a reward of successful state adminis- 
 trations, while Cox, Johnson, Lowden, and many others may 
 be taken as examples of presidential possibilities. 

 
 CHAPTER VIII 
 
 STATE ADMINISTRATION 
 
 State administration is both decentralized and disintegrated.^ char- 
 It is decentralized in that the local areas — counties, cities, and ofsute**^^ 
 towns — are frequently charged with the enforcement of state adminis- 
 
 1 1 ■ , 7 . tration 
 
 laws and with the appomtment and supervision of the officials 
 who administer these laws. The most obvious example is 
 found in the police of the cities, the constables of the towns, 
 and the sheriffs of the counties. Administration is disinte- 
 grated in that, unlike the administration of the federal govern- 
 ment, there is no single chief executive. The governor and 
 numerous other executive officials are chosen directly by the 
 people and thus have equal authority and are not responsible 
 one to the other. Thus a governor cannot control an attorney- 
 general nor remove a state treasurer, although his administra- 
 tion is vitally affected by the actions of these officials. 
 
 State officials, as distinguished on the one hand from local composition 
 officials and on the other from state employees, may be divided exec'lftfvf ^ 
 into two classes.- The first class includes the governor, lieu- "lepartmeiit 
 tenant governor, secretary of state, attorney-general, state 
 treasurer, state auditor and, perhaps, one or two other officers. 
 These offices are established by the constitution, and their 
 incumbents, known as heads of departments, are usually 
 elected directly by the people. This group of officials is some- 
 times designated as the executive department of the govern- 
 ment. A second and by far larger class of state officials hold 
 offices which are sometimes established by the constitution, 
 
 ^The best account of state administration is by J. M. Mathews, Prin- 
 ciples of American State Administration, 1917. A. N. Holcombe, State 
 Government in the United States, chap, x, gives a very valuable and 
 suggestive discussion. 
 
 -See J. M. Mathews, Principles of American State Administration, 
 chap. vi. 
 
 149
 
 150 STATE AND MUNICIPAL GOVERNMENT 
 
 The execu- 
 tive de- 
 partments : 
 
 (i) The 
 
 lieutenant 
 
 governor 
 
 [Duties 
 of the 
 lieutenant 
 governor] 
 
 (2) The 
 secretary 
 of state 
 
 [Duties] 
 
 but more often by the legislature. These offices may be 
 single or plural in composition ; that is, the department may 
 be presided over by one commissioner or by a commission. 
 These officers are chosen in a great diversity of ways, for 
 varying terms, and are subject to different degrees of super- 
 vision and control. They perform the multitudinous functions 
 which the modern state undertakes. 
 
 In about thirty-five states there is a lieutenant governor/ 
 usually elected at the same time and in the same manner and 
 with the same qualifications as the governor. He may be 
 classed as an executive officer, generally with legislative func- 
 tions. As an executive officer his duties are largely potential 
 and ex officio. As a potential executive officer he succeeds to 
 the duties of the governor in case of death, resignation, or 
 removal ; as an ex-officio executive officer he is frequently found 
 on numerous commissions and boards. He presides over the 
 governor's executive council in the few states- — Massachu- 
 setts, for example — where it has survived. The legislative 
 function of the lieutenant governor is that of presiding over 
 the upper house or senate of the state legislature in thirty- 
 four states. Unlike the speaker of the lower house, he acts 
 rather as a moderator than as a political leader. 
 
 The secretary of state is an officer found in all the spates. 
 Practically everywhere he is chosen by direct popular vote.-'' 
 As a result of popular election he is independent of any supe- 
 rior administrative control, but his powers are minutely regu- 
 lated both by the constitution and by the statute. Indeed, the 
 legislature may prescribe for him duties entirely unconnected 
 with his office and pay him additional salary therefor. His 
 qualifications and term of office are generally the same as that 
 of the governor. 
 
 The functions of the secretary of state are numerous and 
 varied. He is usually keeper of the public records, authenticates 
 
 'See "The Lieutenant Governor," in Aincrican Political Science Re- 
 view, Vol. XI, pp. 88-92. 
 
 ^Massachusetts, New Hampshire, North Carolina. 
 
 3 In Delaware, Maryland, New Jersey, and Pennsylvania he is ap- 
 pointed by the governor with the consent of the senate.
 
 STATE ADMINISTRATION 151 
 
 public acts, and is required to seal all commissions. In many 
 states he has important duties in connection with elections: 
 the ballots are sometimes prepared under his direction and 
 certificates of election are issued by him. In some states 
 he issues certificates of incorporation to companies organized 
 under state laws, grants licenses, and may serve as ex-officio 
 member on numerous boards and commissions. His duties are 
 chiefly ministerial in character, although in some states he 
 has considerable discretionary power. In general his office 
 and functions are ill defined and might with propriety be 
 transferred to other departments and the office abolished. 
 
 One of the most important executive officers chosen by (3) The 
 direct popular vote^ is the attorney-general.- While in many gen°eraT' 
 states his term coincides with that of the governor there are 
 several exceptions. He is subject to impeachment in all states, 
 and in New York he may be removed by a two-thirds vote of 
 the senate on recommendation of the governor. 
 
 The attorney-general represents the state in all legal actions [Powers ana 
 
 , , . . . , r , 1 TT duties] 
 
 whether m its own or m the federal courts. He prosecutes [Forensic 
 offenders against state law and defends state officials in actions *"'^<=t'<"^^l 
 brought against them in their official capacity. He has some 
 power, though limited, to enter a nolle prosequi and thus 
 discontinue an action. 
 
 He may be called upon by the governor, the legislature, and [Advisory 
 
 -^ . , . , . . ^ ^■ c functions] 
 
 other officials of the state to render opinions upon legality 01 
 action or upon the constitutionality of measures. His opinions 
 are generally not mandatory nor do they furnish a justification 
 for any action taken in accordance with a mistaken opinion. 
 The attorney-general also consults with and advises the local 
 prosecuting attorneys. 
 
 The attorney-general may pass upon applications for sug- [Quasi- 
 
 . . , judicial 
 
 gestions to the court of certain, extraordinary writs that may functions] 
 
 iln New Jersey and Pennsylvania he is appointed by the governor 
 with the advice of the senate, in New Hampshire by the governor and 
 council, in Tennessee by the judges of the highest court, and in Maine 
 by a joint vote of the legislature. 
 
 2 See J. M. Mathews, Principles of American State Administration, 
 pp. 140-145; also Cyclopedia of American Government, Vol. I, p. 93.
 
 152 STATE AND MUNICIPAL GOVERNMENT 
 
 [Miscella- 
 neous func- 
 tions] 
 
 (4) As- 
 sistant 
 attorneys- 
 general and 
 council for 
 commissions 
 
 (5) County 
 or district 
 attorneys 
 
 ^6) Finan- 
 cial officers 
 
 be issued ; as, for example, the writ of quo warranto to test 
 the title of an officeholder. 
 
 The most important of the attorney-general's miscellaneous 
 duties is in connection with the board of pardons, where his 
 opinion is often conclusive. In addition he not infrequently 
 serves as an ex-officio member of one or more of the state 
 boards or commissions. 
 
 It is often the case that many of the numerous state commis- 
 sions are authorized to employ special counsel to advise them 
 in their proceedings. The utilization of such advice further 
 disintegrates the state administration and tends to cause fric- 
 tion between the attorney-general's office and the commission. 
 Even where such conflict does not arise the measure is one 
 of doubtful cooperation and harmony. Some states allow the 
 governor or attorney -general to appoint special deputy or assist- 
 ant attorneys-general to conduct special prosecutions. These 
 deputy assistant attorneys-general may be intrusted with the 
 prosecution of a question of interest to the state at large or 
 may be assigned to some particular locality in which the local 
 district or county attorney is not showing sufficient activity, 
 needs assistance, or is proved inefficient. 
 
 County or district attorneys are charged with the enforce- 
 ment of state laws. They are chosen directly by the people 
 within their districts and are not responsible to the attorney- 
 general's department. They are local officers and as such will 
 be discussed in later chapters.^ 
 
 Every state has a state treasurer.- In forty-four of the 
 states he is elected by direct popular vote and is thus by law 
 independent of the governor, in some states serving for a 
 term which does not coincide with that of the governor. Orig- 
 inally the treasurer was supposed to have physical possession 
 of the state funds and was personally responsible for them. 
 Now, however, the states have provided vaults for the security 
 
 iln Maine, Maryland, New Hampshire, and New Jersey they are 
 chosen by the legislature. 
 
 -See especially J. A. Fairlic, "Revenue and Financial Administra- 
 tion," in Report of the Efficiency and Economy Committee of Illinois, 
 pp. 146-149; J. M. Mathews, Principles of American State Administra- 
 tion, pp. 145-148.
 
 STATE ADMINISTRATION 153 
 
 of the funds or they allow the treasurer to deposit the state 
 funds in banks/ The duties of the treasurer are chiefly- 
 ministerial ; that is, he receives the funds raised by taxes and 
 other methods and disburses them in accordance with war- 
 rants drawn upon him by other officials. His chief discre- 
 tionary function lies in the determination of state depositories, 
 where this is allowed to him. Nowhere has the state treasurer 
 any of the powers of a finance minister abroad or any influence 
 over the revenue laws or appropriation bills. In addition to 
 these duties the state treasurer is frequently ex-officio member 
 of numerous boards. 
 
 In all states but three there is a separate officer and office (7) Auditor, 
 
 or comp- 
 
 for the purpose of auditing the receipts and payments to the trouer 
 state treasurer.- The auditor, or comptroller, is elected by 
 popular vote in all but two states.^ His term generally corre- 
 sponds to that of the state treasurer, although in four states he 
 serves for a longer term. He is thus independent of both the 
 governor and the state treasurer, but in no state does he have 
 a quasi-judicial tenure hke the auditing officials in Great 
 Britain. The chief function of the auditor is to act as a check 
 on the state treasurer ; that is, to issue warrants for the pay- 
 ments of money and to check the various branches of state 
 government and keep them within the limits of their appro- 
 priation. It is his duty to see that no money is paid out of the 
 state treasury except on appropriation of the legislature or by 
 law. In some states he receives and compiles the estimates for 
 appropriations and has certain duties in connection with the 
 assessment and collection of taxes. In New York, Ohio, and 
 several other states he has supervision of the accounts of the 
 county and municipal officials. In addition, he is frequently 
 an ex-officio member of various boards and may act in other 
 capacities than those directly connected with state finance.* 
 
 iln some instances state treasurers have deposited funds in banks of 
 doubtful character and the state has lost thereby. 
 
 2 In Wisconsin and Oregon the secretary of state acts as auditor. 
 In New Hampshire the governor appoints a committee of the executive 
 council and draws warrants on the treasury himself. 
 
 3 In New Jersey and Tennessee he is appointed by the legislature. 
 *See Chapter XII, State Finance.
 
 154 STATE AND MUNICIPAL GOVERNMENT 
 
 The relation In practically all the states the heads of departments are 
 of depart-*^^ elected. They are elected at the same time as the governor and 
 mentstothe ^jj^g may claim coordinate authority with him. The governor 
 
 governor ■^ ^ o 
 
 has practically no control over them, although some constitu- 
 tions and statutes provide that the governor may obtain from 
 them information in writing. In some states they are required 
 to make reports to the governor, either at stated intervals or 
 when called for. The governor, however, has practically no 
 power to follow up these reports and to compel action. As has 
 been seen, he has practically no power to remove, suspend, or 
 discipline the elective heads of the departments. Moreover, 
 he has no power to control the organization within a depart- 
 ment. This is regulated either by the head of the department 
 or, more usually, by statute. The governor maj^ issue com- 
 mands and directions, but the executive officers need not 
 obey them unless ordered to do so by the court by a writ 
 of mandamus. This is admittedly a cumbersome method. It 
 is, moreover, applicable only to the ministerial duties of the 
 departments and does not apply to those functions requiring 
 executive discretion. The relation between the governor and 
 the heads of departments is not an administrative relation 
 but a legal one.^ 
 state boards The Creation of state boards and commissions began at about 
 the middle of the nineteenth century.- Originally the adminis- 
 trative activities of the states were few. Little was under- 
 taken by the government in the way of administrative services, 
 and the greater part of that little was performed by the local 
 governmental bodies. The increase of population and the 
 changing economic conditions as well as a changing concep- 
 tion of the duties and functions of the state brought about an 
 increase in the administrative activities. This was partly due 
 to the feeling that business of certain types should be more 
 
 ^Sce J. M. Mathews, Principles of American State Administration, 
 
 pp. mS-isS- 
 
 -Ibid. chap, viii; C. A. Beard, "Commissions in American Government," 
 in Cyclopedia of American Government, Vol. I, p. 350; J. H. Finley and 
 J. F. Sanderson, American Executives and Executive Methods, chap, xiii; 
 F. H. White, "Growth and Future of State Boards and Commissions," 
 in Political Science Quarterly, Vol. XVIII, pp. 631-657. 
 
 and com 
 missions
 
 STATE ADMINISTRATION 155 
 
 strictly regulated. Beginning in finance, with regulation of 
 banks and other financial institutions, government regulation 
 has extended to insurance companies and to railroad, express, 
 and other public-service corporations. Moreover, countless laws 
 have been passed regulating the conditions in the conduct 
 of business, particularly of manufacture. Industrial relations, 
 conditions of employment, hours, wages, and labor disputes 
 have all been subjects of state legislation. But this alone 
 would accomplish nothing ; the laws must be enforced. Neither 
 the legislature nor any of the existing departments was 
 equipped to perform this duty. Hence new commissions and 
 new boards were established to keep pace with the constant 
 increase in legislation. 
 
 The second tendency brought about the increase of the state 
 administrative departments. This was a changed conception of 
 the function of government. Rightly or wrongly, the demand 
 has been made upon the state that greater and increasing care 
 should be given for the public safety, the health of the com- 
 munity, the poor, and the defective, as well as for the con- 
 servation of the public resources and the improvement of public 
 comfort and well-being. In order to accomplish these ends a 
 constantly increasing number of new boards and commissions 
 have been established. 
 
 It is almost impossible to make an adequate or satisfactory ciassiflca- 
 classification of the services of state boards and commissions, boards and 
 but the following classification will give some idea of the l^J^f]^' 
 varied duties undertaken : ^ ( i ) Industrial. This includes the basis of 
 
 services 
 
 boards of agriculture and horticulture and the inspectors of 
 mines and factories. (2) Scientific. Under this head are found 
 the boards of health, bureaus of labor statistics, boards of sur- 
 vey, and (in a few states) state chemists, or vaccine agents. 
 (3) Supervisory. The most important examples of such boards 
 are the boards of arbitration, railroad commissioners, commis- 
 sioners of insurance, banking, inland fisheries, and game. 
 
 iSee F. H. White, "The Growth and Future of State Boards and Com- 
 missions," in Political Science Quarterly, Vol. XVIII, pp. 631-657. This 
 is also reprinted in P. S. Reinsch, Readings on American State Govern- 
 ment, pp. 222-239.
 
 156 STATE AND MUNICIPAL GOVERN^MENT 
 
 Classifica- 
 tion accord- 
 ing to 
 powers: 
 
 (i) Legisla- 
 tive 
 
 (2) Judicial 
 
 (3) Admin- 
 istrative 
 
 Classifica- 
 tion ac- 
 cording to 
 the extent 
 of powers 
 
 (4) Examining. Many states require special qualifications for 
 certain professions and trades ; to apply these, examining 
 boards are created. Among the more common are those for 
 doctors, pharmacists, dentists, pilots, undertakers, horseshoers, 
 barbers, and plumbers, and this by no means exhausts the list. 
 
 (5) Educational. In this category are found the state boards 
 of education and, in some states, public-library commissions. 
 
 (6) Executive. The most important example is probably the 
 state-highway commission, which exists in many states. But 
 in some states we find park, water, and sewage commissions 
 and canal boards. The purpose of these commissions is gen- 
 erally to accomplish some great specific public work involving 
 engineering skill. (7) Corrective and philanthropic. Under 
 this head are classified the commissioners of charities and cor- 
 rections, superintendents of prisons, and hospital commissions. 
 It will be seen that this classification is not free from a certain 
 amount of overlapping. Indeed, the commissions themselves 
 occasionally overlap one another in authority. 
 
 The commissions may well be classified according to the 
 character of the powers they exercise, and thus would be 
 divided into administrative, legislative, and judicial commis- 
 sions. Those commissions which issue rules and regulations 
 are properly classified as legislative commissions. Thus, for 
 example, a state railroad commission, which determines the 
 rates to be charged by the railroads within the state, is really 
 exercising subsidiary legislative power. State boards and com- 
 missions which are appointed to conduct hearings and are 
 empowered to administer oaths and to summon witnesses are 
 exercising a quasi-judicial function. The great bulk of state 
 commissions and boards, however, are purely administrative in 
 character. They supervise, regulate, or actually conduct some 
 enterprise, and are not hampered by the rules which govern 
 judicial or legislative procedure. 
 
 Commissions may exercise their powers in various degrees.^ 
 Many commissions are purely advisory, having the power to 
 investigate and make recommendations but no power to enforce 
 or carry these into effect. Other commissions have mandatory 
 
 ^See J. M. Mathews, Principles of American State Administration, p. 160.
 
 STATE ADMINISTRATION 157 
 
 power; as, the boards of health, which, in some states, have the 
 power to make regulations, the violation of which constitutes 
 a penal offense.^ 
 
 The decisions of state boards and commissions are rarely Conclusive- 
 
 D6S5 of 
 
 final. Appeal must generally be provided, and the acts of the admimstra- 
 commissions are as a rule subject to review by some other ^rnatums' 
 body. In general, this duty is given to the courts. The courts, 
 however, are increasingly reluctant to interfere with the 
 determinations of commissions and usually decline to substi- 
 tute their judgment for that of a state board in the determi- 
 nation of questions of public policy.- The courts, moreover, 
 may be given jurisdiction merely over the method by which 
 the conclusion was reached and not over the subject matter. 
 Sometimes it is provided that no court appeal shall be allowed 
 from the finding of a board on the question of fact. By other 
 methods as well a general tendency is seen to extend the 
 functions and strengthen the conclusiveness of the determina- 
 tions of such boards. 
 
 The internal organization of state boards and departments internal 
 is practically always prescribed by the legislature. The board tion ofTtate 
 itself is created according to a certain form or plan which the ^e^art-^"* 
 legislature has in mind, and its organization and personnel, ments; 
 
 ■r , • 1 , , • • ; , legislative 
 
 if not determined by the constituent statute, is frequently control 
 affected by the annual appropriation bills. So far is this carried 
 that not only is the number of the employees regulated but also 
 the number of subdepartments of the board, special appropria- 
 tions are made for the salaries of the staff (whose duties are 
 frequently determined by law), and the exact sums are pre- 
 scribed for the purchase of certain articles. 
 
 In some states, however, a different tendency is recognizable. Modem 
 Sometimes the legislature appropriates lump sums to the de- mTnV^' 
 partments to be spent for salaries and expenses as the depart- 
 ment sees fit. This gives greater administrative efficiency, but 
 tends to conflict with the canons of strict budgetary regulation.^ 
 Where the appropriations are itemized, some of the states allow 
 
 ^Louisiana. 
 
 2 See J. M. Mathews, Principles of American State Administration, 
 p. 162, with cases. 3 See pages 232-235.
 
 158 STATE AND MUNICIPAL GOVERNMENT 
 
 Types of 
 departmen- 
 tal organi- 
 zation with 
 elective 
 heads : 
 
 (i) Single- 
 headed 
 department 
 
 (2) Multi- 
 ple-headed 
 department 
 elected by 
 the people 
 
 (3) Multi- 
 ple-headed 
 department 
 elected by 
 districts 
 
 the transfer of funds among the several departments of the 
 same commission. In a few states the commission is given 
 the authority to employ a certain staff, not exceeding a certain 
 number, but only very rarely is the department or board 
 allowed the power to create subdepartments and subdivisions 
 and to fix salaries.^ 
 
 The various types of departmental organization may be 
 classified first under two main heads : those in which the head 
 of the department is chosen by popular election and those in 
 which he is chosen by some other method.- There are three 
 types of departmental organization in which the chairman or 
 head is chosen by popular election : The first is the single- 
 headed department and is the most common. Most of the 
 executive departments which have been examined in this chap- 
 ter are of this type ; for example, the office of the secretary 
 of state, state treasurer, and so forth. The second is the de- 
 partment with several heads elected by the people of the state 
 at large. This is well illustrated by the boards of regents 
 of state universities. The third is the department of several 
 members elected by districts ; as, for example, the railroad 
 commissions and state boards of equalization. This variety 
 has not proved satisfactory, since too frequently the members 
 are dominated by the local interests of their respective dis- 
 tricts rather than by the more general interests of the state. 
 The second type is not very widely used, but where found has 
 generally given a measure of satisfaction. The first type is the 
 most common and, on the whole, the most satisfactory. It 
 should be remembered, however, that with the exception of the 
 attorney-general few of the important administrative depart- 
 ments are now filled by popular election. There are frequent 
 exceptions to this in many states, but the general tendency in 
 
 ^ This is done by the New Jersey statute creating a bureau of shell 
 fisheries. 
 
 2See A. N. Hoicombe, State Government in the United States, pp. 319- 
 325 ; J. M. Mathews, Principles of .\merican State Administration, pp. 164- 
 168; L. A. Blue, "Recent Tendencies in State .Administration," in Annals 
 of the American Academy of Political and Social Science, Vol. X\'III, 
 P- 434-
 
 STATE ADMINISTRATION 159 
 
 filling the more recently created administrative positions is 
 away from popular election. 
 
 Five different varieties of the second type of departmental Types of 
 organization may be distinguished : First, a department with a tai organi- 
 single head appointed by the governor. This is found in all the noneiectlvr 
 states and is becoming more frequent. The head of the depart- heads: 
 
 . . '^ (i) Single- 
 
 ment may be appointed either with or without the consent of headed 
 
 the senate or executive council. Most experts in administration appointed" ' 
 
 advocate the appointment of such a chairman without requiring ^^ *^^ 
 t^t^ T '^ governor 
 
 the consent of the senate. By this method the governor is 
 given a free hand and responsibility is concentrated upon him. 
 This type of departmental organization is most common in the 
 departments of banking and insurance. 
 
 The second variety of departmental organization, though (2) singie- 
 rarely used, is found in the departments of education in cer- department, 
 tain states; for example, in New York. There the legislature p°fij|g^ 
 chooses the state board of regents, which appoints the com- ^y the 
 
 governor 
 
 missioner of education, to serve during the pleasure of the 
 regent. Since in New York a regent is annually chosen for 
 twelve years, the board (and consequently the commissioner) 
 is pretty effectively taken out of politics. Generally, however, 
 where this type of departmental organization is adopted, the 
 governor rather than the legislature appoints the board, and it 
 selects the commissioner. 
 
 The third form of organization was first adopted for educa- (3) Muiti- 
 tional, agricultural, charitable, and public-health departments, commissions 
 In it there is an unpaid board, which, unlike the board in the J^ent"^"^ 
 second type just discussed, takes an actual part and often an 
 active one in administration. The board, however, employs an 
 expert, usually highly paid, to carry out its policies. The extent 
 to which the board controls the expert or the expert influences 
 the board varies in different states and depends upon the 
 character of the men concerned. 
 
 The fourth is the most common kind of organization for (4) Muiti- 
 boards or commissions. In it the members are adequately com- commissions 
 pensated ; they are expected to devote their entire time to the ^o"^ing 
 duties of the board and to take an active personal part in
 
 i6o STATE AND MUNICIPAL GOVERNMENT 
 
 (5) Single- 
 headed 
 department 
 dependent 
 upon an 
 advisory 
 council 
 
 Relative 
 merits of 
 a commis- 
 sioner or 
 a board in 
 state ad- 
 ministra- 
 tion 
 
 carrying out its functions rather than merely to supervise them. 
 The secretary is a subordinate and, unlike the agent in the third 
 type, his duties are confined to executing the directions of the 
 board. Boards of this type exercise not only administrative but 
 quasi-legislative power. Some of the most obvious examples 
 are the railroad commissions and public-service commissions, 
 together with the industrial commissions which have recently 
 been organized in various states. 
 
 In the fifth type the head of the department is appointed by 
 the governor either with or without the consent of some con- 
 firming body, but his functions and powers are conditioned 
 upon the advice of an advisory council. The first modern in- 
 stance of this was found in INIassachusetts, in the department 
 of boiler inspection organized in 1907, and later in the Penn- 
 sylvania department of labor as organized in 19 13 and in the 
 organization of the departments of health of New York and 
 Massachusetts in 1913 and 1914. This kind of organization has 
 much to commend it in cases where the functions involve 
 quasi-legislative powers. The councils hear the evidence and 
 make certain regulations or rules; there their duty ends. The 
 commissioner, who is an expert administrator, then carries 
 into effect or applies these regulations to specific cases as 
 they may arrive. 
 
 Most experts favor a commissioner rather than a board for 
 state administration. The disadvantages of the board may 
 be summed up as follows : ^ ( i ) Frequently boards are com- 
 posed of ex-officio members who give only a part of their 
 time and attention to the work. (2) In case the board is 
 composed of members chosen from different sections of the 
 state, the difficulty of getting the entire board together makes 
 frequent meetings impossible. (3) Boards are slow to reach 
 decisions. (4) If adequate salaries are paid, the expense is 
 greater than that of a single commissioner. If the boards are 
 unpaid or underpaid, the members will not give the neces- 
 sary attention. (5) A board is not as responsible as a single 
 
 'J. M. Mathews, Principles of American Slate Administration, p. 165; 
 L. A. Hlue, "Recent Tendencies in State Administration," in Annals of 
 the American Academy oj Political and Social Science, Vol. XVIII, p. 434.
 
 STATE ADMINISTRATION i6i 
 
 commissioner, since the responsibility is diffused. However, 
 because of this very divided responsibihty they are sometimes 
 able to carry through a necessary but unpopular policy. The 
 partial renewal of boards may guarantee the continuity of a 
 policy, which in some instances has an advantage. This, how- 
 ever, is sometimes of dubious value. It may be advisable to 
 bring about a radical change of policy. With a board whose 
 membership can only be changed gradually this is more dif- 
 ficult than in the case of a single commissioner. 
 
 Where the work of the board is of a quasi-legislative char- Merits of 
 acter, like the making of rates, or of rules and regulations sionerT/' 
 to be applied in industry, a board is better than a commis- ^oard^udged 
 sion. Likewise, in questions of policy, matters of taste, or character of 
 
 >^ -^ ' the work 
 
 questions which may involve racial or religious feeling a board 
 has certain advantages over a single commissioner. On the 
 other hand, where the duties of the board are chiefly execu- 
 tive or administrative and require promptness of decision a 
 commissioner is much to be preferred. It should be remem- 
 bered, however, that even where the board type of organiza- 
 tion is established, its actual functions are often exercised 
 by the secretary or some member of the board or expert 
 employed by it. 
 
 The relation of state boards and commissions to the legisla- Relation of 
 ture varies. Over these commissions and boards established commis- 
 by the constitution the legislature has little control. The ^ther de- 
 appointment or election of the members may be vested in the partments 
 
 . . . of the gov- 
 
 legislature or in one house, but the functions of the commission emment: 
 are almost beyond the power of the legislature to define, al- legislature 
 though it may lay upon the commission duties of a sort similar 
 to those originally prescribed. The control which the legisla- 
 ture exercises in such cases is chiefly over the internal organi- 
 zation of the commission, which may be determined entirely by 
 the legislature. Over those commissions established by the 
 legislature greater power is exercised. The legislature has a 
 free hand in determining the character of the commission, its 
 functions, and its organizations. It may amend or abolish 
 the commission by legislative act. In neither case, however, 
 can the legislature exercise administrative control over the
 
 1 62 STATE AND IMUNICIPAL GOVERXMEXT 
 
 (a) The 
 governor 
 
 (3) The 
 courts 
 
 policy or specific actions of the commission. Its relation to 
 the commission is purely legislative. 
 
 The relation of the governor to commissions is largely legal. 
 There are so many restrictions upon the governor's power of 
 appointment, direction, and removal that the commissions may 
 function almost as an independent fourth department. Espe- 
 cially is this so where discretionary power may be exercised. 
 This is on^ of the greatest weaknesses of the administrative 
 system of the state — it prevents coordination and unified 
 direction. Because of the principle of partial renewal for com- 
 missions, and long terms for their members, it is often prac- 
 tically impossible for a governor to initiate and carry through 
 an administrative policy. These evils have long been recog- 
 nized, and important changes have taken place. Even before 
 any structural reform or increase of executive power took place 
 by law, the position of the governor as the political leader often 
 gave him more power of direction than he theoretically pos- 
 sessed. His power of appointment and removal has been greatly 
 increased in many states, and as a result his power of direction 
 has been consequently enhanced. The general tendency of 
 the movement to employ experts in administration is still 
 further to increase this power and to provide for a uniform 
 administrative system under the direction of the governor. 
 
 The courts exercise a very constant control over administra- 
 tive boards and commissions. In the first place the courts 
 enforce the limitations of the national and state constitutions 
 upon the operations of the commission. Thus the courts may 
 determine whether property is subject to public regulation, 
 and they have consistently held to the rule that all property 
 affected by public interest was subject to such regulation. The 
 courts have allowed commissions to regulate those classes of 
 property and those interests which the legislature might regu- 
 late. Moreover, they test the work of the commissions by the 
 clauses guaranteeing due process, just compensations, and equal 
 protection of the laws, and frequently check the activities of 
 certain enthusiastic boards. The activities of the courts, how- 
 ever, may be restricted in their effect,^ and the commission may 
 
 iSee pages 302-304.
 
 STATE ADMINISTRATION 163 
 
 be vested with the power to make final determination of ques- 
 tions of fact. Furthermore, the courts are slow to substitute 
 their point of view for that of the commission. This is true 
 where the commission is charged with the performance of a 
 discretionary act. In other instances appeals may be prose- 
 cuted before the courts and the work of the commission 
 reviewed or accelerated. It must be proved, however, that the 
 petitioner has a direct personal interest in the decision of the 
 commission apart from that as a member of the community. 
 
 The evils of the conditions described in the previous pages Movements 
 have long been recognized. IMovements to consolidate some of ize'^the^tate 
 the numerous boards and commissions began in [Massachusetts tf^^gygtem 
 and New York in 1902 and 1901, respectively, and have spread 
 to other states. During the first decade of the twentieth 
 century, however, not much was accomplished. Although there 
 were some consolidations, new creations were more numerous, 
 and while the evils and inefficiencies of the system were recog- 
 nized and attacked, conditions grew worse rather than better. 
 In many states special commissions were appointed to investi- 
 gate the actual conditions of state administration. These Efficiency 
 bodies, usually known as efficiency and economy cornmissions, o^y cojn'. 
 revealed a condition which although suspected and uncon- 
 sciously felt was actually known only to the active politicians. 
 The publication of their reports strengthened the hands of the 
 reformers, and demands became insistent that some consolida- 
 tion and change take place. 
 
 In 191 5 New York held a constitutional convention of which 
 the Honorable Elihu Root was chairman.^ The most numer- 
 ous group in this convention, known as the "federal crowd," 
 
 iThe Bureau of Municipal Research, New York City, prepared and 
 published several very valuable treatises on state government : (i ) " Gov- 
 ernment of the State of New York: a Description of its Organizations 
 and Functions" (January, 1915); (2) "The Constitution and Govern- 
 ment of the State of New York: an Appraisal" (May, 1015) ; (3) "Bud- 
 get Systems" (June, 1915); (4) "State Administration" (July, 1915)- 
 The Legislative Drafting and Research Fund of Columbia University 
 prepared a valuable book, "Index Digest of State Constitutions," which 
 although now out of date in many particulars still is of great con- 
 venience. The Proceedings of the Convention were published in three 
 volumes and contain much of value and importance. 
 
 missions
 
 1 64 STATE AND MUNICIPAL GOVERNMENT 
 
 The New 
 York Con- 
 stitutional 
 Convention 
 of 1915 
 
 Other 
 
 movements 
 toward 
 state reor- 
 ganization : 
 the Illinois 
 Administra- 
 tive Code 
 
 proposed and succeeded in getting the convention to recommend 
 certain conservative principles of reform. As regards state 
 administration, the convention proposed amendments provid- 
 ing for (i) the abolition of popular elections in the case of 
 minor administrative officers; (2) the abolition of the power 
 of the senate to confirm or refuse to confirm executive nomi- 
 nations; (3) the reorganization of the one hundred and fifty 
 or more separate administrative agencies in the seventeen 
 departments; (4) the extension of the civil-service system. 
 This reorganization and consolidation, though drastic, was not 
 radical. It involved the principles which had been advocated 
 not merely by reformers but by experts in state administration. 
 The amendments proposed by the convention were over- 
 whelmingly defeated by a popular vote of more than two to 
 one. Nevertheless the work of the convention was not without 
 value, and its influence was far-reaching. 
 
 In 191 7, largely due to the energy of Governor Lowden, 
 Illinois adopted an administrative code which effected a thor- 
 oughgoing reorganization.^ Nine main departments were estab- 
 lished: finance, agriculture, labor, mines and minerals, public 
 works and buildings, public welfare, public health, trade and 
 commerce, registration and education. These absorbed the 
 functions of forty executive officers and fifty boards and com- 
 missions, as well as a large number of subordinate officials. 
 Each department has at its head a director, and there are 
 about forty other officials in charge of various bureaus. All 
 these officials are appointed by the governor, with the consent 
 of the senate, for terms of four years. The principal results to 
 be expected are more definite responsibility, increased efficiency, 
 and active coordination. The code fails to cover the whole field 
 of state administration : none of the elected officials are in- 
 cluded ; certain state authorities, like the national guard, civil- 
 service commission, legislative reference bureau, and so forth 
 are outside of the new organization ; several boards, moreover, 
 have only a nominal connection with the department with 
 which they are grouped. 
 
 'Laws of 1917, chap. 2. See also J. A. Fairlic, in American Political 
 Science Review, Vol. XI, pp. 310-315.
 
 STATE ADMINISTRATION 165 
 
 During the year 1917^ consolidation of the directors of the other con- 
 state hospitals was made in North Carolina,- and in Kansas' ^°^"^^^'°°^ 
 a board of administration was created to control all the educa- 
 tional, benevolent, and penal institutions of the state. Both 
 Kansas and North Carolina established state accounting 
 agencies. In Vermont^ a state board of control was estab- 
 lished, composed of the governor and three other state officers, 
 to have general supervision over all state departments. In 
 19 19 eight governors recommended the consolidation of related 
 state offices, and considerable progress was made.^ In Cali- 
 fornia and Oregon, however, the reports of the efficiency and 
 economy commission and consolidation commission brought 
 little result. In Texas" a board of control composed of three 
 citizens, appointed by the governor with the advice of the 
 senate, was established. This board abolished five state 
 agencies and boards of managers in about fifteen institutions. 
 It is organized into the divisions of printing, purchasing, audit- 
 ing, design, construction, maintenance and appropriations, and 
 eleemosynary institutions, and prepares the budget for all state 
 offices and departments. 
 
 As a result of the constitutional convention held in 19 18 Massachu- 
 the legislature passed a law reorganizing the administrative ^^ 
 system of Massachusetts." In general it followed the New 
 York law, but provided for twenty separate departments. To 
 this extent it is not so effective as the administrative code of 
 Illinois, but seventy-seven independent administrative units 
 were abolished by it or placed under one of the twenty depart- 
 ments. It does not touch the four elective officers — secretary 
 of the commonwealth, treasurer, auditor, and attorney-general ; 
 but the heads of all other departments are appointed by the 
 governor with the consent of the council, generally for a term 
 of three years. 
 
 ^See American Year Book for 1917, pp. 176-177. 
 
 -Laws of 19 1 7, chap. 150. 
 
 ^Laws of IQ17, chap. 297. 
 
 '*Laws of 1917, chap. 32. 
 
 ^See American Year Book for 1919, pp. 224-227. 
 
 ^Laws of 19 19, chap. 167. 
 
 ■^Acts of 1919, chap. 350.
 
 1 66 STATE AND MUNICIPAL GOVERNMENT 
 
 Idaho 
 
 Consolida- 
 tions in 
 igai 
 
 Ohio 
 
 Missouri 
 
 New York 
 
 Probably the most far-reaching reorganization which has yet 
 taken place was accomplished in Idaho in 1919.^ By this the 
 agencies of administration are grouped into nine different de- 
 partments. The head of each department is appointed by the 
 governor and is removable by him at his discretion, and the 
 governor is also given authority to devise plans for cooperation 
 and coordination and to eliminate duplication. The head of 
 each department is empowered to prescribe regulations for the 
 conduct of his department. Of especial interest is the depart- 
 ment of law enforcement, which is given the power "to enforce 
 all the penal and regulatory laws of the state in the same man- 
 ner and with like authority as the sheriffs of counties." It also 
 has numerous special powers in the way of supervision. In 
 19 19 Nebraska adopted the civil-administration code, by which 
 six administrative departments were created.- Consolidations 
 also took place in Indiana. 
 
 During the year 192 1 several states took steps to reorganize 
 their administrative departments. The most thoroughgoing re- 
 organization was in Ohio, where an administrative code was 
 adopted April 26.' This code does not touch the offices or 
 functions of the lieutenant governor, the secretary of state, the 
 auditor, the treasurer, or the attorney-general, but groups the 
 other administrative activities into seven departments : finance, 
 commerce, highways and public works, agriculture, health, in- 
 dustrial relations, and education. With three exceptions these 
 departments are presided over by commissioners, appointed by 
 the governor during his pleasure, who have the power to appoint 
 the heads of the divisions of their departments. In Missouri 
 no general administrative code was adopted, but seven measures 
 were passed, making various consolidations. In New York a 
 bill to reorganize completely the state administration was de- 
 feated, but many important consolidations took place, among 
 which may be mentioned the uniting of all tax-collection agencies 
 
 1 Sec American Year Book for iqig, pp. 22.!;-226, and American 
 Political Science Review, Vol. XIII, p. 634. Sec also Howard T. Lewis, 
 in National Municipal Review, Vol. VIII, pp. 216-218. 
 
 -See American Political Science Reviczv, Vol. XIII, pp. 635-640. 
 
 ■■'Ibifl. Vol. XV, pp. 380-3S3.
 
 STATE ADMINISTRATION 167 
 
 into a state tax commission, the abolition of the industrial com- 
 mission, and the appointment of a single commissioner. The 
 two public-service commissions of the state were abolished, and 
 a special transit commission was created for New York City, 
 and a public-utilities commission with wide power. In all it is 
 estimated that over two thousand sinecures were abolished.^ 
 
 ^See American Political Science Review, Vol. XV, p. 385.
 
 CHAPTER IX 
 
 FUNCTIONS OF STATE ADMINISTRATION 
 
 The Enforcement of State Law^ 
 
 Difficulties The lax enforcement of law within the United States is not 
 enforcement ^ue to want of Statutes. Indeed, it has been said that in the 
 United States there are "more laws and less law than in any- 
 other country." When it is remembered that each session of 
 every state legislature produces a substantial volume of statutes 
 and that local units of government have the authority and make 
 numerous by-laws, it can readily be seen that the amount of 
 statute law in the United States is enormous. INIany of these 
 laws, however, are badly drawn through haste, carelessness, 
 or intention. Not infrequently ambiguities are inserted to 
 serve some sinister end. This is a species of legislative black- 
 mail. Most of the laws, not emergency measures, are supposed 
 to go into effect immediately upon their passage. Thus many 
 laws are violated through ignorance. The enforcing officers are 
 not always in sympathy with the laws which they are required 
 to enforce. Moreover, since the enforcement of the law is quite 
 generally confided to the local authorities, laws may be inter- 
 preted and enforced in different ways in different communities. 
 As will be explained in a later chapter, because of the composi- 
 tion of the legislature in some states the rural members may 
 pass laws affecting the urban populations in a way not upheld 
 by public opinion. When juries fail to convict and judges 
 give light or suspended sentences, the task of the enforcing 
 authorities is made increasingly difficult, 
 instru- State laws as well as local by-laws are generally enforced 
 
 Scement ^Y the policc in the cities, by the constables in the villages, 
 of state law ^^id by the sheriffs in the counties. These officers are all chosen 
 by local agencies and thus are not responsible to the state 
 
 1 J. M. Mathews, Principles of American State Administration, chap. xv. 
 
 i6S
 
 FUNCTIONS OF STATE ADMINISTRATION 169 
 
 authorities, although they are charged with the enforcement of independ- 
 
 _,, ... . ... ence of 
 
 State Statutes. The state administrative authorities cannot locai 
 appoint them, remove them, or discipline them. Only in a few authorities 
 states, and for especial purposes, have the state administrative 
 authorities any control over them. The state legislature, it is 
 true, may by statute attempt to control the local police, and 
 by law may vest the appointment of the police commissioner of 
 a city in state authorities. This happens in Boston, Baltimore, 
 and St. Louis, but it is the exceptional procedure. 
 
 In almost every state the governor is charged with seeing The 
 that the laws are faithfully enforced. He is thus held respon- ^°^ " 
 sible for law enforcement, although actually he has little 
 power: in a few states he may remove district attorneys or 
 police commissioners ; more rarely he can remove a sheriff .'^ 
 But even without legal power to control the local authorities 
 he has at his command the power of publicity. In New Jersey, 
 for example, the governor or the attorney-general may notify 
 the mayor or chief of police of any city that the state criminal 
 law is being violated in certain places; whereupon it shall be 
 the duty of those officials to prosecute the guilty persons. 
 Failure to take such action within ten days is declared a 
 misdemeanor." 
 
 In some states' the governor is given express power to Agents 
 appoint agents to enforce specified laws. This was especially by the 
 true with regard to the laws governing the sale of liquor. In g°^^'^°°'^ 
 Oregon* the governor may lay the facts before the circuit 
 court, and if the court finds that the laws are not being faith- 
 fully enforced, the government may appoint special officers for 
 a limited period to exercise the powers of sheriffs, district 
 attorneys, or constables, who act exclusively under his direc- 
 tion. Idaho in 19 19 provided for a department of law enforce- 
 ment, to enforce the penal and regulatory laws of the state as 
 well as to supervise the enforcement of certain other laws.^ 
 
 iNew York, Wisconsin. J. M. Mathews, Principles of American State 
 Administration, p. 100. 
 
 2New Jersey Public Laws, iqoi, p. 366; quoted by J. M. Mathews, 
 Principles of American State Administration, p. 435. 
 
 3 Maine, Oklahoma, South Carolina. 
 
 ■^Session Laws of 1913, chap. 180. ^See page 166.
 
 lyo STATE AND MUNICIPAL GOVERNMENT 
 
 The militia 
 
 Power of 
 the gov- 
 ernor over 
 the militia 
 
 Dse of the 
 militia in 
 strikes 
 
 The ordinary and the ultimate source of law enforcement 
 in the state is the militia. The state militia is recruited by 
 voluntary enlistments, and since 1916-1917 has been partially 
 federalized. Even before that date it was subject to federal 
 inspection, but now it may be directly mustered into the 
 national military establishment. The members of the state 
 militia meet at stated intervals in the state armories and are 
 drilled and trained. Annual encampments are held, and occa- 
 sionally large bodies of the militia are mobilized at a single 
 place to give the officers experience in handling considerable 
 numbers of troops. The purpose of the militia is to render 
 unnecessary a large standing army, or any standing army under 
 state control, since the latter is prohibited by the federal consti- 
 tution. The militia is thus an emergency military organization 
 and not a police force. 
 
 In most states the power to summon the militia is in the 
 hands of the governor, although the objects for which he may 
 call it out are generally enumerated, as in the case of invasion, 
 riot, or rebellion, or to enforce the laws. In practically all the 
 states the summoning of the militia is entirely at the discretion 
 of the governor, and he is the sole judge of the necessity and of 
 the use to which it should be put. From the character of the 
 organization it can readily be seen that it is not a proper police 
 force or one suitable to perform customary police duty in con- 
 nection with the enforcement of ordinary laws and regulations ; 
 it is rather designed as an instrument to preserve the peace 
 in time of riot and rebellion, and as such it has most generally 
 been used. 
 
 In recent years the most serious violations of the public 
 peace have come from strikes. This has led to the employment 
 of the state militia in labor disputes; particularly should be 
 mentioned the Colorado strike of 1904, the copper strike in the 
 mines in Michigan during 1913, and the Montana strike of 
 1914. In all these instances the governor and the officers, 
 acting under the guise of preserving peace and law, actually 
 exercised military power without judicial process. In the Colo- 
 rado case this was upheld in an opinion by Justice Holmes,
 
 FUNCTIONS OF STATE ADMINISTRATION 171 
 
 which has already been quoted.' "I'ubHc danger warrants the 
 substitution of executive process for judicial process." The 
 use of the militia in strikes is subject to much criticism. A state 
 militia may be largely recruited from the industrial class, 
 whose sympathies are with the strikers ; and although no cases 
 have arisen where the militia has refused to obey the orders 
 of its superior officers, yet it is quite generally felt that it is 
 contrary to good policy to utilize such an organization for this 
 purpose. One of the recent examples of the use of a state 
 militia was the summoning of the Massachusetts state guard to 
 preserve order in Boston when the usual law-enforcing agents— 
 the police — went on a strike. 
 
 The character of the militia as an organization and of its state police 
 members has led some states to organize other law-enforcing 
 bodies. These are variously named. One of the oldest and 
 by far the most famous is the Pennsylvania Constabulary. 
 This is a disciplined, carefully organized, well-trained body of 
 more than two hundred men and officers. Although it has a 
 military organization and appearance, the Pennsylvania Con- 
 stabulary is an excellent police force. It has been used with 
 great advantage in strikes, but it also serves as a continuous 
 rural police, preserving order in those districts where the local 
 authorities are generally few and often inefficient. Its members 
 are well grounded in criminal law, and about 90 per cent of 
 their arrests lead to conviction. It assists in extinguishing 
 forest fires, enforcing game laws, and assisting the health of- 
 ficers. It has afforded protection in cases of fire and flood and 
 has proved one of the most helpful agents for the enforcement 
 of law in the United States. 
 
 Other state police forces which have been established are other 
 the State Police of Massachusetts and of Connecticut ; the of state 
 Texas Rangers ; the New York State Constabulary. p°"" ^°''"" 
 
 Many of the boards and commissions of the administrative Agents of 
 
 , , . . boards and 
 
 department are given power to make regulations, sometimes commis- 
 with the force of law and with penalties. To enforce these ®'°°® 
 regulations and to carry out the functions of the boards, 
 
 ^See page 145.
 
 172 STATE AND MUNICIPAL GOVERNMENT 
 
 special agents are often appointed. These agents should be 
 classified as law-enforcing agents. In those states where the 
 administration has not been consolidated and the directive 
 power not given to the governor, such agents only add to the 
 decentralization of the law-enforcing department. Where the 
 administration has been centralized, however, less objection 
 can be found to them. Their work varies, both in character 
 and degree. In some states they are merely supervising agents, 
 in others they have power to arrest and prosecute. In several 
 states certain commissions can actually apply penalties, but 
 generally the decree or sentence of the commission or its agent 
 is reviewable by the courts. 
 
 The admin- 
 istration of 
 education 
 
 The school 
 district 
 
 The county 
 unit 
 
 The county 
 superin- 
 tendent 
 
 Education 
 
 One of the very important fields of state administration is 
 that of education. Education differs from most other public 
 functions in that it is both private and public. Like so many 
 other functions of state administration it is shared by both 
 state and local authorities. The original unit of education was 
 the school district. This originated in colonial Massachusetts 
 and spread westward until it is found in some form or another 
 in about thirty different states. The school district is ordinarily 
 a body corporate, choosing a district board (usually of three) 
 to whom are intrusted the provision for the school, the appoint- 
 ment of the teachers, the determination of the curriculum, in 
 fact all educational affairs. This is the extreme democratic form 
 and, while suited to primitive conditions, is costly and inefficient. 
 
 The more common units are the townships and counties. 
 About a dozen states, most of them in the South, have adopted 
 the county as the unit for school administration, and in ap- 
 proximately forty states, including nearly all of those outside 
 of New England, the county is the unit of supervision. In 
 New England, however, the township or the city serves as the 
 unit, and there is less supervision by higher authorities than 
 in other states. 
 
 The county superintendent of schools is found in about forty 
 states. In the majority of these he is an elective officer chosen 
 along with the sheriff and other county officers, although
 
 FUNCTIONS OF STATE ADMINISTRATION 173 
 
 professional qualifications are required in many states.' This 
 is unfortunate, since the county superintendent should be an 
 educational expert, and popular election is not the best means 
 of obtaining a man of such qualifications. In a few states, 
 however, he is appointed by some county authorities. The 
 duties of the county superintendent are first, educational, such 
 as visiting the schools, advising, directing, and examining the 
 teachers, deciding questions of controversy, and enforcing the 
 compulsory-attendance laws; second, noneducational, such as 
 the apportionment of state and county funds, giving notice of 
 school elections, and so forth. 
 
 In spite of the fact that the control of the schools is gen- state 
 erally in some local body, practically all the states exercise ^"p^"'^^'"'^ 
 supervisory powers. Indeed, education is so important in a 
 democratically governed state that it is of vital interest to the 
 state that this function should be properly performed. In a 
 few states direct control is the method employed. Generally, 
 however, it is found only in higher or professional education, 
 while the lower or common-school education is under the control 
 of the local authorities. Even here, however, the state finds 
 it necessary to exercise supervisory power. 
 
 A state board of education or some such body is found in The 
 about forty states. This body is variously constituted, either admfn/st°ra- 
 of ex-officio members — which gives the most unsatisfactory ^115 0^'"'"' 
 results, since the members are generally holding purely political the state 
 offices — or of appointed members. The appointive boards 
 generally give more satisfaction. In four states- they are ap- 
 pointed by the legislature ; elsewhere, by the governor. In 
 ^Michigan, however, the board is chosen by popular election 
 and has little authority. 
 
 State boards of education as a general rule have supervision Powers and 
 
 duties of 
 
 only over the common-school system proper. In some states, sute boards 
 moreover, they have supervision only over the special or higher 
 institutions, such as normal schools and agricultural colleges. 
 In a few states^ they supervise both classes of education. The 
 
 1 Indiana, Iowa, Kansas, Michigan, Nebraska, and Wisconsin. 
 
 2 Connecticut, New York, Rhode Island, and Virginia. 
 3New York, Oklahoma, and Vermont.
 
 174 STATE AND MUNICIPAL GOVERNMENT 
 
 New York board, known as the Regents of the University of 
 the State of New York, the oldest in the country, was created 
 in 1784. It is composed of twelve members, one of whom is 
 elected annually by the legislature for a twelve-year term. 
 This board has wide powers and great influence. In general, 
 the department of education exercises three distinct functions: 
 financial (that is, the appropriation and spending of funds), 
 educational (that is, the determination of the curriculum and 
 the inspection of the schools), and professional (that is, the 
 examining and certification of teachers). 
 The state The actual educational work of the board is generally con- 
 
 supenn en ^j^^^g^ ^y ^^ expert. Variously named as the state superin- 
 education tendent of education, the commissioner of education, or, in 
 Connecticut, the secretary of the state board of education. 
 Such an officer is found in all the states. In about twenty he 
 is chosen by popular election, which is the poorest method of 
 selection, since it practically always necessitates choosing a 
 resident of the state not so much by the wish of the people 
 as by the operation of political parties. In about ten states 
 he is appointed by the governor ; in five, by the board of educa- 
 tion. The superintendent of education should certainly be 
 removed from politics and political influence ; his qualifications 
 should be high and carefully scrutinized by the appointing 
 authority ; and, while subject to removal, he should be given 
 a sufficiently long term to enable him to put his policies into 
 effect. On the whole, election by a board is perhaps the best 
 method of choice. 
 Functions of The functions of the superintendent of education may be 
 superin-^ classified as follows: (i) Supervisory. In this class would be 
 (n'suMr- P'J^ ^'^ power to visit the schools, to require reports from the 
 visory county Superintendents and other authorities, and the making 
 
 of rules and regulations to carry into effect the provisions of 
 fj) Advisory the school law. (2) Advisory and judicial. In this category 
 ^" ' ' are found his power to advise the local school authorities as to 
 the interpretation of the school law and in some instances the 
 ^3) Admin- powcr to decide appeals. (3) .Administrative and financial. 
 TnrfinaV These powers would include the examining of teachers and 
 '^'*' their certification, I lie recommendation of textbooks, and the
 
 FUNCTIONS OF STATE ADMINISTRATION 175 
 
 distribution of state funds among the various localities. The 
 actual influence of a capable state superintendent is far greater 
 than a mere enumeration of his legal powers would imply. 
 His position and influence, however, vary in different states, 
 so that it is almost impossible to generalize. 
 
 One method which many states have adopted to control and Financial 
 influence education has been to grant state aid to different the state 
 localities.^ The money raised by taxation is apportioned to to localities 
 the different localities according to various methods. The grant 
 of state aid is frequently conditioned upon the maintenance of 
 a certain standard. To insure that this is maintained, state 
 inspection and supervision naturally follow. 
 
 In colonial times Massachusetts and Connecticut adopted compulsory 
 the principle of compulsory education. The first modern law 
 was enacted by Massachusetts in 1852, and since then the 
 principle has been adopted in all the states. There is the 
 greatest possible variation as to the ages during which this 
 compulsory attendance is required and the number of weeks 
 of school attendance which is necessary. The weakest point 
 of the system lies in its inadequate enforcement. In one state 
 — Connecticut — the agents of the board of education enforce 
 the law ; in the other states it is done by the local authorities, 
 truant officers, sheriffs, constables, or the ordinary police force. 
 Since children are allowed to attend private schools there is 
 grave danger that the spirit if not the letter of the compulsory- 
 attendance laws may be violated. In Connecticut all private 
 schools are required to keep a register which shall be open to 
 the agents of the board of education. 
 
 In about a third of the states textbooks must be supplied Free 
 without charge, and in other states this plan is permitted. In 
 New England the local authorities determine the character and 
 nature of the textbooks and make contracts with the pub- 
 lishers. In the other states this is generally done by the state 
 board. Two states, however, — California and Kansas, — have 
 undertaken the publication of their textbooks. 
 
 Practically all states require that teachers should obtain a 
 license granted as the result of an examination before teaching. 
 
 iFor example, see Massachusetts, General Acts, 1919, chap. 363.
 
 176 STATE AND MUNICIPAL GOVERNMENT 
 
 The train- Originally this examination as conducted in many states by 
 supervision the local authorities was a mere farce. The tendency now 
 of teachers jg ^^ ^,gg^ jj^ j.j^g central State board the duty of examining 
 
 and certifying teachers. Closely connected with this is the 
 Normal establishment of schools for training teachers. Some states 
 maintain but one normal school, others have several. In some 
 states the different normal schools are under separate and 
 almost independent boards of trustees. The more modern 
 tendency, however, is to put the control in the hands of the 
 state board. 
 state Many states maintain institutions of higher learning. These 
 
 may be professional or vocational schools, such as the agricul- 
 tural colleges, or all branches of higher education may be 
 combined in a state university. The state universities are 
 usually governed by a board of trustees or regents. In the 
 majority of cases these are appointed by the governor, although 
 in Illinois and iSIichigan they are chosen by popular election. 
 The Middle and Western states have been most generous in 
 their appropriations for this class of education, and the state 
 universities have exercised a powerful influence, 
 state Most states maintain state libraries. These, however, are 
 
 generally for the use of the state legislature and are not well 
 correlated with the local libraries. New York, however, is an 
 exception ; and the New York State Library, which is a divi- 
 sion of the Department of Education, not only has charge of 
 all books, pamphlets, records, and archives but undertakes 
 legislative reference research^ and library-extension work, and 
 maintains a library school. 
 
 Charities 
 
 Chanty Public charity was at first almost entirely confined to the 
 
 relief of the poor. In the older states this was at first granted 
 to the local authorities. Originally it was little more than 
 granting outdoor relief, but as the districts became more 
 settled and pauperism increased, provision had to be made 
 for the maintenance of an increasing number of paupers. In 
 
 iSee page 216.
 
 FUNCTIONS OF STATE ADIMINISTR.\TION 177 
 
 some communities the local authorities contracted with some . 
 citizen to care for this class. This process of "farming out" 
 the paupers was most unsatisfactory. The poor-master had 
 interest chiefly in his profits. During the nineteenth century, 
 in many of the older states, poor relief came to be vested in 
 the counties, whose authorities exercised some supervision over 
 the inmates of the town or local institutions. Although there 
 were some improvements, there was little attempt to classify 
 or differentiate the unfortunates, and a single institution or 
 poorhouse might contain paupers, feeble-minded persons, the 
 insane, and often delinquents. 
 
 Local relief has in every state been supplemented by state state 
 relief and state supervision. There are two reasons for this. ^"p"^'^^°'^ 
 In the first place there developed a class of people without fixed 
 residence for whose maintenance the towns were unwilling to 
 appropriate money. In the second place, when the state 
 granted relief for these state paupers it demanded a certain 
 amount of supervision over them. At first this supervision 
 was almost negligible, but gradually it became more minute, 
 and in some instances the state itself maintained institutions 
 for the relief of the state paupers. In general, this has been 
 an improvement. The local authorities are frequently in- 
 efficient and ignorant. Too often their sole idea is to main- 
 tain rather than to cure. Moreover, the local authorities, 
 whether private or public, are less able financially to meet 
 the burdens of their task, and consequently they have called 
 upon the state to supplement their means. 
 
 From many points of view private charity, except in the Private 
 case of great catastrophes, is better than public charity. It in^tTtutions 
 is more personal and more likely to consider the peculiarities 
 of each particular case. Moreover, the effect upon the com- 
 munity of interesting a large number of people in charitable 
 enterprises is good. Nevertheless, private charity is often 
 undiscriminating and unintelligent and too often increases 
 rather than diminishes the number of dependents. Again, 
 successful private charities frequently spend beyond their re- 
 sources and are thus compelled to ask aid from the public 
 treasury for their support.
 
 1 78 STATE AND MUNICIPAL GOVERNMENT 
 
 Should If a private charitable organization receives public aid, it 
 
 c^'ntfes be should indubitably be subject to some sort of public control.^ 
 ^ubiirsu° There is great danger in appropriating a lump sum to a char- 
 pervision? itable organization without guarantee that it will be economi- 
 cally or properly spent. This is all the more dangerous when 
 it is remembered that not infrequently these state grants are 
 the result of political influence. If the policy of making state 
 grants to private institutions is to continue, some method of 
 control or supervision should be employed. In Illinois, for ex- 
 ample, before charitable institutions for children can be incor- 
 porated they must be subject to examination and approval. 
 Oklahoma has gone even further and provides that all public 
 institutions, whether public or private, whether receiving state 
 aid or not, shall be subject to the inspection of state officials. 
 This subjecting of private charity to state inspection and 
 supervision now receives the approval of experts. 
 Local public Even the public charities managed by the local authorities 
 should b\ need state supervision. Investigations in various states show an 
 also subject appalling lack of intelligent direction and proper consideration 
 
 to state ^^ ° ^ 
 
 supervision and reveal great diversities. Vesting the management of the 
 charitable institutions in local boards of trustees too frequently 
 perpetuates local prejudice and inefficiency. At first the state 
 authorities (usually boards) were given the power of visita- 
 tion; but it was soon found that this was not enough, and a 
 measure of direction and management was given to the state 
 authorities. This ran counter to the historical development 
 of the work. In almost every state both the state institutions 
 and, of course, the local institutions were controlled by boards 
 of local trustees. These local boards, while perhaps more 
 familiar with the conditions and presumably able to give more 
 of their time and attention, did not prove altogether satisfac- 
 tory. Economy and efficiency demanded some wider or higher 
 supervision. At first there was an attempt to exercise this by 
 
 ^This question has been frequently discussed at the sessions of the 
 National Conference of Charities and Corrections. See, especially, Pro- 
 ceedings for iQii, pp. 9, 20; ibid, (igoq), p. 397; ibid. (1908), pp. 18- 
 56; ibid. (1905), pp. 434, 494 ; etc.
 
 FUNCTIONS OF STATE ADMINISTRATION 179 
 
 legislative investigations. These, however, proved of little use, 
 since the members too often regarded them as "junkets." 
 
 In 185 1 Massachusetts established a board of alien commis- state 
 
 ■ r ^ 1 c boards of 
 
 sioners havmg certam supervision over specihed classes 01 charities 
 paupers, and in 1863 the Massachusetts State Board of Chari- 
 ties was established. From that time on the system has spread 
 until practically all the states have a department to supervise 
 and, in a measure, to control both the state and local charities. 
 
 The powers which these boards exercise are supervisory. Functions 
 mandatory, or both. In nearly all the states east of the Missis- ^Ipar^tment 
 sippi the earliest state boards exercised merely supervisory of chanty 
 power. The centralized board of control is more usual in the 
 Western states, although New York and Rhode Island had 
 boards of this type in the middle of the nineteenth century. 
 The chief characteristic of the supervisory board is that the 
 actual management of the institution or charity is still vested 
 in a local board of trustees. This insures the services of cer- 
 tain public-minded citizens, but not necessarily of expert per- 
 sons. The legal powers of the supervisory board are slight, 
 yet their influence, through publicity, is great. Actually, 
 there are now very few states which maintain purely super- 
 visory boards. In almost every instance the success of these 
 boards has justified giving them more power, chiefly in the 
 way of veto. 
 
 The administrative boards of control which are found in Administra- 
 many states are to be distinguished from the supervisory boards o7conuoi 
 because of their composition. The administrative boards con- 
 tain a number of small-salaried members who presumably de- 
 vote their full time. A very real danger arises in this type 
 that it may be used for political purposes, particularly in the 
 way of patronage. To prevent this Iowa has devised an almost 
 perfect system which, while vesting in the board the appoint- 
 ment of the superintendents of the different institutions, leaves 
 to the latter the appointment of the subordinate employees. 
 The advantages of the board of control lie in the fixing of 
 uniform salaries, the possibility of buying on a larger scale, 
 the careful supervision of the financial administration of the
 
 i8o STATE AND MUNICIPAL GOVERNMENT 
 
 Correctional 
 institutions 
 
 State 
 supervision 
 
 Problems 
 connected 
 with cor- 
 rectional in- 
 stitutions: 
 (t) Classi- 
 fication 
 
 different institutions, and the initiation of policies as the result 
 of research and extended investigations. A danger lies in the 
 fact that the board may become bureaucratic, slow to alter 
 its policy, and, most important of all, independent of higher 
 supervision. 
 
 Correctional Institutions 
 
 Originally the correctional institutions consisted of the jails 
 maintained in the older states by the counties and supple- 
 mented by a state prison. Until the nineteenth century there 
 was little intelligent interest shown in penology. The local 
 authorities made inadequate provision in their local jails for the 
 inmates, and there was no attempt to separate different classes 
 of offenders — often the insane or defective were confined in 
 the same institution and no attempt was made to separate 
 juvenile offenders and those convicted of petty crimes from the 
 more hardened criminals. The sanitary conditions of the jails 
 were often wretched. 
 
 State supervision began in 1846 with the establishment of 
 the inspectors of the state prison in New York, and from that 
 date the system was expanded. It generally functioned through 
 a board or commission and at first, as in the case of charities, 
 had only supervisory power. In many states the supervision 
 of state charities and state prisons was intrusted to the same 
 board. What has been said of the various types of the adminis- 
 tration of state charities would apply to the correctional institu- 
 tion. The same problems of local trustees and state supervision 
 and, finally, control have been worked out in this field with 
 practically the same results as in the field of charity. The 
 modern tendency is now to vest not only the supervision but a 
 large measure of control in the hands of a state board or 
 commission. 
 
 Practically all the states make some attempts at the classi- 
 fication of criminals. The most common classifications are 
 into male and female, old and young, habitual and first 
 offenders. In many states, however, this classification is car- 
 ried further, and different types of institutions are established, 
 like reformatories, state farms, and so forth.
 
 FUNCTIONS OF STATE ADMINISTRATION i8i 
 
 It has been found necessary to provide employment for (a) work 
 prisoners. This corripulsory labor has a twofold advantage : in 
 many instances it accelerates reformation and preserves disci- 
 pline and it also relieves the state of some of the burden con- 
 nected with the prisoner. The helpful results of labor for the 
 prisoner are practically everywhere admitted, but very grave 
 difficulties and divergences lie in its application. In some 
 states the lease system is employed, by which the labor of the 
 convicts is let out to a contractor. This is highly objectionable 
 and is subject to grave abuses. A better system is the employ- 
 ment of the convicts by the state on state enterprises. Where 
 these involve out-of-door labor, such as building roads or 
 working on farms, the results have been extremely fortunate. 
 Any system, however, of the employment of convict labor is 
 bound to bring it into competition with free labor and thus 
 is subject to criticism and opposition from the labor organiza- 
 tions. In many instances the labor of the convicts is confined 
 to the production of goods used in the public institutions of the 
 state or its local divisions. This still involves indirect com- 
 petition, but is probably the best system which can be devised. 
 
 Criminal law usually provides punishment for specific crimes, (3) Boards 
 with a maximum or minimum sentence. This is given by the and^paroie 
 judge, whose only knowledge of the prisoner is derived from 
 the prisoner's past as disclosed in the trial, and at best is 
 uncertain. Many states adopt the system of indeterminate 
 sentences, prescribing a minimum and maximum and vesting 
 in some board or commissioner the power to determine at 
 what time the prisoner should be released. Another system is 
 to release prisoners on their parole, requiring them to report 
 to the authorities at stated intervals. It is for this purpose that 
 boards of parole are appointed. At Sing Sing prison. New 
 York, a system of "follow up" work is undertaken by a staff 
 of social agents.^ For less serious offenders many states have 
 evolved the system of probation, according to which a first 
 offender is not sentenced but is placed upon probation, subject 
 to the direction of a board or officer. These newer methods 
 of dealing with criminals are designed to decrease crime by 
 ^See Mental Hygiene, Vol. Ill, pp. 65-77.
 
 1 82 STATE AND MUNICIPAL GOVERNMENT 
 
 effecting a reformation before the criminal habit is formed. 
 To insure success they must be carefully and intelligently 
 administered and subject to most careful supervision. 
 
 Public Health^ 
 
 Early The earliest measures concerning public health were in the 
 
 at public- nature of quarantines. The port authorities of the principal 
 ministration seaports, acting under general governmental authority, at a 
 very early date took steps to protect the health of their 
 communities against the introduction of contagious diseases. 
 These attempts were not altogether successful, and the leading 
 seaports of the Atlantic coast — Baltimore, Philadelphia, New 
 York, and Boston — found it necessary to establish local boards 
 of health in the eighteenth century. The earliest state-wide 
 system of town boards of health was established by INIassachu- 
 setts in 1787 and was followed by Connecticut in 1805. The 
 first state board of health was instituted by Louisiana in 1865, 
 but this dealt chiefly with the quarantine regulations at the port 
 of New Orleans. The first state board of health to exercise the 
 modern functions was established by ^Massachusetts in 1869. 
 organiza- In most States there is a state board of health, but in some 
 health States there are other boards which perform analogous func- 
 authonties ^JQjjg^ ]jj.g supervision over the disposal of sewage, the inspec- 
 tion of food and drugs, and the safeguarding of water supplies. 
 The size of the board varies as well as the qualifications of its 
 members. In many states one portion of the board is ex officio, 
 while the other is chosen on the basis of professional require- 
 ments. In a majority of the states the members were appointed 
 by the governor. A more recent tendency is to specify certain 
 special professional qualifications, as in the act of 1913 in 
 New York, which requires that the council shall consist of six 
 members, of whom three shall be physicians, one shall have 
 had training or experience in sanitary science, and one shall be 
 a sanitary engineer. INIassachusetts has a similar council of 
 professionally trained experts. 
 
 ' Sec J. M. Mathews, Principles of American State Administration, 
 chap, xiv, with bibliography.
 
 FUNCTIONS OF STATE ADMINISTRATION 183 
 
 In the majority of the states the executive officer is ap- The 
 pointed by the board itself. In some states high professional officeV^^ 
 requirements are insisted upon.^ The effectiveness of the 
 health administration is generally in proportion to the freedom 
 with which the executive officer is allowed to handle adminis- 
 trative duties. On the other hand, the framing of health 
 ordinances is such an important function that the advice of 
 the board is highly desirable. In both New York and Massa- 
 chusetts, however, the commissioner overshadows the board 
 or council, while in Oklahoma the board consists of one 
 — the commissioner — and in Pennsylvania the council is 
 purely advisory. 
 
 The powers and duties of the state boards of health may powers and 
 be classified as (i) indirect or supervisory, which in gen- sute^oLds 
 eral is the method by which their functions are exercised in °^ health 
 most of the states; or (2) direct, that is, the mandatory 
 control of the local boards or actual performance of measures. 
 Another classification would be into (i) legislative powers 
 (that is, the framing of sanitary regulations), (2) judicial 
 powers (that is, the interpretation of the sanitary laws and 
 codes, the issuing of warrants, and the summoning of wit- 
 nesses), and (3) administrative powers. This latter constitutes 
 the bulk of the work of the commission and is generally per- 
 formed by the executive agent. It would include the establish- 
 ment of quarantines, the inspection of public buildings, and 
 the abatement of nuisances. A third classification might be 
 according to the nature of the power exercised, as follows: 
 (i) information and research, (2) licensing and examination, 
 (3) prevention of disease. 
 
 The function of information and research originally involved information 
 
 and research 
 
 little more than the collection of vital statistics, but it has been 
 rapidly expanded. Special research laboratories are established 
 in some states for the purpose of determining the cause and 
 prevention of certain diseases. Laboratories are maintained 
 
 1 Modern experience shows that the health officer must be more than 
 a physician and more than an engineer — he must have a training in many 
 fields. Some educational institutions have a course of a special character 
 for the training of health officers.
 
 1 84 STATE AND MUNICIPAL GOVERNMENT 
 
 Examining 
 and licens- 
 ing func- 
 tions 
 
 Prevention 
 Of disease 
 
 The relation 
 between 
 the state 
 and local 
 authorities 
 
 for the manufacture of vaccines and antitoxins and for bac- 
 teriological diagnoses for physicians. In many states the board 
 of health is charged with the dissemination of information, 
 since it has been found that health measures are of little avail 
 without public cooperation. Bulletins are issued, lectures are 
 given, and even moving pictures are utilized to bring home 
 to the population the necessity for personal attention to health 
 for the sake of the community. This function is rapidly in- 
 creasing, and with its increase rises the problem of whether 
 it should be undertaken by the educational department or the 
 department of health. 
 
 The second function deals not only with the examination and 
 licensing of persons engaged in certain professions and occupa- 
 tions, which in some states is intrusted to special boards, but 
 also with the setting up of standards of instruction for schools 
 which undertake to prepare persons for certain occupations.^ 
 
 The third and perhaps the most important function of the 
 board of health is the prevention of disease. In general this 
 may be accomplished in three ways : ( i ) through the establish- 
 ment of a quarantine, either for the local unit or for the state 
 itself; (2) by suppressing unsanitary conditions, which in- 
 volves, perhaps, the inspection of the sources of water and 
 food supplies, the supervision of sewage disposal, and so 
 forth; (3) by the education of the public in sanitary and 
 hygienic measures. 
 
 Until the middle of the nineteenth century care of the public 
 health was intrusted almost entirely to the local authorities. 
 As long as this was satisfactory there was little demand for 
 state action or control except in the case of maritime quaran- 
 tine. The growth of population and, particularly, its conges- 
 tion made communicable diseases a greater menace, and the 
 danger of epidemics spreading beyond a locality brought in 
 the state authorities. At first state authority was exercised 
 only in an advisory manner. Researches were undertaken, 
 their results were communicated to the local boards, and pres- 
 sure was brought to bear through the medium of pul)licity. 
 A second step was to require reports from the local authorities. 
 1 Nurses, midwivcs, optometrists, etc.
 
 FUNCTIONS OF STATE ADMINISTRATION 185 
 
 A third step was the division of the states into sanitary dis- 
 tricts and the appointment for each district of state inspectors, 
 who had the power to investigate and cooperate with the local 
 authorities and, in the more advanced states, to take direct 
 action themselves. In about a dozen states the state board 
 has power to remove the local health authorities. In general, 
 however, with the exception of quarantine regulations, the state 
 boards are still largely advisory or supervisory and have little 
 mandatory power. The modern tendency, however, is to in- 
 crease the power of the central authorities. In those states 
 where this is done great satisfaction has resulted. 
 
 Labor-Law Administration 
 
 The departments of administration just described have been changing 
 found in one form or another since the establishment of state cerning the 
 and local government. The regulation of industrial relations sutTregu- 
 and the whole law of labor is a modern development. Until Nation 
 well into the nineteenth century the doctrine of noninterfer- 
 ence was firmly held throughout the United States. Business 
 and industry and their relations to their employees were con- 
 sidered outside of the sphere of public regulation. Only in 
 those industries which were affected with the public interest, 
 like railroads and warehouses, did the state intervene, and 
 then only to the extent of regulating the rates or prescribing 
 the services. The state next attempted regulation of business 
 for public safety and, finally, for the laborer himself. 
 
 Typical of the changed spirit are the laws which attempt Regulation 
 to regulate industries on the grounds of health. The pursuit on the score 
 of certain industries in some states is absolutely forbidden ; °^ ''^^"'^ 
 for example, the manufacture of matches out of white phos- 
 phorus. Other industries which are regarded as dangerous are 
 subject to special laws limiting the hours during which the 
 workman may be employed ; for example, Colorado limits the 
 number of hours for employment of miners underground. Other 
 laws provide special regulations for different occupations; as, 
 for example, the requirement that appliances shall be installed 
 in certain industries to eliminate or diminish the harmful dust.
 
 1 86 STATE AND MUNICIPAL GOVERNMENT 
 
 Workmen's 
 compensa- 
 tion laws 
 
 More general regulations are of the type which provide for 
 the proper sanitary conditions for the employees, such as those 
 which fix the number of cubic feet of air for each employee 
 in order to prevent overcrowding, and the regulations which 
 require the installation of proper toilet and sanitary appliances. 
 Regulation Another class of labor laws deals with the safety of the 
 on^the^core employee. Among these may be mentioned the regulations 
 of safety requiring the installation of suitable fire-escapes, automatic 
 sprinklers, and other devices to minimize the danger of fire. 
 Another class of laws deals with the protection of the work- 
 men against accidents and requires the installation of safety 
 ^ • appliances and guards for moving or dangerous machinery. 
 
 In spite of these laws accidents happen. According to the 
 old doctrines of English common law the employer's liability 
 for these accidents was very strictly limited. He was not held 
 responsible for accidents which resulted from the workman's 
 own carelessness. Moreover, the workman was supposed to 
 assume all risk of accidents for which the employer could not 
 be held responsible on account of faulty machinery. IMost 
 far-reaching, however, was the fellow-servant rule, by which 
 the workmen were supposed to assume the risk of accident 
 resulting from the carelessness or negligence of their fellow 
 employees. At the time when the English courts developed 
 these doctrines manufacturing was in its infancy. It was often- 
 times confined to the home of the employer, and the employers 
 were few. In such conditions there may have been some justi- 
 fication for these rules. With the development of the factory 
 system, however, necessitating the employment of thousands 
 of workmen in a single factory who had little or no relation 
 one with another and were unknown to each other, the fellow- 
 servant rule seemed absurd. Moreover, an industrial accident 
 — whether the result of the employer's negligence or the work- 
 man's carelessness or a totally unavoidable accident — pre- 
 vented the workman from earning his wages and might possibly 
 cause him or his family to become a public charge. To prevent 
 this many state legislatures passed laws repealing the old 
 English common law rules and hoUling the employer finan- 
 cially liable. In some states — for example. New York — these
 
 FUNCTIONS OF STATE ADMINISTRATION 187 
 
 laws were at first held unconstitutional, but by amendments 
 to state constitutions and by the changed opinion of the judges 
 almost all the states have been able to pass laws of this type. 
 Practically every state requires the manufacturer to insure his 
 workmen against accidents or else provides simple and direct 
 methods by which an injured workman may obtain compensa- 
 tion. Manufacturers are now quite generally insuring them- 
 selves against such accidents, the cost being charged along with 
 taxes, wages, and the other expenses of the business and 
 ultimately added to the price of the article. This distributes 
 the burden of supporting or compensating injured workmen 
 throughout the entire community, instead of compelling the 
 manufacturer to bear it all or forcing the workman or his 
 family to become a public charge. 
 
 In some states the movement has gone still further, and Health 
 commissions are appointed looking toward the establishment ^"^""^ '^'^ 
 of some form of insurance against loss of time because of dis- 
 ease or sickness. So far no state has yet adopted such a law, 
 although in 19 19 in New York a bill for this purpose passed 
 the senate, but did not come to vote in the assembly. 
 
 The regulation of hours of labor began "with limitations upon Regulation 
 the hours at which women might work in factories or at certain of ia*bo? 
 employments. In many states these hours are limited to not 
 more than forty-eight hours a week, or eight a day. In some 
 states the night labor of women is prohibited. These limita- 
 tions upon the hours of women's labor are absolute, and to 
 employ them beyond the specified number of hours or during 
 the prohibited times subjects the employer to a fine. Some 
 states — for example, Oregon — have established the ten-hour 
 day for men in all industries. This is not an absolute prohibi- 
 tion, however, since manufacturers may employ their workmen 
 for more than ten hours, provided they give additional com- 
 pensation. It has been noted, under the regulations for health, 
 that in unhealthy and dangerous occupations the hours of 
 workmen have long been limited. 
 
 In most states there are regulations concerning the employ- chiid labor 
 ment of children. The employment of children in certain occu- 
 pations, such as mining, is absolutely prohibited in some
 
 1 88 STATE AND MUNICIPAL GOVERNMENT 
 
 states.^ In others there is a minimum age, usually fourteen, 
 below which children may not be employed in factory or mer- 
 cantile occupations. Yet in other states children above four- 
 teen but below a certain age, usually sixteen, may be employed 
 for part-time work, provided they attend continuation schools 
 for a certain number of hours a week. During 19 19 Congress 
 attempted to strengthen the hands of the states by the passage 
 of the second child-labor law, which set a minimum age of 
 fourteen for the employment of children in factories, of sixteen 
 for mines and quarries, and a prohibition upon the employment 
 of children in night work or for more than six days a week. 
 To accomplish this Congress invoked the taxing power. 
 Minimum Fourteen states and territories have passed laws providing 
 
 for the establishment of a minimum wage for the employment 
 of women. In some states — New Jersey, for example — this 
 wage is fixed by the legislature and is compulsory upon the 
 employer. In ^Massachusetts and other states a commission 
 investigates the occupation and recommends a minimum wage. 
 Although the Massachusetts system is dependent for its en- 
 forcement upon publicity, yet there is no instance where the 
 recommendation has not been complied with. 
 Conciliation The relations of the employers to the employees have also 
 tion ^ ^ ^ ' been subjects of state legislation. The frequent occurrence of 
 strikes and lockouts has led many states to adopt and establish 
 boards of conciliation and arbitration, the purpose of these 
 boards being largely remedial, although in some instances it is 
 preventive. In the latter type an industrial dispute may be 
 submitted to the board before a strike has been declared ; the 
 board hearing both sides may make recommendations. In the 
 former type the board does not act until a strike has actually 
 taken place. 
 Administra- This revicw of labor legislation is by no means comprehen- 
 labor laws sive. Different states have at various times passed and are 
 passing labor laws of all sorts. The whole system of labor 
 legislation grew or developed piecemeal, and its administration 
 bears evidence of such development. Some of the laws — for 
 example, those regarding public health — were administered by 
 ' New Jersey and North Dakota.
 
 FUNCTIONS OF STATE ADMINISTRATION 189 
 
 the local and state boards of health. For other laws special 
 factory inspectors were appointed, while still others (like the 
 minimum- wage law) caused the creation of special commis- 
 sions. Thus, not only is the administration of labor legislation 
 shared, like other functions of state administration, between 
 the local and state authorities but there are a multitude of 
 independent, uncorrelated agencies engaged in such administra- 
 tion. In some states the general process of consolidation which 
 has been noted in other fields of state administration has 
 taken place in the administration of labor laws. Thus, in the 
 Massachusetts reorganization act of 1919 five different agencies 
 were consolidated in the department of labor and industries 
 and were placed under a commissioner, aided by an assistant 
 commissioner and three associate commissioners. There still 
 remains a special department for industrial accidents, but the 
 tendency toward consolidation is very strong. 
 
 Agriculture 
 
 In some states the regulations and boards for the supervision 
 and encouragement of agriculture are even more varied than 
 those for the industrial wage-earners. It would be almost im- 
 possible to make a complete catalogue of all the agricultural 
 activities in all the states, but certain activities may be enu- 
 merated: (i) Statistical, educational, and research. This group 
 of activities includes the collection of statistics, the holding 
 and supervision of farmers' institutes and fairs, the analysis of 
 soils and fertilizers, the registration of live stock, and the study 
 and suppression of animal and plant diseases. (2) Inspection. 
 This work covers the inspection of dairies, dairy products, 
 herds, and meat products, and the grading of cotton, fruits, 
 and other crops. (3) Conservation. This includes the preser- 
 vation and propagation of fish and game, the conservation 
 of the natural resources (especially the forests), the drain- 
 age of swamps, and the establishment of projects for irrigation. 
 (4) Supervision and examination. These functions include the 
 supervision of public warehouses and markets, the regulation 
 of cold storage, the examination and licensing of veterinarians.
 
 190 STATE AND IMUNICIPAL GOVERNMENT 
 
 Adminis- Like the labor laws, the laws concerning agriculture developed 
 
 a^gencies piecemeal, and frequently new officers or agencies were ap- 
 pointed for each law. The general tendency now is to con- 
 solidate and correlate these various activities in a single 
 department. This was accomplished by the reorganization law 
 of ]\Iassachusetts in 19 19, by which a commissioner and an 
 advisory board of six took over the administration of this most 
 varied department. There still remains, however, in several 
 states a department of conservation, which, in Massachusetts, 
 has charge of matters connected with forestry, fisheries and 
 game, and animal industry. 
 
 Regulation of Corporations 
 
 Supervision The powcr to create a corporation is a governmental power. 
 
 tions'^^"'^^" Originally this Vv-as exercised by the state legislatures, which, 
 by special acts, granted charters of incorporation to different 
 groups desiring such a status. The decision of the Supreme 
 Court in 1819 in the Dartmouth College case established the 
 rule that a charter of incorporation was a contract and, once 
 granted, could not be altered or amended except by mutual 
 consent without violating the prohibition in the Federal Con- 
 stitution. Many states at once placed restrictions in their con- 
 stitutions, declaring that no legal charters could be granted 
 unless subject to alteration or amendment by the legislature, 
 and all states in one way or another exercised administrative 
 control and supervision over certain types of corporations. 
 As corporate organization became more and more common the 
 demand for greater regulation and control grew stronger, until 
 in most states corporations of all sorts are subject to some 
 sort of supervision and corporations of certain types to constant 
 and unlimited supervision and control. > 
 
 General Most States have abandoned the practice of granting charters 
 
 forcoVora- by Special acts of the legislature and have passed general laws 
 by which charters are granted according to certain definite 
 principles for certain purposes. The issuance of such charters 
 of corporation was usually vested in (he secretary of state. 
 With the increase in the number of incorjiorations, however. 
 
 tions
 
 FUNCTIONS OF STATE ADMINISTRATION 191 
 
 special agencies were created — first, a commissioner of cor- 
 porations and then various commissioners to supervise and 
 control certain definite types of corporations. There is no 
 general type of administrative organization, yet without at- 
 tempting to enumerate all the different varieties, the follow- 
 ing classification will cover the most important classes of 
 corporations and methods of control. 
 
 The business of life insurance and banking was among the Banking 
 earliest types of corporations subject to state regulation. In insurance 
 order to make certain that sound financial principles were 
 adopted by these corporations, the state established elaborate 
 laws regulating the organization, the class of securities in which 
 the resources of the corporation might be invested, and the 
 system of accounts which must be followed. The supervision 
 of banks and insurance companies is constant and painstaking. 
 It is generally under the direction of a superintendent of insur- 
 ance or a commissioner of banks, assisted by a staff of exam- 
 iners, who receive the reports of the institutions and sometimes 
 make actual physical examinations and audit the books. 
 
 With the increase of corporations there has been an enormous supervision 
 development in the sale of the securities issued by these cor- 
 porations — stocks, bonds, notes, and other obligations. In 
 order to protect the investing public certain states, beginning 
 with Kansas in 19 u, supervise the sale of such securities, for- 
 bidding it unless an officer (in Kansas the bank commissioner) 
 is convinced that the company has some tangible assets be- 
 hind it and that the public has some information concerning 
 it. This does not mean that the state in any way guarantees 
 the securities of the company, but merely that the public is 
 protected against the sale of worthless, fraudulent, or wildcat 
 securities. 
 
 The great development of the railroads, and the dependence Regulation 
 of communities not simply upon them but upon urban means utilities 
 of transit, created a demand for state regulation in order that 
 the public might receive adequate service at reasonable rates. 
 The right of the state to regulate such utilities was upheld in 
 1876.^ Closely allied with railroad regulation was the regulation 
 
 ^See Mnnn v. Illinois, 94 U. S. 113.
 
 192 STATE AND MUNICIPAL GOVERNMENT 
 
 Regulation 
 of railroads 
 
 Regulation 
 of other 
 public 
 utilities 
 
 of warehouses and grain elevators, while in the cities the regu- 
 lation of public utilities, like gas, electricity, telegraph and 
 telephone companies, was undertaken. 
 
 All states have a railroad commission or commissioners. 
 This agency is charged with the supervision of the railroads and 
 in some cases with the regulation of the rates. More generally, 
 however, the rates are fixed by act of state legislature or by the 
 charters of incorporation. In some states, however, the railroad 
 commission is given authority after investigation to fix rea- 
 sonable rates. In so doing the railroad commission may come 
 in conflict with the Interstate Commerce Commission of the 
 United States. In such cases it has been held that while states 
 might prescribe intrastate rates they had no control over inter- 
 state rates, and even the intrastate rates could not be deter- 
 mined to the disadvantage of the interstate rates.^ When the 
 railroads were operated by federal authority during the World 
 War the states lost still more control over the regulation of 
 rates, and even after the war the Interstate Commerce Com- 
 mission, relying upon the Shreveport decision, fixed intrastate 
 rates contrary to the desires of state railroad commissions and 
 acts of state legislatures. In some states the regulation of rail- 
 roads has developed so far as to supervise the character and 
 the amount of securities which the railroads are allowed to 
 issue and to make an appraisal of the physical value of their 
 property. The reason for this is that such matters affect the 
 determination of just and equitable rates. 
 
 Practically all the states have one or more commissions for 
 the regulation of public utilities, such as gas, electricity, and 
 street railways. These commissions may, like the INIassachu- 
 setts Gas and Electric Lighting Commission of 1885, regulate 
 the issuance of securities or prohibit the construction of unnec- 
 essary works, and have advisory powers concerning the rates 
 charged for service. The Wisconsin law goes even further 
 and allows the commission to make a physical valuation of the 
 plants under its supervision. Some power is given these com- 
 missions to fix the rates which may be charged. By the reor- 
 ganization act of 1 919, Massachusetts consolidated tlie Pul)lic 
 
 ^See the Shreveport case (1914), 234 U. S. 342.
 
 FUNCTIONS OF STATE AD:MINTSTRATI0N 193 
 
 Service Commission and the Gas and Electric Light Commis- Massachu- 
 
 • • setts rcor- 
 
 sion into one department of public utilities. This commission ganization 
 consists of a board of five and exercises the functions of the ^^^ 
 previous boards. 
 
 Other Departments 
 It has been pointed out in previous sections that the states Public 
 
 works 
 
 undertake certain important public works, like the construc- 
 tion of highways, the improvement of waterways, as well as 
 the building and management of state institutions. This branch 
 of administration involves technical, engineering, and busi- 
 ness skill. In most states these functions were originally dis- 
 tributed among a variety of state agencies. The tendency now 
 is to consolidate them into a single department, on the theory 
 that the state acting through a single department can secure 
 a higher grade of service and supervise its public works to 
 better advantage. Without doubt this is generally true, yet 
 cases are not wanting where special departments, because of 
 their interest and zeal, have been fully as efficient as a single 
 centralized department. 
 
 All the states have special departments of finance and taxa- Finance and 
 
 1 -11 1 taxation 
 
 tion. The question of taxation, however, is closely connected 
 with the legislative power of the state and will be treated in a 
 special chapter. 
 
 The foregoing survey does not attempt to include all the Misceiia- 
 
 ... . , neous 
 
 varied branches of state administration. In many states special 
 commissions or boards have been created for special purposes, 
 like the building of a state capital or the consolidation of the 
 state laws. There are art commissioners, city-planning com- 
 missioners, and supervisors of the officials of local areas. It 
 would be almost impossible to enumerate all the permanent 
 and special boards and commissions which are in existence. 
 The number is extremely large, and their work is oftentimes 
 uncorrected and uncoordinated. The general tendency, how- 
 ever, is to consolidate and unify state administrative agencies ; 
 but although this has gone to a considerable extent in some 
 states, the number of administrative agencies is still far too 
 large and their functions are ill defined.
 
 CHAPTER X 
 
 THE STATE LEGISLATURE 
 
 The impor- 
 tance of 
 the state 
 legislature 
 
 The state legislature occupies the most fundamental and 
 important position in the framework of state government. It 
 is the mainspring of the state activities. Its action must gen- 
 erally be invoked^ in the revision of the state constitution ; that 
 is, amendments to the state constitution are framed and passed 
 by the state legislature before being submitted to the people. 
 Even the question of a convention to revise the state constitu- 
 tion must be considered in some form or another by the legis- 
 lature. The state legislature is the lawmaking branch of the 
 government. It controls the civil law; that is, it makes rules 
 governing real and personal property, contracts, inheritance, 
 corporations, and all other civil matters. It enacts the criminal 
 law of the state; that is, it determines what actions of its 
 citizens are subject to punishment by fine, imprisonment, or 
 even death. It has supreme financial power in that it levies 
 taxes and makes appropriations. INIost important of all, the 
 state legislature determines the use of the police power of the 
 state; that is, it enacts regulations governing the health, morals, 
 general welfare, and convenience of the citizens. This is a 
 far-reaching power and is limited only by the specific prohibi- 
 tions in state and Federal constitutions as interpreted and 
 applied by the courts. The actions of the state legislature, as 
 has been said, follow the citizen from his birth to his death, 
 and even after death. His birth is registered by state law; 
 his education is determined by state law ; he is guarded and 
 limited by state law in the occupations in which he may engage ; 
 his property is taxed, his marriage regulated, his savings pro- 
 tected, his life supervised by the police regulations made by 
 
 ' Amendments prnposcrl by the initiative do not as a rule have to be 
 submitted to the legislature. 
 
 •94
 
 THE STATE LEGISLATURE 195 
 
 state law. If he commits a crime the law determines his 
 punishment by fine or imprisonment or even by execution, 
 while after his death the state officials supervise the execution 
 of his will. 
 
 The state legislature has inherent legislative power. The omnipo- 
 Congress of the United States has only delegated power. By state 
 that is meant that Congress may legislate only in those fields legislatures 
 which the Constitution gives to it. The state legislature, on 
 the other hand, may pass any law, on any subject or in any 
 field, which is not explicitly denied to it. Originally this field 
 for state legislation was wide. Thus, in the original constitu- 
 tion of Massachusetts^ the grant reads: "And further, full 
 power and authority are hereby given and granted to the said 
 general court, from time to time to make, ordain, and estab- 
 lish, all manner of wholesome and reasonable orders, laws, 
 statutes, and ordinances, directions and instructions, either 
 .with penalties or without. . . ." The Federal Constitution and 
 the extravagant behavior of some state legislatures have led to 
 the limitation of this wide field, but still the possible extent of 
 state legislation is far wider than that granted to Congress. 
 
 The first and most fundamental limitations upon state legis- Limitations 
 lation are those of the Federal Constitution. These limitations "eg'isiatures 
 are common to all states and are enforced by federal authority 1,° *^^ , 
 
 •' _•' Federal 
 
 through judicial decision. They are to be found chiefly in constitution 
 Article I, Sect, x, where a state is prohibited from making a 
 treaty, granting letters of marque or reprisal, coining money, 
 emitTing bills of credit, making anything but gold or silver 
 legal tender, passing bills of attainder, ex post facto laws, or 
 laws impairing the obligation of contracts, or granting titles of 
 nobility. No state shall lay import or export duties or tonnage 
 duties, or keep troops or ships of war in time of peace, or 
 engage in war. The Thirteenth, Fifteenth, Eighteenth, and 
 Nineteenth Amendments add other restrictions: slavery is 
 forbidden by the Thirteenth Amendment ; the power of the 
 states to deny suffrage on account of race, color, previous con- 
 dition of servitude, or sex is prohibited by the Fifteenth and 
 Nineteenth Amendments ; prohibition is established by the 
 
 1 Article IV.
 
 196 STATE AND MUNICIPAL GOVERNMENT 
 
 Eighteenth Amendment. The most far-reaching prohibition, 
 however, Hes in the Fourteenth Amendment. By this, citizens 
 of the United States are declared to be citizens of the state in 
 which they reside, and no state may abridge the privileges or 
 immunities of such citizen, or deprive any person of life, 
 liberty, or property without due process of law, or deny to 
 any person the equal protection of the laws. The application 
 of this amendment gives the Supreme Court of the United 
 States the right to sit in judgment upon state legislation and 
 makes it in many ways the censor of state laws. This amend- 
 ment has profoundly altered the original Constitution. It was 
 the longest step toward centralization and has proved to be 
 the most effective check upon the legislation of the states. In 
 recent years, however, the court is showing a tendency to 
 accept the discretion of the state legislatures and to uphold 
 laws passed under the police power, rather than to substitute 
 its own point of view for that of the state legislature. 
 Limitations Each State scts some limits upon the powers of the state 
 stitu^ions"' legislature. A comprehensive enumeration of these limitations 
 would be impossible unless a digest were made of the constitu- 
 tion of every state. Nevertheless it is possible to group the 
 more fundamental limitations into certain categories, 
 (i) The gov- In no state is the legislature the sole authority participating 
 ernor's veto ^^ ^j^^ passage of laws. Everywhere the laws must be submitted 
 to the governor for his approval. The governor's veto, how- 
 ever, is not absolute, but may be overridden by the state 
 legislature. With the adoption of the initiative and referen- 
 
 (2) Direct dum the state legislature shares with the people the lawmaking 
 
 legislation t , . ,-, ,■ i • i -u r • -i 
 
 power. In every state constitution there is a bill of rights 
 
 (3) Guar- guaranteeing to the citizens the fundamental rights of person 
 sonai rights and property. These are usually found in the articles prescrib- 
 ing jury trial, the writ of habeas corpus, freedom of religion, 
 speech, and press, and the provisions which declare that prop- 
 erty shall not be taken for public use without just compensation 
 
 (4) Frame- or by other means than due process of law. The framework of 
 go°vernment ^^6 government is prescribed by the state constitution and may 
 
 not be altered by the -legislature alone. In the more modern 
 constitutions not only arc the three great departments of the
 
 THE STATE LEGISLATURE 197 
 
 state government provided for, but certain subordinate depart- 
 ments or commissions are established. Experience has shov.^n (5) The 
 that it is wise to restrict the financial power of the state legisla- p^wer'* 
 ture. In some states the kinds of taxes which may be levied 
 are designated ; in many, debt limits are prescribed as well as 
 mandatory provisions for the payment of money borrowed by 
 the state. Most state constitutions lay restrictions on the (e) Local 
 
 e .■,■,• 1 • r •111 government 
 
 power 01 the legislature to interfere with local government. 
 
 In some states home rule for municipalities is guaranteed in one 
 
 form or another. In practically all modern constitutions there (7) corpora- 
 
 are special provisions regarding corporations, which provide 
 
 that no special charters or special privileges shall be granted, 
 
 and which subject corporations to supervision and sometimes 
 
 deny to them some of the legal procedure which is guaranteed 
 
 to natural citizens. 
 
 IMany state constitutions prohibit the legislature from pass- (8) Special 
 ing special laws in any form whatsoever. JNIost state con- 
 stitutions prohibit the enactment of special laws on certain 
 specified subjects. The distinction between a general law and 
 a special law is not always easy to perceive. A general law 
 applies to all persons or things subject to the authority of the 
 state, but a general law may also apply to classes of persons, 
 or things, defined according to some essential characteristic, 
 such as sex, age, or profession. For example, a law limiting 
 the hours at which women might work in factories would be a 
 general law. Or a law which compels anyone who practices 
 law within the state to exhibit such qualifications as required 
 by the examinations for the bar would also be a general law. 
 A law, however, which exempted lawyers from taxation would 
 be a special act, inasmuch as lawyers may be distinguished 
 from others on the ground of profession, but this distinction 
 has no relation to the duty of the payment of taxes.^ The 
 specified subjects on which special acts are generally prohibited 
 are very numerous and various, but among them may be in- 
 cluded divorce, court procedure, remission of fines, corpora- 
 tions, and county, town, and municipal affairs. The question 
 
 iSee P. S. Reinsch, American Legislatures and Legislative Methods, 
 pp. 148-149.
 
 198 STATE AND MUNICIPAL G0VERN:MENT 
 
 of special legislation concerning municipalities in contrast to 
 "home rule" will be discussed at length in a later section.^ 
 Composition The legislature of every American state is a bicameral body, 
 legislatures The reasons for this are partly historical, partly theoretical, 
 The and largely practical. In most of the colonies the legislative 
 
 sys^em"^^ assemblies were checked by the action of the governor's council, 
 which, although primarily executive, acted as an upper house 
 in legislation. With the adoption of the Federal Constitution, 
 providing for a legislature composed of the House of Repre- 
 sentatives and Senate, a strong influence was set at work. It is 
 true that the jealousies of the state made the establishment 
 of the Senate necessary, and no such reason compelled the 
 establishment of a second chamber in the state legislature. 
 Nevertheless the federal analogy has had a great influence in 
 keeping the bicameral system unchanged in spite of certain 
 defects which have been made manifest. Although there are 
 no local units of importance and influence within the state 
 corresponding to the states within the Union, yet there are 
 entirely valid theoretical reasons for the establishment of a 
 second chamber. Representative government unchecked rep- 
 resents simply the majority. Perfect representative govern- 
 ment should represent all important classes within the state. 
 The framers of the original state constitutions desired that 
 property should not be at the mercy of the majority, who 
 were largely propertyless. Thus they created an upper house or 
 senate for membership in which higher property qualifications 
 were required, and thus, by giving coordinate responsibility 
 to both houses of the legislature, they hoped to insure for 
 wealth an equal influence with numbers and to protect the 
 propertied class against the radical legislation which they 
 feared from the majority. With the abolition of property 
 qualifications for the electorate the original purpose of a 
 bicameral legislature has apparently disappeared, but with 
 the massing of the population of the states in large cities a 
 new justification for the bicameral system is put forward. In 
 order that the state legislature shall represent all sections of 
 the state, territorially considered, proxisions are usually found 
 
 'See pages 378-392-
 
 THE STATE LEGISLATURE 199 
 
 in state constitutions which make at least one house of the 
 legislature represent territorial regions, while the other may 
 represent the majority party. 
 
 The bicameral system is, moreover, justified on more theo- Theoretical 
 retical grounds. It is held that consideration of measures by J"ons of the 
 two separate bodies acting independently of each other and at ^'camerai 
 different times will insure more careful legislation. If there 
 be any distinct difference in the character of the membership, 
 or the method of choice, or the length of terms of those two 
 bodies, perhaps this may be true. At present, however, the 
 qualifications for both houses are practically the same ; there 
 is no difference in the method of election. It is true that the 
 members of the senate generally represent larger constituencies 
 than do the members of the other house, but this difference 
 is not of sufficient importance to justify in itself a second 
 chamber. The growth of political parties and the perfection 
 of the party organization generally result in the control of both 
 houses of the legislature by the same party. The party pro- 
 gram is more valued than the careful theoretical scrutiny each 
 house is supposed to give, and measures under the pressure of 
 party discipline are put through both houses with little regard 
 to the double consideration the system is supposed to compel. 
 
 In spite of the theoretical and historical advantages of the Dangers 
 bicameral system certain evils have resulted. The senate, or bicameral 
 upper chamber, is the smaller body. It therefore offers an system 
 easier field for political or private manipulation. In some 
 states, at certain periods when corrupt influences are predomi- 
 nant, the will of the electorate has been thwarted by the ma- 
 nipulation of a few senators, thereby forcing a deadlock. At 
 other times a deadlock between the house and senate has been 
 broken only by means of a compromise, which was unsatisfac- 
 tory to the electorate but less harmful to the interests which 
 were fearful of legislative action. When the United States sen- 
 ators were elected by the state legislatures, state senators were 
 subject to tremendous pressure from one candidate or another. 
 
 In the eyes of many observers the bicameral system has not Proportional 
 justified itself. The theoretical arguments for complete rather tion 
 than mere majority representation are freely admitted. But it
 
 2 00 STATE AND MUNICIPAL GOVERNMENT 
 
 is hoped to obtain this more perfect representation through 
 some system of preferential, cumulative, or proportional voting. 
 Illinois, while not abolishing the bicameral system, has adopted 
 a method of cumulative voting.^ By this the house of repre- 
 sentatives consists of three times the number of the members 
 of the senate. Representatives are chosen from senatorial dis- 
 tricts, and each qualified voter may cast as many votes for one 
 candidate as there are representatives to be elected, or he may 
 distribute his votes among the candidates. This has insured 
 minority representation. It is not proportional representation, 
 which has been previously described.- No state, however, has 
 yet adopted such a system.'^ 
 Legislative The question of the apportionment of state representatives 
 
 apportion- , . . , ,^, . . r n i 
 
 ment and senators is an important one.* Ihe constitutions of all the 
 
 states recognize two principles — population and territory. In 
 few states are the representatives distributed according to the 
 unchecked rule of either population or territories. Restrictions 
 are placed, in most states, upon representation by population, 
 and territorial representation receives special favor. In all states 
 the upper house is smaller than the lower, and in most states 
 there is a different basis of representation for the two houses. 
 The county is the unit of representation for the lower house 
 outside of New England. In some states each county constitutes 
 
 ^See B. F. Moore, "The History of Cumulative Voting and Minority 
 Representation in Illinois" (1870-1908), Illinois University Studies, 1909. 
 
 2 See pages 102-104. 
 
 ^The proposals for a model state constitution put forward by the 
 committee on state government of the National Municipal League advo- 
 cate a unicameral state legislature chosen by proportional representation. 
 National Municipal Review, Vol. IX, p. 711. 
 
 ^See P. S. Reinsch, American Legislatures and Legislative Methods, 
 chap, vii; A. N. Holcombe, State Government in the United States, 
 pp. 242-248. P. S. Reinsch, Readings on American State Government, 
 pp. 120-126, gives the speech of Eiihu Root in the New York Constitu- 
 tional Convention of 1894; PP- 127-120, the message of Governor 
 McLean of Connecticut. G. H. Haynes, Representation in State Legis- 
 latures, presents an exhaustive study of the basis of representation, the 
 organization of the legislatures, the personnel of the legislators, and the 
 party strength of the legislatures of 1899. These studies also appear in 
 the Annals of the American Academy of Political and Social Science, 
 Vol. VL p. 254; Vol. XV, pp. 204, 40s; Vol. XVI, pp. 93, 243.
 
 THE STATE LEGISLATURE 201 
 
 a separate representative district. The total number of rep- umt of 
 resentatives to be chosen is distributed among the counties, tion fnlhe 
 theoretically in proportion to population, with the proviso J^^outslde' 
 that no county receive less than one. The representatives are «* New 
 
 , _, . England 
 
 chosen upon a general ticket from the county at large. This 
 method is followed in several of the Northern and Middle 
 Western states ; for example, in New Jersey, Ohio, and Iowa. 
 In less populous states containing numerous counties this 
 would make the house too large; hence in some such states 
 sparsely settled counties are grouped together, while a more 
 populous county is allowed a representative of its own. In 
 other cases the entire state is divided into electoral districts, 
 theoretically of contiguous territory and equal population, and 
 each district returns one member. There is a regulation which 
 provides that each county shall contain at least one district. In 
 other cases counties are combined or subdivided in order to 
 form electoral districts. The basis of representation in New 
 England states is the town, but their method of apportionment 
 varies. In Massachusetts the towns and cities are grouped or (2) m New 
 
 , , • ^ 1 1 England 
 
 divided as is necessary in order to make approximately equal, 
 contiguous districts; in Connecticut and Vermont each town 
 or city receives a fixed number of representatives and in Ver- 
 mont an equal number of representatives irrespective of its 
 population. 
 
 The basis of representation for the senate is more uniform, unit of 
 In most states single-member districts are created by dividing tatio^for 
 or combining counties. But in Ohio the larger communities, ^^^ ®^°^^^ 
 which would be entitled to elect more than one member, are 
 not divided into single-member districts, but choose two or 
 three according to population. In some states each county is 
 entitled to an equal number of representatives irrespective of 
 its population. 
 
 Legislative apportionment has accomplished what it intended. The results 
 With the exception of Connecticut and Vermont the lower tiveappor- 
 house represents the majority of the population. The upper tionment 
 house also represents the majority. Since the members of the 
 upper house are chosen from larger districts, the effect of 
 plurality election is to increase the strength of the majority
 
 202 STATE AND MUNICIPAL GOVERNMENT 
 
 and to diminish the representation which the minority might 
 gain b}^ the use of smaller districts. The majority gains at 
 the expense of the minority in yet another way. This is by 
 means of gerrymandering. The purpose of a gerrymander is 
 to enable the majority to carry the greatest number of districts 
 with the fewest number of votes, or, to put it in other words, 
 to have as large a minority in each district as is compatible 
 with the safety of the majority. Although most state constitu- 
 tions provide that the electoral districts shall be substantially 
 equal in population and composed of contiguous territory, the 
 state legislature to which the construction of these districts 
 is confided interprets "substantially equal populations" with 
 the greatest liberality, and it is not difficult to find in almost 
 any state grave inequalities of population. The phrase "con- 
 tiguous territory" has also been interpreted most grotesquely.^ 
 Discrimina- The bicameral system makes it easy to discriminate against 
 cities^^^°^* cities. This is accomplished in various ways. According to 
 the Connecticut constitution the lower house represents the 
 towns without regard to numbers. Thus the four smallest 
 Connecticut towns, with a total population of 1567, are rep- 
 resented by 5 members; but the four most populous cities, 
 containing a population of 309,982, have only 8 members, 
 although, on the basis of population, they would be entitled to 
 87.- A similar condition exists in Vermont. In New York the 
 constitution provides that each county except Hamilton shall 
 have at least one member in the assembly (as the lower house 
 is called), with the result that about one fifth of the districts 
 fall below the ratio established by dividing the population by 
 one hundred and fifty, the number of members allowed for the 
 assembly. As a result the smaller counties are over-represented, 
 while almost all the larger counties are under-represented. Not 
 content with this discrimination against the cities, the New 
 York constitution provides that no county, no matter how large, 
 shall have more than one third of the senators, and that no two 
 
 ^For examples with illustrations see J. R. Commons, Proportional 
 Representation (2d ed.), p. 55, and P. S. Reinsch, American Legislatures 
 and Legislative Methods, pp. 200-204. 
 
 ^C. A. Beard, American Government and Politics (3d ed.), p. 521.
 
 THE STATE LEGISLATURE 203 
 
 adjoining counties or counties separated only by public waters 
 shall have more than one half of the senators. This is a direct 
 discrimination against New York City. 
 
 Since the constitution vests in the legislature the apportion- Attitude of 
 
 , , , , , • , 1 ,1 the courts 
 
 ment of the senators and representatives, the courts have gen- ^n legisia- 
 erally held that this is a discretionary act which is not subject Sj^^^t"' 
 to judicial review. Exceptions, however, are to be found in 
 Michigan (1892), Wisconsin (1892), and Indiana (1892).^ 
 But in general the legislatures are given free hand in appor- 
 tioning the representatives and senators. 
 
 The lower houses in state legislatures vary in size from 413 size of state 
 (New Hampshire) to 35 (Delaware). The senates vary from ^^isaures 
 67 (Minnesota) and 51 (Illinois and New York) to 18 (Utah) 
 and 19 (Arizona). In general, it might be fair to say that 
 the lower houses of the legislature are two or three times as 
 large as the upper houses.- 
 
 In seven states there are annual sessions of the state legis- sessions of 
 lature.^^ In Mississippi and Alabama the legislature meets in legislature 
 regular session only once every four years. Biennial sessions 
 are the rule in all others. In New York and New Jersey the 
 representatives serve for a single year, in the great majority 
 of the other states for two years.* Senators in the New Eng- Length of 
 
 terms 
 
 land states have the same length of term as the representatives 
 — -two years. This is also true in a few other states.^ In some 
 of the Southern states the senators and representatives serve 
 for four years.'' Elsewhere the senators are elected for four years 
 and the representatives for two, except in New Jersey, where 
 the term of the senators is three years and that of the repre- 
 sentatives one. It is thus seen that there is a general tendency 
 to give the senators longer terms and hence, in part, to make 
 
 iSee P. S. Reinsch, American Legislatures and Legislative Methods, 
 pp. 204-212, with references to cases. 
 
 -See tables on pages 204-205. 
 
 3 Connecticut, Georgia, Massachusetts, New Jersey, New York, Rhode 
 Island, and South Carolina. 
 
 4 In Alabama, Louisiana, and Mississippi for four years. 
 
 5 Arizona, Georgia, Idaho, Michigan, Nebraska, North Carolina, Ohio, 
 South Dakota, Tennessee, and Utah. 
 
 6 Alabama, Louisiana, and Mississippi.
 
 2 04 STATE AND MUNICIPAL GOVERNMENT 
 
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 THE STATE LEGISLATURE 
 
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 2o6 STATE AND MUNICIPAL GOVERNMENT 
 
 Length of 
 sessions 
 
 Salaries 
 
 the upper house in some degree different from the lower house. 
 It may be questioned, however, whether these longer terms 
 actually make the senators more conservative and less subject 
 to immediate demands of popular opinion, but it may be justi- 
 fied as carrying out one of the theories of the bicameral system.^ 
 
 Fifteen states set no limit to the length of the regular ses- 
 sion of the legislature. In other states it is limited — in the 
 majority, to sixty days. 
 
 The compensation paid the legislators varies from $200 a ses- 
 sion in New Hampshire and South Carolina to $3500 for two 
 years in Illinois. Massachusetts, New York, and Pennsylvania 
 pay Si 500 per year. The majority of the states, however, 
 while limiting the length of the session, compensate the mem- 
 bers on A per-diem basis. This varies from $3 a day in Ore- 
 gon and Kansas to $10 a day in Delaware and Kentucky, the 
 average being between $5 and S6 a day. 
 
 ^See pages 19S-199.
 
 CHAPTER XI 
 
 THE LEGISLATURE AT WORK 
 
 The members of the state legislature are fairly representative organiza- 
 of the average American. In most houses there is an over- character 
 representation of the legal profession. This, however, may be °^ ®*^f}^ 
 partly explained by the fact that many young lawyers enter 
 political life as a means of advancement in their chosen career. 
 Lawyers of great eminence or wide practice are seldom found. 
 The laboring class is hardly represented. On the other hand, 
 representatives of the farming class are numerous. Many of 
 the members have had some experience in politics, although 
 this is generally confined to holding town, county, or city 
 offices. The majority of the members are not graduates of 
 colleges and seldom have education other than that obtained 
 in the lower public schools, although the lawyers add to this 
 their professional training.^ 
 
 In all states the house of representatives chooses its own officers 
 officers, and in some states a similar privilege is given to the 
 senate. However, in many states the lieutenant governor acts 
 as the presiding officer of the upper house. 
 
 The most important officer in the state legislature is the The speaker 
 speaker of the house of representatives. Nominally he is chosen 
 by the house ; practically, as in all American legislatures, he 
 is elected by the caucus of the party in the majority and 
 this selection is ratified formally by the house. Many elements 
 enter into the choice of the speaker. Personal popularity 
 counts a great deal ; political influence counts even more. Most 
 essential of all, however, is the ability to work with the ap- 
 proval of a group of inlluential members. These unofficial 
 
 iSee Samuel P. Orth, "Our State Legislatures," in Atlantic Monthly, 
 Vol. XCIV, pp. 728 ff. This is also reprinted in P. S. Reinsch, Readings 
 on American State Government, p. 41; see also G. H. Haynes, Repre- 
 sentation in State Legislatures. 
 
 207
 
 208 STATE AND MUNICIPAL GOVERNMENT 
 
 The powers 
 of the 
 speaker : 
 (i) Recog- 
 nition 
 
 leaders are found in the legislature of every state and attain 
 their positions partly through native ability, partly through the 
 backing of political organizations, and in some cases through 
 length of service. They have influence over the other mem- 
 bers of the legislature and, together with the speaker, practi- 
 cally determine the course of legislation. Not infrequently it 
 happens that the candidate for speaker agrees to appoint these 
 leaders to the chairmanships of important and influential com- 
 mittees, thus satisfying their ambitions and obtaining their sup- 
 port for his own election. The speaker and this little group are 
 generally known as the ^'organization." 
 
 Aside from personal influence the speaker derives his power 
 from five different sources. First, it comes from the preroga- 
 tive of recognition. According to the rules of all state legisla- 
 tures no member may take part in debate or introduce any 
 measure unless recognized by the speaker. Thus, unless the 
 speaker wills, a member may be condemned to absolute and 
 ineffectual silence. Recognition is one of the most powerful 
 weapons in the speaker's armory. As a by-product of recog- 
 nition comes the control over what the member shall say or do. 
 In utilizing this the speaker may ask, "For what purpose does 
 the gentleman rise ? " thus compelling the member to disclose his 
 plan, and the speaker may deny recognition unless he approves. 
 (a) RuUngs The speaker decides all points of order. It is obvious that 
 no legislative assembly can proceed without rules. It is the 
 speaker's function to see that the business of the house pro- 
 ceeds according to these rules. A variation from the rules is 
 a cause for objection or for points of order made by members 
 of the house. It is the speaker's function to determine whether 
 or not the procedure is actually in accordance with the rules. 
 The speaker is not simply an impartial presiding officer — he is 
 the product of the party system and is the chief party leader 
 in the house. Thus, not infrequently it happens that he decides 
 points of order in the interest of his party. Of course it is 
 perfectly allowable for any member to appeal to the house 
 from the ruling of the speaker, but since the speaker represents 
 the majority party in the house his ruling is generally sustained. 
 The speaker may very effectually control the organization of
 
 THE LEGISLATURE AT WORK 209 
 
 the house by determining the presence of a quorum or by 
 refusing to put dilatory motions or to allow obstructive tactics. 
 In some cases he has arbitrarily exercised these powers and 
 still more arbitrarily refused to allow appeal from his decisions. 
 
 All committees of the house are appointed by the speaker. (3) Appoint- 
 This, next to recognition, is his most powerful method of re- 
 warding his supporters and punishing his opponents. As is 
 expected, the committees of the legislature are partisan com- 
 mittees, controlled by the party in majority. The speaker goes 
 even further and selects as chairman of the committee not 
 simply a member of his party but one of his supporters, who, 
 if not a member of the organization, holds ideas pleasing to 
 the speaker and agrees with him in the legislation which is 
 deemed wise for the house to undertake. IMembers who are 
 independent or who defy the speaker find themselves upon 
 unimportant committees, and their measures, when referred to 
 committees controlled by the speaker and his friends, have 
 little chance of passage. 
 
 Another prerogative of the speaker is that of referring to the (4) Refer- 
 
 6Z1CC 
 
 appropriate committees the multitude of measures which are 
 introduced. The speaker is thus in a position to refer an objec- 
 tionable measure to a "safe" committee; that is, a committee 
 composed of his friends and supporters. It happens not infre- 
 quently that committees composed of able and independent 
 members find little to occupy their attention except routine 
 business of a nonpartisan character, while seemingly insig- 
 nificant committees are intrusted with the determination of 
 measures of great importance in which the organization is 
 vitally interested. 
 
 In some but by no means all state legislatures there is a (5)com- 
 committee on rules. This committee is nominally charged with rules 
 proposing amendments to the standing rules of the house ; 
 practically it determines the order of business. This is done 
 through the means of introducing special rules which facilitate 
 the consideration of business favored by the organization and 
 thus prevent the consideration of business not so acceptable. 
 
 Both houses of the state legislature have sergeants at arms, other 
 who are charged with keeping order and, in some cases, with
 
 210 STATE AND MUNICIPAL GOVERNMENT 
 
 The 
 
 committee 
 
 system 
 
 The Massa- 
 chusetts 
 committee 
 system 
 
 the payment of the members ; secretaries or clerks, who keep 
 the journal and records of the body ; and other subordinate 
 officials. All these officers, although nominally chosen by the 
 senate or house, are actually picked by the caucus of the party 
 in the majority. 
 
 The mass of legislation which is introduced into state legisla- 
 tures necessitates some preliminary consideration by commit- 
 tees. The power and influence of these committees vary greatly 
 in different states, but in general, according to Professor Hol- 
 combe,^ they may be brought under the following classification, 
 based on the powers which the committees actually exercise. 
 
 In ]\Iassachusetts and a few other states the committees have 
 little independent power. Their only important privilege is 
 that of examining the measures which are referred to them 
 for consideration. By the rules of the house they are obliged 
 to report to the house every measure which has been referred 
 to them with the recommendation that it pass or do not pass, 
 or with amendments. It is the custom for the committees to 
 hold public hearings upon the measures which are referred to 
 them and thus to give the proponents and opponents of the 
 measure an opportunity to state their views. Moreover, since 
 any person may present a measure to the Massachusetts legis- 
 lature by obtaining the indorsement of a single member, the 
 legislature is most open to popular opinion. No committee has 
 any special privilege, and the reports of all committees are acted 
 upon in the order in which they are received unless changed 
 by a four-fifths vote of the house. Thus, in Massachusetts 
 the power of the organization is reduced to its lowest terms, 
 and every measure which has been introduced is given an 
 opportunity to be heard. In addition, there is established a 
 system of joint committees of house and senate which is a 
 great saving of time for both the legislators and the proponents 
 of a measure. The Massachusetts system, however, is extrava- 
 gant of time. The sessions of the legislature generally occupy 
 from five to six months, and the fact that the committees must 
 report every measure referred to them prevents the smothering 
 
 ^Statc Government in the United States, pp. 253-261; P. S. Reinsch, 
 American Legislatures and Legislative Methods, chap. v.
 
 THE LEGISLATURE AT WORK 211 
 
 of foolish bills and compels the legislature to take time to 
 kill measures which ordinarily would receive but short shrift 
 at the hands of a committee.^ 
 
 In most states the committees have more power than is The normal 
 allowed them in Massachusetts. The committees in these states system 
 are privileged to report or not to report a measure, to hold 
 public hearings, or to consider the measure in private. Thus 
 it happens, perhaps fortunately, that a great majority of the 
 measures which are introduced never reach consideration by 
 the legislature, but are buried in committees. This is advan- 
 tageous for most measures, while it gives the opportunity for 
 the organization to smother a measure which is unacceptable 
 to it. It is true that in many states where this system prevails 
 the house, by an extraordinary vote, may discharge the com- 
 mittee from consideration of any measure and thereby bring 
 it directly before the house, but there are great obstacles in the 
 actual working of this device. 
 
 The chairman of a committee of this type occupies a privi- chairman 
 leged position and exercises extraordinary prerogatives. The committee 
 committee meets at the call of the chairman, and thus com- 
 mittee action may be prevented by the very simple device of 
 not calling a meeting.- The chairman, moreover, usually has 
 it in his power to determine whether public hearings shall be 
 held or not. When it is remembered that the chairmen of 
 committees are the supporters of the speaker and members of 
 the organization, it can be clearly seen to what an extent the 
 organization actually controls the legislative product. 
 
 Furthermore, in committees of this type certain committees Privileged 
 are specially privileged in making reports and thus can bring 
 their business directly before the house at any time. In states 
 where this procedure is in vogue the duration of the session is 
 usually limited. Hence there is a great pressure in the last 
 days- of the session, and committees favored by the rules, or 
 
 1 For a full description of the legislative procedure in Massachusetts see 
 L. A. Frothingham, A Brief History of the Constitution and Government 
 of Massachusetts. 
 
 2 In some states — Illinois, for example — 50 per cent of the committee 
 may call a meeting.
 
 212 STATE AND MUNICIPAL GOVERNMENT 
 
 Conference 
 committees 
 
 The 
 
 New York 
 system 
 
 committee chairmen favored by the speaker, can force through 
 their business, while others are unable to gain consideration. 
 The system of joint committees is seldom used in the normal 
 system, and as a result different measures or the same measure 
 varying in detail may be passed by the two houses. 
 
 To compromise these differences a joint committee of con- 
 ference is appointed. This joint committee of conference, 
 under the pretense of arriving at a compromise, may practically 
 rewrite a measure which has been passed by both houses. It is 
 true that the work of the committee of conference must be 
 ratified by both houses, but because of pressure of business and 
 political influence this is generally done with little question. 
 Illinois may be taken as a state where this type of committee 
 organization is seen at its highest development, although the 
 abuses which have been mentioned may be found in other 
 states as well.^ 
 
 What Professor Holcombe characterizes as the New York 
 system is the application to state legislatures of the method 
 which existed in Congress a decade ago — the system where 
 the speaker is the keystone and exercises to a high degree 
 all the powers which have been enumerated. In cooperation 
 with the committee on rules and the chairmen of the other 
 important committees, he absolutely controls the procedure of 
 the legislature and the legislative product. It is the organiza- 
 tion carried to its highest power. It has all the defects which 
 organization rule must have, but it has the advantage of fixing 
 the responsibility very definitely. In the IVIassachusetts system 
 there is little or no responsibility. This is especially true when 
 it is remembered that party voting in state legislatures is less 
 frequent than in other legislative assemblies. In New York 
 the speaker and the chairmen of the committees chosen by the 
 party caucus are actually responsible for the action of the 
 legislature. This responsibility is both positive and negative. 
 They can control the time and procedure of the legislature and 
 thus can be held responsible for the failure to pass any measure. 
 
 iSee C. L. Jones, Statute Law-makinp: in the United States, pp. i8-iq; 
 also Nebraska Legislative Reference Bureau, Bulletin No. j, "Legislative 
 Procedure in the Forty-eight States," p. 217.
 
 THE LEGISLATURE AT WORK 213 
 
 Negatively, through the same means, they can prevent the 
 passage of any measure. The great defect of the New York 
 system is that the legislature may be responsive, not to popular 
 opinion, but to the dictation of party leaders. When the power 
 of the party organization in the nomination and election of 
 candidates is remembered, it will be seen how far the New York 
 system may depart from popular democratic government. 
 
 The problems and functions of a state legislature may be The 
 
 l6£rislcitiv6 
 
 considered under four heads: what the law shall be, on what problem: 
 basis the law shall be made, what form the law shall take, by 
 what process the law shall be enacted.^ 
 
 The determination of the legislative program, or what laws (i)What 
 shall be passed, is set forth in the platform of the party, theuw? 
 Theoretically a party platform promises legislation upon cer- 
 tain subjects, and the voters by the election of the party mem- 
 bers indorse and adopt this program. Actually, however, as 
 has been pointed out, party platforms are very general and 
 are designed to attract voters rather than to set forth matured 
 programs. It is true that in some instances a party will 
 promise legislation of a particular sort. In such instances the 
 party platform fulfills its theoretical function. But, as Presi- 
 dent Lowell has pointed out,- party votes are not so frequent 
 in state legislatures as is ordinarily expected. Machine or boss 
 control there may be, but, as has been shown again and again, 
 this control is sometimes bipartisan. If the party seldom 
 determines what the law shall be, leadership must be looked 
 for elsewhere. This is found more and more frequently in the 
 governor. The governor is in many ways the third house of 
 the legislature, and by means of his messages and his vetoes 
 is frequently able to control the procedure of the legislature and 
 to determine its product.-' For perfect harmony the governor 
 
 1 Professor Holcombe has well classified these functions as selection, 
 collection of information, drafting, and consideration, in "State Govern- 
 ment in the United States," pp. 268-272. 
 
 2 See Report of the American Historical Association, Vol. I, pp. 319- 
 544, and "The Government of England," Vol. II, p. 91, which gives a 
 table of the party votes in Illinois, Massachusetts, New York, Ohio, 
 and Pennsylvania. 
 
 ^See pages 135-139-
 
 214 STATE AND MUNICIPAL GOVERNMENT 
 
 and the organization — that is, the speaker and his supporters 
 in the legislature — must be of the same party or of the same 
 branch of the party. 
 (2) On what Having determined what shall be the subject of legislation, 
 the'iaw be the next problem is to obtain information concerning these 
 made? subjects. This is done in various ways. The most formal and 
 [investi- effective method is by an investigation of a committee or 
 mittees] commission either appointed by the governor or chosen by the 
 legislature. This commission often exercises quasi-judicial 
 power and may summon witnesses and take testimony under 
 oath. An example of a proceeding of this sort is the insurance 
 investigations held in New York in 1905. As a result of these 
 investigations the laws governing insurance companies were 
 revised and a new statute enacted. Less formal methods are 
 [Public the public hearings of an ordinary legislative committee. Some- 
 times the information upon which the law is framed is obtained 
 [Report of from the report of some administrative officer who is an expert 
 tive officer]' in his particular field. For the great mass of legislation, how- 
 ever, little investigation is attempted and less information 
 sought. A law is introduced and, if accepted by the commit- 
 tee and reported to the house, is generally passed. In only a 
 few states are the committees compelled to obtain enlighten- 
 ment by public hearings. 
 [The lobby] The most sinister method of obtaining information is by 
 means of the lobby. The lobby may be defined as a group of 
 persons employed to give information to the legislators. This 
 definition, hpwever, need not connote anything improper, — 
 any citizen or group of citizens may, with all legitimacy, give 
 information and urge the legislators to adopt or to oppose 
 certain measures, — but in its usual sense the lobby means a 
 group of agents who are paid by persons interested to gain the 
 support of the legislators for certain acts or to prevent the 
 passage of measures deemed harmful to them. Even in this 
 sense the lobby is not necessarily an evil. A college, a bank, 
 or a labor union may with perfect propriety employ counsel 
 to state the reasons for or against the passage of certain legis- 
 lation. Should the activities of lobbyists of this last type
 
 THE LEGISLATURE AT WORK 215 
 
 be confined entirely to the public hearings of committees, to 
 the preparation of briefs and printed documents, little excep- 
 tion could be taken to them, save that the longest purse would 
 be able to obtain the most assistance from such outside 
 agencies. When, however, the lobby attempts to influence the 
 legislator in secret ways by means of promises of reward, 
 financial or otherwise, it becomes a sinister and corrupt 
 institution. Twenty years ago the influence of lobbies was 
 extremely powerful in many states and corruption was wide- 
 spread. When it was realized that many of the legislators 
 owed their allegiance not to the electorate or to their party, 
 but to a legislative agent who practically controlled their vote, 
 measures were taken to check this parasite. Moreover, the 
 interests employing lobbyists not infrequently found that the 
 methods used only whetted the appetites of the legislators and 
 the lobbyists themselves. Instances are not wanting of lobby- 
 ists who had hostile legislation introduced in order that they 
 might show their employers how it might be defeated.^ 
 
 Suppression of a corrupt lobby is extremely difficult. In [Regulation 
 1890- Massachusetts attempted to deal with this problem, but lobby] 
 not very successfully. Lobbyists were classified as legislative 
 counsel who were employed to make oral arguments before 
 committees and as legislative agents who were used to interview 
 individual legislators. Both classes were required to register 
 with a sergeant at arms, stating their names and employers 
 and the bills in connection with which they were employed. 
 After the close of each session they were required to state the 
 compensation they had received for their services. Their em- 
 ployers also were obliged to file the amount of money paid for 
 the purpose of influencing legislation. About all this plan 
 accomplished was to make public the names of lobbyists and to 
 inform the public thirty days after the session how much money 
 had been spent. Similar plans were adopted in Maryland and 
 in Wisconsin. Governor La Follette, of the latter state, in 
 1905 recommended that hired lobbyists be forbidden to attempt 
 
 ^See page 222. 
 
 2 Massachusetts Acts and Resolves, 1890, chap. 456.
 
 2i6 STATE AND MUNICIPAL GOVERNMENT 
 
 personally and directly to influence any member of the legisla- 
 ture.^ This drastic measure, however, was not adopted. Lob- 
 bies are still maintained in the legislatures of most of the states, 
 but of recent years public opinion has prevented some of their 
 most shameless actions. 
 [Legislative In 1901 the legislative reference department of the Wisconsin 
 Bureau] Library Commission was established.- One of the purposes of 
 this department was to give the legislator the information which 
 the lobbyist had frequently furnished him. When it is remem- 
 bered that most members of the state legislature are politicians 
 but not experts in lawmaking, it can be seen that dependence 
 on some outside source is necessary. This outside aid was fre- 
 quently given by the lobbyist, who not only prepared measures 
 in which his employers were interested but sometimes, as a 
 means of winning the favor of a legislator, drafted a bill in 
 which the latter was interested. The lobbyist at his best was a 
 trained expert, the legislator an honest but uninformed person 
 attempting the complicated process of legislation. The legis- 
 lative reference bureau, particularly in Wisconsin, gathers in- 
 formation on any subject which the individual legislator 
 desires. This is done by clerks and experts who keep files of 
 the statutes of other states and the laws of other countries. 
 The bureau goes so far as to prepare arguments in favor of the 
 proposed legislation. In other words, it places at the disposal 
 of the legislator the information on which to base not simply 
 the introduction of his bill but the arguments necessary for 
 its passage. In addition to this service the bureau keeps an 
 elaborate file of statutes and information, carefully indexed 
 and digested. INIany states have established legislative refer- 
 ence bureaus, but in few has their work been expanded as 
 in Wisconsin. Generally their activity involves little more 
 than bill-drafting (which will be discussed later), or at most 
 
 ^His messaKc to the legislature is to be found in P. S. Reinsch, 
 Readings on American State Government, pp. 81-84. 
 
 ■^For a description of the work of this department see an article by 
 Charles McCarthy in the Bulletins of the Wisconsin Legislative Reference 
 Department, iqo8. This is reprinted in P. S. Reinsch, Readings on 
 American State Government, pp. 63-74.
 
 THE LEGISLATURE AT WORK 217 
 
 the examination of bills and amendments in order to avoid 
 repetitions and unconstitutionalities and to insure consistency 
 with existing legislation/ 
 
 Drafting bills is a difficult and technical task. The average (3) in what 
 legislator is generally unable to draft a bill which will success- uwshaiibe 
 fully express his ideas, and as a result the statute books are [Biu- 
 full of hastily and ill-drawn measures which do not express the Bureau] 
 intention of the author. In addition to the difficulty of making 
 the bill express the author's desire, care must be taken that it 
 is in harmony with previous legislation. In some states there is 
 a special drafting bureau w'hose function it is to put the ideas 
 of the legislator in correct form and in harmony with previous 
 legislation. In some states this is almost the sole function of 
 the legislative reference bureau. Even in the states where such 
 aid is given, the legislators are slow to take advantage of it. 
 
 The amount of business considered by the state legislatures (4) By what 
 
 , , process the 
 
 is enormous. In the five years from 1899 to 1904 the total lawshaiibe 
 number of acts passed by American state legislatures was ^e^*jgj^^i^g 
 4i;,i;i;2.- In the single year 191 5 fortv-seven states adopted procedure: 
 16,222 acts and resolves.^ In the twelve largest states more business 
 than 22,000 measures were introduced.^ Professor Orth^ re- 
 ports that one legislature which sat for one hundred and thirty- 
 two days passed 448 general laws, 328 local laws, and 62 
 joint resolutions. One half of these, however, were passed dur- 
 ing the last fifteen days. On the last day 70 general laws, 17 
 local laws, and 6 joint resolutions were passed ; on next to the 
 last day, 59 general laws, 20 local laws, and i joint resolution, 
 or a total of 173 enactments in two days. Since the legis- 
 lature sat only twelve hours each day, each of these meas- 
 ures was passed at the rate of one every eight minutes. During 
 
 iSee American Political Science Review, Vol. X, p. no, for a descrip- 
 tion of the bureaus then existing. 
 
 2 P. S. Reinsch, American Legislatures and Legislative Methods, p. 300. 
 
 3 A. N. Holcombe, State Government in the United States, p. 24Q, 
 quoting the Report of the Committee on Noteworthy Changes in Statute 
 Law to the American Bar Association (1915), p. 57. 
 
 4 A. N. Holcombe, State Government in the United States, p. 249, 
 quoting the official Index to State Legislation, Vol. I, 1915. 
 
 5"0ur State Legislature," in Atlantic Monthly, Vol. XCIV, pp. 728ff.
 
 2i8 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) Classi- 
 fication of 
 business 
 
 (3) Order of 
 business 
 
 (4 1 Limita- 
 tions on 
 debate 
 
 Steps in 
 legislation : 
 
 (1) Intro- 
 duction 
 
 the last night of the session of the New York Assembly in 192 1, 
 laws were passed at the rate of two a minute. Similar statis- 
 tics might be made for the last days of the legislatures whose 
 sessions are limited by the state constitutions, and even in those 
 states with unlimited sessions the last days are hurried. This 
 volume of legislation requires special rules and procedure to 
 regulate and facilitate consideration and passage. 
 
 All measures are classified and referred to the appropriate 
 committees for consideration. This classification, as well as 
 the number of committees, varies in different states, but the 
 general rule prevails in all states that no measure will be con- 
 sidered by the house until examined by a special or standing 
 committee. 
 
 In all legislatures the order of business is prescribed by the 
 rules. In some states the rules are extremely simple, and the 
 procedure is determined by the order in which the committees 
 reports. In other states special committees receive special 
 privileges and are given priority in making their reports. This 
 is true of the committees recommending appropriations and of 
 conference committees. In some states the committee on rules 
 may alter the standing orders and determine the succession in 
 which the committees may report. 
 
 All state legislatures limit the freedom of debate. These 
 limitations may be concerned with the number of times or the 
 length of time a member may speak, and debate may be cut off 
 entirely in the case of certain motions like the motion to ad- 
 journ. In some legislatures, as in Congress, a motion may be 
 passed cutting off the debate on any question. This is known 
 as the "previous question" and forces the legislature to vote 
 at once upon the main question before it without further debate 
 or consideration. 
 
 The actual procedure of state legislation varies greatly in 
 the individual states, but it generally has certain common 
 characteristics.^ The first step is the introduction. In theory 
 the member introducing a measure must gain the recognition 
 of the speaker and the bill must be read by title. Practically, 
 
 iSec P. S. Reinsch, American Legislatures and Legislative Methods, 
 chap. vi.
 
 THE LEGISLATURE AT WORK 219 
 
 however, in many legislatures, a bill is introduced by the simple 
 process of dropping it into a box, indorsed with the name of 
 the member introducing it. The introduction of the measure 
 and the reading by title is known as the first reading. In some 
 states the second reading follows immediately after the first (2) First 
 reading. In others, by the state constitution, this must take ^^^ '°^ 
 place upon a later day. Upon the second reading the bill is (3) second 
 
 . . r • 1 • rr-u- reading 
 
 referred to the appropriate committee for consideration. Inis 
 
 is done by the speaker on the basis of the title of the bill. (4) Refer- 
 
 . f ence to a 
 
 As has been pointed out, however, the speakers sometimes reier committee 
 bills which they wish to suppress to committees they can easily 
 control. Bills involving the program of the organization are 
 always taken care of by organization committees. 
 
 In the majority of the states the committees may do what (5) consid- 
 they wish to the bills referred to them for consideration. They by the 
 may kill them, amend them, hold public hearings upon them, committee 
 or discuss them in private. In Massachusetts, however, they 
 must report a decision recommending some action, even that 
 the bill should not pass.^ 
 
 The next stage is the report of the committee. Not all states (6) Report 
 compel such a report, but where it is made, it is usually with committee 
 the recommendation that the bill be passed or that the bill be 
 not passed, with or without amendments. In the report stage 
 a motion may be made to recommit the bill to the committee. 
 This may be with instructions to alter it, or it may mean a 
 simple and painless death for the measure. 
 
 The bill is then ordered to be engrossed. This means that a (7) Third 
 
 , . , ... reading 
 
 fair copy of the bill is made, great care being taken that it is 
 in the exact form in which it was accepted by the house and 
 that it incorporates the various amendments. The process of 
 engrossing is usually carried on by clerks, supervised, however, 
 by the committee on engrossing bills. When that is done the 
 bill is reported to the house and read the third time and, if 
 accepted, is declared passed. 
 
 After being passed by one house it is sent to the other, where (8) consid- 
 
 _.,,.,,. 11 eration by 
 
 substantially the same steps are taken. If the bill is amended the other 
 or in any way altered in the second house a conference ^°^^^ 
 
 iSee page 210.
 
 2 20 STATE AND MUNICIPAL GOVERNMENT 
 
 (9) Enroll- 
 ing 
 
 (10) Approv- 
 al of the 
 executive 
 
 Financial 
 legislation 
 
 Influence of 
 the organi- 
 zation in 
 legislative 
 procedure : 
 
 committee is usually appointed to bring about a compromise 
 between the two legislative branches, and its work is submitted 
 to each house for acceptance. 
 
 When the bill is finally passed by both houses it is sent to 
 the committee on enrolled bills, which supervises the making 
 of the final copy. This is signed by the presiding officers of 
 each house. The enrolled bill, so signed, is then sent to the 
 governor for his approval. If he approves the bill he signs it, 
 and it is deposited with the secretary of state, while the house 
 in which it originated is informed of the governor's act by a 
 message. If the governor disapproves of the bill, he returns it 
 to the house of its origin with a message stating the reason 
 for his disapproval.^ 
 
 The foregoing process is a composite description of the pro- 
 cedure for ordinary laws generally followed in state legislatures. 
 It does not apply, however, to financial legislation. In most 
 states there are special provisions and special forms of proce- 
 dure devised to insure adequate publicity and sufficient care in 
 the matter of appropriations. For the most part a single com- 
 mittee may be given charge of the general appropriation bills, 
 although other committees may report laws requiring appro- 
 priations, and private members may by amendments increase 
 the amounts appropriated. The whole subject of state finance 
 will be treated at length in a separate chapter. 
 
 It must not be supposed that the process of legislation is 
 carried on without direction. Leadership and direction there 
 must be; and in some states, where the rules do not pro- 
 vide for setting up an all-powerful speaker and committee on 
 rules, leadership depends more upon personal merit and in- 
 fluence of certain members. In all states, however, no matter 
 how loose the organization of the legislature, there is a group 
 of leaders who exercise real authority. Practically, this group 
 always includes the speaker, who, if not the real leader of the 
 house, is the agent of the organization. In some states the 
 organization has degenerated at times into an instrument for 
 corruption and may be controlled by one or both of the 
 
 ^See governor's veto, pp. 136-139.
 
 THE LEGISLATURE AT WORK 221 
 
 machines of the political parties.^ But it is not necessary to 
 assume that all organizations are corrupt. Indeed, the reverse 
 is true. However, a study of the corrupt conditions existing 
 at various times in some state legislatures will perhaps clearly 
 show the extent of the power of the organization and the danger 
 of the misuse of this power. 
 
 As has been pointed out, the committees in all state legisla- d) control 
 . tures are appointed by the speaker, who, himself, is a product mittees™ 
 of the organization and who constitutes the committees so that 
 they may do his bidding. It is not necessary that the entire 
 committee should be composed of organization members. In 
 many states it is enough that the chairman should be suscep- 
 tible to such influence, inasmuch as he may prevent action by 
 failing to summon a committee meeting.- 
 
 In general, this control is exercised by the speaker through (2) control 
 his prerogatives of recognition and decision of points of order, procedure 
 In some legislatures, however, the committee on rules or an legislature 
 informal steering committee determines in advance what meas- 
 ures shall be taken up and at what time votes shall be taken. 
 In very rare cases speakers have been known to "gavel" 
 through a measure; that is, to declare a measure passed on 
 which the vote was dubious. 
 
 The individual members of the legislature are quite at the (3) influence 
 mercy of the organization. Their careers may be made or individual 
 marred. Since the speaker has the power of appointment and "^^g^"^® 
 recognition he can pretty successfully prevent his opponents legislature 
 from obtaining consideration for the measures in which they 
 are interested, and thus destroy their legislative usefulness. 
 By the same means he may reward his supporters and enable 
 them to satisfy the desires of their constituents. 
 
 ^See P. S. Reinsch, American Legislatures and Legislative Methods, 
 chap, viii, "The Perversion of Legislative Action." This is an impartial 
 and judicial account of what has been and may be accomplished through 
 the prostitution of the organization of the legislature. Between 1Q03 and 
 1910 there were numerous articles written describing the perverted action 
 of the legislatures, which are commonly grouped under the name of 
 "muckraking" literature. 
 
 -In order to limit this power of the chairman some states allow 50 per 
 cent of the members of a committee to call a meeting.
 
 222 STATE AND MUNICIPAL GOVERNMENT 
 
 Perversion 
 of legisla- 
 tive action 
 
 Effect of 
 
 legislative 
 
 perversion 
 
 As Professor Reinsch has clearly pointed out/ economic 
 interests, beginning with the railroads, desired special legisla- 
 tive favors. To obtain these they made special appeals to the 
 individual legislators. Some of these appeals were entirely 
 proper, but in other cases bribery and corruption were resorted 
 to. It was found necessary to maintain legislative agents (or 
 the lobby) at the legislature to obtain what they considered 
 was proper legislation and to prevent what might be harmful. 
 At a later stage interested parties utilized the powers of the 
 organization just described. Still later, the leader or boss of 
 the party machine was appealed to by the interested groups, 
 and through party control obtained satisfaction for these 
 groups or prevented injury to them.- When this stage was 
 reached the organization of the legislature might more properly 
 be denominated the machine. 
 
 The effect of this perversion of legislative action was two- 
 fold : it removed the government from popular control and 
 vested it in "the invisible government" (that is, the boss and 
 the machine). Doubtless many interests obtained the desired 
 legislation, but the methods by which their desires were accom- 
 plished taught the legislators the possibility of using these 
 methods against the interests themselves. As a result (as in- 
 vestigations in some states have disclosed) individual legislators 
 introduced ''strike" bills — that is, bills dangerous to certain 
 corporations — in expectation that the corporations would buy 
 them off. Proper legislation was opposed until the individual 
 legislator was satisfied by some favor or bribe. Blackmail of 
 this sort not only debauched the legislature but compelled the 
 corporations to keep constantly on hand legislative agents 
 well supplied with means for the purpose of preventing such 
 procedure. This was the lobby at its worst. 
 
 The legislature performs another function besides the mak- 
 
 amendments ^^K of laws ; namely, the framing of proposed amendments to 
 
 the state constitution. Most state constitutions are subject to 
 
 amendment by the joint action of one or more state legislatures 
 
 ratified by the people.'' The process of framing and passing 
 
 ' American LcKisIaturcs and Legislative Methods, chap. viii. 
 
 2 See Autobiography of Thomas C. Piatt. ^Sec page 31. 
 
 Constitu- 
 tional
 
 THE LEGISLATURE AT WORK 223 
 
 these proposed amendments through the legislature is much 
 the same as the passage of ordinary legislation. A committee 
 considers the proposition and frames the amendment. It is 
 reported to the legislature and enacted like an ordinary bill. 
 Most states, however, require for passage an extraordinary 
 majority in both houses. 
 
 Although the product of the state legislature is prodigious in The 
 volume its quality does not satisfy the electorate. Proof of this p^roduct'^^ 
 statement may be seen in the increasing minuteness with which '*™'*^^^ 
 state constitutions limit the functions of the legislature. Not 
 only have legislatures been excluded from whole fields of legis- 
 lation, but state constitutions prescribe with growing exactness 
 the method and procedure by which laws shall be adopted.^ 
 This is particularly true in finance. In addition, some state 
 constitutions attempt through mandatory provisions to compel 
 the legislature to pass certain laws. This has proved futile. 
 In despair the electorate has sought relief in two ways : first, d) By con- 
 by legislating in the state constitutions. A glance at some of 
 the more recent state constitutions will at once reveal the extent 
 to which what is nominally a framework has become a code of 
 laws. In particular this is true with regard to the laws relating 
 to corporations. Second, the electorate is using with increasing (2) By 
 frequency direct legislation, or the initiative and referendum, legislation 
 
 The process of direct legislation has already been described, Effect of 
 but its effect upon the legislature should be considered. Through- tive'and^* 
 out the discussion a distinction must be made between the referendum 
 
 on the 
 
 optional and the compulsory referendum. The compulsory legislature 
 referendum is where the legislature submits a bill for approval 
 without waiting for action by the electorate. This unques- 
 tionably has the effect of lowering the sense of the responsi- 
 bility which the legislature should maintain. It enables the 
 legislators to dodge the issue and to curry favor on all sides. 
 This type of referendum, however, should be sharply distin- 
 guished from that which submits the application of a law to 
 the electorate of a locality. The latter is a form of local 
 government. The optional referendum, however, is invoked 
 only upon questions on which a substantial number of the 
 
 ^See page 27.
 
 2 24 STATE AND MUNICIPAL GOVERNMENT 
 
 electorate differ from the decision of the legislature. It is in 
 the nature of a corrective ; but since the legislature has already 
 passed the law, and the individual legislators have gone on the 
 record as opposing or favoring it, one cannot see how this type 
 of referendum can diminish the legislator's responsibility. On 
 the contrary, it would seem to bring home in a concrete 
 case his success or failure to satisfy his constituents. It may 
 be that where either type of the referendum is in use the legis- 
 lature will become still more careless in the passage of meas- 
 ures, but evidence is wanting upon this point. The use of the 
 initiative can have little bad effect upon the legislature, since 
 it is an attempt of the electorate to obtain a law which the 
 legislature has refused. It may be, however, that the suc- 
 cessful use of the initiative will weaken the sense of party 
 responsibility, but it has been shown that party voting in the 
 legislature is not as great as is commonly supposed.^ Direct 
 legislation has not lowered the character of the legislative 
 product nor, on the other hand, has it greatly improved it. 
 It can be demonstrated that hardly any law has been adopted 
 by direct legislation for which there was not a precedent in the 
 law of some other state acting through the legislature. At its 
 best direct legislation has been the means of bringing satis- 
 faction to the electorate in cases where the legislature was 
 unresponsive to popular desire.^ 
 
 iSee page 213. 
 
 -See National Municipal Review, Vol. X, pp. 232-23Q, for an addi- 
 tional summary of the use of the initiative and referendum in 1920.
 
 CHAPTER XII 
 
 STATE FINANCE 
 
 State finance is one of the most important and controversial importance 
 subjects in state government. There is hardly an activity in gnance^ 
 which the state is engaged which does not in some way relate 
 to finance. State finance in general includes the revenue, the 
 expenditure, and the debt of the state. A discussion of the 
 revenue involves the system of taxation, with the complex 
 problems of the kinds of taxes to be levied, their assessment, 
 and their collection. State expenditure involves not simply the 
 appropriation of sums of money but the legislative procedure, 
 which in most states is somewhat different from the passage 
 of ordinary laws. The state debt involves not merely the 
 payment of the interest but the provisions for the extinction 
 of the debt and the limitations which most constitutions set 
 to the amount of debt that a state may incur. 
 
 Summary of Revenue Receipts of the Forty-eight States, iqiq^ 
 
 Revenues obtained 
 
 All revenues . . 
 
 Taxes : Property 
 
 Special . . . 
 
 Poll 
 
 Business and nonbusiness licenses . . . 
 
 Special assessments and charges 
 
 Fines, forfeits, and escheats 
 
 Subventions, grants, donations, and pension 
 
 assessments 
 
 Earnings of general departments 
 
 Highway privileges, rents, and interest . . 
 Earnings of public-service enterprises . . . 
 
 Percentage 
 
 50.6 
 2.0 
 
 0-3 
 
 25-3 
 0.7 
 
 0.4 
 
 2-5 
 
 12.3 
 
 54 
 0-5 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 of States (1919), pp. 62, 63. 
 
 225
 
 22 6 STATE AND IMUNICIPAL GOVERNMENT 
 
 Sources 
 of state 
 revenue 
 
 Kinds of 
 taxation : 
 (i) General- 
 property tax 
 
 [The 
 general- 
 property 
 tax unsat- 
 isfactory] 
 
 The State derives its revenue usually from the following 
 sources : ( i ) the sale or utilization of public property, such as 
 lands and canals ; (2) fees; (3) fines and penalties ; (4) taxa- 
 tion — by far the largest amount. The table on page 225 gives 
 the statistics for 19 19 according to the United States Census. 
 
 The general-property tax has always been the chief source 
 of state revenue. This tax is imposed on all property, real 
 and personal, according to the valuation set by local assessors. 
 The state tax itself is usually expressed as a certain number of 
 cents on each dollar of the valuation of the entire property of 
 the state, and is added to the tax collected by the town, county, 
 or city authorities and forwarded to the state treasurer. The 
 determination of what property should be taxed is made by 
 the legislature, and the assessors are furnished with descrip- 
 tive lists covering every conceivable kind of property. Since 
 the amount of the state tax used to be determined by the value 
 of the property in the community, it was to the interest of the 
 local assessors to undervalue the property and thus escape as 
 much of the burden as possible. To prevent this many states 
 appoint boards of equalization, which review the work of the 
 local assessors and raise or lower the valuation of different 
 classes of property in order to make them uniform throughout 
 the state. About 50 per cent of state and local taxes is drawn 
 from the general-property tax. 
 
 As long as the wealth of the community was chiefly agricul- 
 tural or tangible — that is, composed of land, buildings, live 
 stock, and tangible possessions — the general-property tax 
 proved fairly satisfactory, although from the very first there 
 was a tendency on the part of both the property owners and 
 the assessors to undervalue property. This was recognized in 
 some states, and instead of attempting to tax the property 
 at its actual valuation the assessors were directed to tax it 
 at a fraction of its actual value. When the communities 
 began to develop an industrial life large amounts of wealth 
 ceased to be in tangible form and were held in the form of 
 securities, mortgages, stocks, bonds, and notes. Since these 
 could be concealed from the eyes of the assessor, a great deal 
 escaped taxation. Property holders were expected to make
 
 STATE FINANCE 227 
 
 declaration under oath of all their property, both tangible and 
 intangible; but the penalties for failure to do this were not 
 sufficient to compel such a declaration, and much of the in- 
 tangible property actually escaped taxation, so that a lax spirit 
 developed which condoned the making of false returns. The 
 result of this was twofold. Tangible property bore more than 
 its just share of taxation, while intangible property in the hands 
 of dishonest holders escaped taxation and that which was 
 honestly declared was so heavily taxed that its income was 
 seriously impaired. In the attempt to remedy this many states, 
 sometimes by constitutional amendment, resorted to classifica- 
 tions of one sort or another. Real estate and tangible property 
 were taxed at one rate, intangible property at another and far 
 lower rate. It was by offering a lower rate of taxation that 
 many holders of intangible property, which had escaped the 
 higher rates applied to tangible property, were willing to bear 
 the tax. 
 
 Another method of taxing intangible property was to tax (2) income 
 not the property itself but the income from the property. The 
 taxation of incomes has been common in England for a long 
 time. In Massachusetts professional incomes derived from 
 salaries and wages have been taxed since colonial days. Since 
 the adoption of the federal income tax in 19 13, however, more 
 and more states have adopted this method of supplementing 
 the general-property tax. The modern income tax, in contra- 
 distinction to the old Massachusetts income tax, is applied to 
 incomes derived from all sources, whether salaries, wages, or 
 incomes from business or from securities. In making this appli- 
 cation, however, some states classify the incomes derived from 
 the different sources and tax them at different rates. Thus, in 
 Massachusetts the income derived from salaries, wages, and an- 
 nuities is taxed at li per cent ; from gains, at 3 per cent ; from 
 interest and dividends, at 6 per cent.^ In all these systems there 
 is some exemption allowed to everyone, and generally additional 
 exemptions to married people, with still further allowances on 
 
 iFor a description of the Wisconsin income tax of 1911 see American 
 Political Science Quarterly, Vol. XXVIII, p. 569; for the New York 
 income tax of 1919 see ibid. Vol. XXXIV, p. 521.
 
 ance taxes 
 
 228 STATE AND MUNICIPAL GOVERNMENT 
 
 account of children or dependents. Each taxpayer receives a 
 blank on which he is obliged to state under oath the income 
 which he has received from the different sources. The op- 
 portunity for evasion and for making false returns is still 
 present, but the revenue officials in most states examine very 
 carefully such returns and in some instances check them up 
 by the information given by employers regarding salaries and 
 wages paid and by the lists of stockholders from corporations. 
 
 (31 Inherit- The irJieritance tax has been used as a source of state 
 revenue since about 1890 and is now found in almost all the 
 states. Originally the rates were not particularly high, but the 
 tendency has been to increase them.^ Moreover, the progres- 
 sive principle of increasing the rates as the amount of inherit- 
 ance increases is more generally employed. Rates also are 
 made to depend upon the nearness of the relationship of the 
 legatee or devisee to the testator. One of the chief arguments 
 in favor of the inheritance tax is the ease with which it is col- 
 lected. Property acquired by inheritance goes through the 
 probate courts and thus its possession cannot be concealed. 
 The estate tax levied by the federal government interferes 
 with this source of revenue, which was formerly the peculiar 
 field of state taxation. 
 
 (4) Corpora- One of the most popular methods of raising money is the 
 tax upon corporations. This is levied in various forms — as 
 a tax upon the property of the corporation, or as a license for 
 doing business based upon the amount of business, or upon 
 the income of the corporation. Although very popular with 
 the legislators, the equitable administration of this tax is 
 difficult. It is comparatively simple to tax a manufacturing 
 corporation on almost any basis, but it is extremely difficult 
 to devise a proper tax for public-service corporations. Only 
 a part of the property of a corporation is tangible. This 
 would include the stations and equipment of a railroad, or 
 the motors of an express company, or the wire and poles 
 and stations of an electric-light company. But these tangible 
 pieces of property constitute the smallest part of the assets 
 
 iln iQiQ Massachusetts increased by 25 per cent the taxes on succes- 
 sions and legacies. 
 
 tion taxes
 
 STATE FINANCE 229 
 
 of the corporation. What is most valuable is the right or the 
 franchise to do business. How should this be taxed ? In some 
 states it is taxed on the basis of the gross returns of the entire 
 business, in some on the basis of the net returns; in others 
 the company is taxed upon its capital as representing the value 
 placed by the incorporators upon their entire property, in- 
 cluding the franchise. Closely connected with the taxation of 
 public-service corporations is the economic effect such taxation 
 has upon the rates which these corporations are allowed to 
 charge and upon the services which they render. Legislators 
 frequently look only to the income from the taxes and forget 
 that the companies must be allowed either to increase their 
 rates or to diminish the quality of their service. In some states 
 special commissions are intrusted with the adjustment of these 
 very complex problems. 
 
 In Pennsylvania, Delaware, and many of the Southern states (5) Business 
 there are special taxes levied upon many sorts of business. Thus, 
 in Georgia, the city of Atlanta is allowed to levy four hundred 
 and sixty-six such special taxes. Business taxes in most of the 
 states, however, are confined to a comparatively few occupations. 
 
 The states may tax all tangible property within their juris- constitu- 
 diction. Intangible property may be taxed by the state which limitations 
 has jurisdiction over either the property or the owner. Thus, "p°° ^"^^ 
 
 ■' f f J ) power of 
 
 intangible property may be subject to taxation by two juris- the state 
 
 to tJiX 
 
 dictions, but this has not been held to be contrary to the prin- 
 ciples of the national Constitution. There is one exception to 
 the principles just stated: states may not tax the property of 
 the national government, whether this be tangible land or 
 buildings or intangible securities owned by individuals. An 
 early decision, moreover, exempted all the instrumentalities of 
 the national government from taxation. This has been inter- 
 preted so that a state may tax an instrumentality of the national 
 government provided it does not interfere with the purpose for 
 which that instrumentality was created.^ Thus, federal corpora- 
 tions are subject to state taxation. By another decision, how- 
 ever, the incomes which citizens of a state derive from the 
 national government are exempt from state taxation. 
 ^National Bank v. Commonwealth, 9 Wall. 353.
 
 230 STATE AND MUNICIPAL GOVERNMENT 
 
 Restrictions 
 in state con- 
 stitutions 
 on the 
 power 
 to tax 
 
 State ex- 
 penditures 
 
 The constitutions of most of the states originally required 
 that all taxation should be uniform. This prevented any classi- 
 fication of property for the purpose of taxation, and rested 
 upon a political theory which emphasized the equality not only 
 of the citizens but of their property. In recent years, however, 
 the tendency has been not to regard all property as equal, but 
 to distinguish it on the basis of its ability to bear the burden 
 of taxation. Thus, some states, by constitutional amendment, 
 have removed the early restrictions and are allowed to classify 
 property for purposes of taxation and to prescribe different 
 and progressive rates for different kinds of property. 
 
 The most striking and alarming feature of state finance is 
 the rapid increase of state expenditures. Not only are the 
 expenditures for the various states rapidly increasing, but they 
 are increasing more rapidly than either their revenues or the 
 assessed valuation of the property. Thus, between 1903 and 
 1913 the total governmental cost payments of the states in- 
 creased from $186,000,000 to $383,000,000, or 106 per cent. 
 In the next two years the expenses increased 28 per cent, and 
 in the next year (191 6) 3 per cent. The expenses of 191 7 
 increased 1.4 per cent over those of 191 6; those of 19 18 in- 
 creased 8.5 per cent over 1917; those of 1919 increased 11.6 
 per cent over 1918. The entrance of the United States into the 
 World War was in part responsible for this increase. 
 
 Detail of An idea of state expenditures may be derived from a sum- 
 
 state ex- <• 1 • 
 
 penditures mary of the prmcipal items of governmental-cost payments 
 
 made by the states in 1918. 
 
 SUMMARY OF GOVERNMENTAL-COST PAYMENTS, 1918 
 
 All governmental costs 
 
 All expenses and interest 
 
 Expenses of general departments . . 
 Expenses of public-service enterprises 
 
 Interest 
 
 Outlays 
 
 Per Capita 
 
 Percbntage 
 
 $6.09 
 
 
 5.42 
 
 
 5.16 
 
 S4.7 
 
 0.02 
 
 00.4 
 
 0.2-5 
 
 :vS 
 
 o.ri.s 
 
 I I.I 
 
 Department of Commerce, Bureau of the Census, Financial Statistics of 
 States (iqiq), pp. 62, 63.
 
 STATE FINANCE 231 
 
 Some of the causes for this growing expenditure are to be causes and 
 found in the higher cost of service and material. But these increased 
 increases would amount to only a fraction of the total increase. ^^^^^^^^^'^^ 
 The enormous growth of state expenditure is indicative of the 
 additional service which the state is attempting to perform and 
 the extension of the sphere of its activities. Not a session goes 
 by in any state legislature when proposals are not made for the 
 extension or improvement of some state service. Every one of 
 these extensions adds to the state expenditure and increases the 
 burden of taxation. The results were alarming and were be- 
 ginning to be appreciated about a decade ago. State executives 
 and legislatures despaired of limiting or decreasing the activi- 
 ties of the state — the whole tendency of the times was toward 
 still further expansion. The problem was thus a twofold one: 
 to increase the sources of revenue, and for this end the taxes 
 just described were introduced ; secondly, to discover some 
 more efficient and economical method of administrating the 
 state finances. With this in view many states appointed com- 
 missions of efficiency and economy and reorganized their 
 administrative departments. In addition the majority of the 
 states have revised their method of financial legislation and 
 have introduced the so-called budget system. 
 
 Until very recently the chief characteristics of financial legis- Financial 
 lation in the states were confusion and absence of responsibility. ^^'^ 
 Some improvement has been made, but with the exception of 
 a very few states financial legislation is still in an unfortunate 
 condition. The traditional method by which finance was 
 handled was to raise the revenues by means of general laws 
 which remained in force from year to year. The appropriations 
 of each session were added together and a rate fixed upon the 
 taxable property which would produce sufficient revenue to 
 cover the appropriations. In many states the general appro- 
 priations were made by a committee known as the ways and 
 means or finance committee, but these appropriations rarely 
 included all the expenditures of the state, for other committees 
 were allowed to initiate projects requiring financial support, 
 and there was no restriction upon the individual legislator 
 which prevented him from proposing an increase to the amount
 
 232 STATE AND MUNICIPAL GOVERNMENT 
 
 recommended by the appropriating committee. Moreover, in 
 those states where the governor could utilize his veto power 
 after the session of the legislature had terminated, there was 
 no means of knowing how much money had actually been ap- 
 propriated. State finance was hit or miss. There was no 
 scientific budget, and no one was held responsible for the 
 preparation of one. 
 state bud- About forty states have adopted some form of budget sys- 
 get systems ^^^i ^ budget has been defined as a plan for financing the 
 government during a definite period, prepared by a responsi- 
 ble executive and submitted by him to a representative body 
 whose approval and authorization are necessary before the 
 plan may be executed. A proper budget should therefore 
 present an estimate of the revenue and the proposals for the 
 expenditures of this revenue. It should also furnish some 
 method of comparison with the revenues and expenditures of 
 previous years. A budget is thus essential if there is to be a 
 favorable balance in the financial operations of the state. But 
 a budget may be even more than this : it may propose a definite 
 scheme or plan of governmental activities and thus become a 
 program as well as a financial statement. 
 Types of In general, the different systems of state budgets may be 
 
 budgets classified into four types with reference to the location of 
 the responsibility for their initiation:- (i) The executive 
 
 iThe material on the budget system is voluminous. A good idea of 
 the principles of the system and its present working may be obtained 
 from the following sources: Frederick A. Cleveland, "Evolution of the 
 Budget Idea in the United States," in the Annals of the American Acad- 
 emy of Political and Social Science, Vol. LXII, pp. 15-35. Also, by the 
 same author, " Constitutional Provision for a Budget," in Proceedings of 
 the Academy of Political Science, Vol. V, No. 1, pp. 141-189; Bulletin 
 No. 2, of the Bulletins for the Massachusetts Constitutional Convention, 
 Vol. I, presents a very clear statement of the principles, the discussions 
 of the chief types, with the texts of typical laws and amendments. 
 A. E. Buck, in the National Municipal Revie'd', Vol. VIII, pp. 422-435, 
 discusses the present status of the executive budgets in the state govern- 
 ments. The annual volumes of the American Year Book chronicle the 
 adoption and uive a brief description of the various systems. See also 
 VV. F. Wiiloughby, The Movement for Budgetary Reform in the States. 
 
 '•'See A. E. Buck, in the National Municipal Review, Vol. VIII, 
 pp. 422-435-
 
 STATE FINANCE 233 
 
 budget. In this type the governor is made responsible for the 
 formulation of the budget. More than twenty states have 
 adopted this system. (2) The administrative-board budget. 
 In this a group of administrative officers, which usually includes 
 the governor, prepares the budget. In 19 19 about nine states 
 followed this plan. In the majority the governor was given 
 the power to appoint the members of the board. (3) The 
 administrative-legislative board budget. Here the preparation 
 of the budget is intrusted to a committee composed of both 
 administrative officers and members of the legislature. Six 
 states followed this method in 19 19, and in every case the 
 governor was a member of the board. (4) The legislative- 
 type budget. In this the budget is prepared by a legislative 
 committee. In 19 19 this was followed by two states only — 
 Arkansas and New York. 
 
 As may be seen from the foregoing, the executive budget The execu- 
 is the more popular among the states, and the tendency is '^ ^ 
 toward this type. In addition there is a distinct movement to 
 increase the power of the executive in the preparation of the 
 budget and to diminish the power of the legislature in its 
 alterations. This is carried to its logical conclusion in INIary- 
 land and Utah, where the action of the legislature is limited. 
 In Maryland the legislature may increase or decrease the items 
 relating to the general assembly and judiciary, but it is pro- 
 hibited from amending the budget in those items relating to 
 public-school funds or constitutional obligations and is allowed 
 to decrease but not to increase other items. In Utah the 
 legislature may strike out or reduce items, provided public-debt 
 obligations and the salaries of the public officers during their 
 term of office are not reduced. 
 
 More state laws prescribe a certain form in which the budget Preparation 
 should be prepared, although sometimes this is left to the budget 
 governor. The common procedure is for the different depart- 
 ments desiring appropriations to fill out blanks provided either 
 by law or under the direction of the governor stating the 
 amounts and the purposes for which they are asked and show- 
 ing a comparison with one or more previous years. This 
 involves considerable classification.
 
 234 STATE AND MUNICIPAL GOVERNMENT 
 
 Review and 
 revision of 
 estimates 
 
 Form and 
 contents of 
 the budget 
 
 Date of 
 submitting 
 the budget 
 to the 
 legislature 
 
 Other 
 
 provisions 
 concerning 
 the budget 
 
 Effect 
 of state 
 executive 
 budgets 
 
 All but one^ of the executive budget laws provide for a 
 review of the estimates by the governor. In the majority of 
 the states the governor may revise these estimates, and in many 
 states he may hold investigations in order to determine the 
 need for the requests. 
 
 The form and contents of the budget are provided for either 
 by constitutional amendment or by statute. The Maryland 
 budget amendment of 191 6 was the first to make detailed 
 provision along this line. It provides not only for a ''govern- 
 mental appropriations" budget, which shall include all appro- 
 priations necessary for the operation of the government, and 
 a ''general appropriations" budget, which shall include all other 
 estimates, but each of these budgets must contain a complete 
 plan of the proposed expenditures and estimated revenues, 
 with the estimated surplus or deficit. In addition the budget 
 must be accompanied by a statement showing the revenues and 
 expenditures for each of the two preceding years, a balance 
 sheet, a statement of debts and funds, an estimate of the state's 
 financial condition, and explanations by the governor. 
 
 There are many variations in the different states concerning 
 the date at which the budget should be submitted. The general 
 purpose is to have it in the hands of the legislature in the early 
 days of the session. 
 
 The general tendency of budget legislation and amendment 
 is to require that all appropriations should be in the form of 
 one consolidated appropriation bill. In Maryland, Utah, and 
 Nevada the power of the legislature to increase the estimates 
 in the budget is strictly limited. In a number of other states 
 the legislature may increase or decrease the items but may 
 not make any further appropriations until the general bill has 
 been passed. 
 
 It is still too early to generalize concerning the effect of the 
 system just described, since, in the majority of states, it has 
 not been in operation long enough to give sufficiently accurate 
 data on which to base conditions. If, however, the opinions 
 of the governors of the states adopting this method may be 
 taken as conclusive, the budget system has been a great success. 
 
 1 Iowa.
 
 STATE FINANCE 235 
 
 It has tended to simplify financial legislation, has made for 
 economy, and has fixed very definitely the responsibility upon 
 the governor. 
 
 Since the state expenditures are increasing more rapidly than state debt 
 the revenue, all the states resort to borrowing money and all 
 the states incur debts. The total of the gross debt for all the 
 states in 1919 was $744,382,933, or $7.08 per capita. New 
 York led the states with a total debt of more than $238,000,000, 
 but Massachusetts with more than $133,000,000 had the 
 greatest per capita debt, $34.77.^ New Jersey and Nebraska 
 had the smallest per capita debts, standing at four cents and 
 sixteen cents, respectively. These debts may be classified as 
 (i) funded, that is, money borrowed on the security of bonds 
 sold to the public; (2) floating, for which there is no cash in 
 the treasury or other assets specifically provided; and (3) the 
 current debt, for the redemption of which provision is fully 
 made by cash on hand or revenues levied but uncollected. 
 
 All states are prohibited from incurring a debt for anything constitu- 
 but a public purpose. What a public purpose is may be deter- tations on*" 
 mined in each particular case on the basis of a taxpayer's suit.^ debtedness • 
 In general, while money may be raised by taxation or obtained (0 Purpose 
 through borrowing for the establishment of public works or the debt 
 the relief of the poor, for educational purposes, and for pen- incurred 
 sions and bounties, it may not be borrowed and appropriated 
 for the purpose of improving or aiding individuals.^ In addi- 
 tion to this general constitutional restriction, the constitutions 
 of the different states make other limitations. Many states (2) Debt 
 prohibit the legislature from creating any state debt, but imme- 
 diately thereafter enumerate exceptions ; for example, Georgia 
 and Texas prohibit the creation of any debt except to pay 
 the existing debt. Other states, like Illinois, Iowa, and New 
 Mexico, limit the incurring of debt except to repel invasion, 
 
 iSee Department of Commerce, Bureau of the Census, Financial 
 Statistics of States (1919), p. 112. 
 
 -This is an action brought by a taxpayer to test the validity of the 
 laws levying the tax assessed against him. 
 
 3See Emlin McCiain, Constitutional Law of the United States, 
 pp. 124-127, with cases.
 
 2 36 STATE AND MUNICIPAL GOVERNMENT 
 
 to suppress insurrection, or to defend the state in war. In 
 addition to these Hmitations of purpose, most states provide 
 
 [Debt limitations in amount. These Hmitations, known as the debt 
 
 limit, may be in the nature either of a specific sum or of a 
 percentage of the assessed value of taxable property. Only 
 three of the forty-eight states have no debt limits of any sort. 
 
 Payment of By far the greater portion of the debts of the state are 
 funded; that is, secured by bonds held by the public. Origi- 
 nally there were no provisions made for the payment of these 
 bonds at their maturity. Few states had the courage or the 
 resources to levy taxes in any current year so far in excess 
 of the expenses as to enable them to redeem the bonds which 
 fell due. They therefore resorted to the practice of issuing and 
 selling fresh bonds to pay the obligations of the preceding issue. 
 In this way, although the interest charges might possibly be 
 diminished in the subsequent issues, the amount of the state 
 debt did not decrease. Two methods are now in vogue for the 
 extinction of bond issues. 
 
 (i) The The sinking-fund system provides for the annual appropria- 
 
 sinking . . , . , . . r-r- i 
 
 fund tions ot money which is invested and which, at compound 
 
 interest, is expected to be sufficient to extinguish a debt at its 
 maturity. Theoretically there is little objection to this system, 
 and perhaps it may be somewhat less expensive than the sys- 
 tem later to be described, but there are very strong practical 
 objections which the experiences of many states have shown to 
 outweigh any theoretical advantage. In the first place, the 
 annual appropriation may possibly not be made because of 
 unforeseen expenses or demands upon the resources of the state. 
 Once let the legislature omit a single appropriation and it be- 
 comes increasingly difficult for subsequent legislatures to make 
 up the deficit. Secondly, the money so appropriated is cared 
 for by the state treasurer, the sinking-fund commissioner, or 
 some board who invests the money. It is true that most states 
 restrict and limit the free discretion of the sinking-fund com- 
 missions. Nevertheless, even within these limits, there is too 
 often an opportunity for making bad investments. Moreover, 
 since the states borrow money for terms of twenty, thirty, or 
 even fifty years, an entire generation may lapse before the fund
 
 STATE FINANCE 237 
 
 is called upon to make its payment. This length of time has 
 occasionally given a sense of security to commissioners which 
 they have grossly misused. Thus, it has happened that in case 
 after case an issue of bonds for which an adequate sinking 
 fund was provided by law cannot be retired on its maturity 
 because the fund is not sufficient to fulfill that purpose. 
 
 The more modern way of managing a state debt is by the (2) serial 
 issuance of serial bonds. A certain proportion of these bonds 
 mature annually, biennially, or at any period the legislature 
 sees fit to determine. The state is thus called upon to pay a 
 constantly decreasing amount for interest. But more important 
 than that, the state is compelled every year or at certain periods 
 to raise by taxation a sufficient sum to redeem the quota of 
 bonds due at that date. Thus, at the end of the period for 
 which the debt has been incurred the entire issue has been 
 redeemed. Should the legislature fail to appropriate the money 
 to redeem the bonds due at any particular date the credit of 
 the state would suffer immediately. In the case of failure to 
 appropriate for the sinking fund the injury to the credit of 
 the state is more remote. This method has none of the dis- 
 advantages of the sinking-fund system, but it does require 
 each legislature to appropriate a sum and thus raise a larger 
 annual appropriation than is necessary under the sinking-fund 
 system. The sinking fund gains by compound interest ; the 
 serial plan gains by saving interest which the state has to pay 
 on the entire issue. As has been said, there is very little 
 difference in the actual expense. Experience, however, shows 
 that there is very great saving in practice.
 
 CHAPTER XIII 
 
 THE LEGAL SYSTEM OF THE STATES 
 I. Sources of State Law 
 
 Importance State laws are more important to the average citizen in his 
 ^^s ^ daily life than federal laws. According to the original con- 
 ception of the Federal Constitution, in the minds of the framers 
 the national government was given the power to legislate con- 
 cerning affairs which affected the nation as a whole, but the 
 control of the individual in politics, in business, and in his 
 domestic relations was left to the states. Interpretation and 
 construction by legislative and executive authority, by party or- 
 ganizations and by public opinion, and especially legal changes 
 like the Fourteenth and Fifteenth Amendments have greatly 
 extended the sphere of action and increased the power of the 
 federal government. Yet it may safely be asserted that the ma- 
 jority of the ordinary everyday concerns of a citizen are deter- 
 mined by state rather than by federal law. This is more clearly 
 understood when it is remembered that the states and not Con- 
 gress possess the police power. By the police power is meant the 
 power to regulate the health, morals, convenience, and general 
 welfare of the citizens. It is true that the interstate commerce 
 acts and the regulations of the Federal Trade Commission have 
 apparently encroached upon this field of state control, but the 
 authority of Congress in this sphere is only incidental to some 
 specific power granted to Congress, like the power to regulate 
 commerce or to levy taxes. Congress may not directly prohibit 
 child labor; the states may. Congress may not legislate con- 
 cerning the morals of the citizens of the state except through 
 interstate commerce or taxation ; the states may make an 
 immoral action a crime. This is but another way of saying 
 that practically all criminal law is state law, not national. 
 The property of the citizen is determined and protected by 
 
 238
 
 THE LEGAL SYSTEM OF THE STATES 239 
 
 state, not federal, law. It is true that the Fourteenth Amend- 
 ment prohibits a state from depriving a citizen of his property 
 without due process of law, and that this gives the Supreme 
 Court of the United States the power to review state legisla- 
 tion; but it does not mean that Congress may legislate to 
 protect the property of a citizen, except against taking without 
 due process or contrary to the procedure, forms, and spirit of 
 American law. In the same way the life and liberty of a citi- 
 zen depend upon state, not upon federal, legislation, although, 
 under the Fourteenth Amendment, the Supreme Court may- 
 review such state legislation in order to see that it does not 
 take away due process of law. Thus the court has said, "It 
 [the Fourteenth Amendment] does not invest Congress with 
 power to legislate upon subjects which are within the domain 
 of state legislation ; but to provide modes of relief against 
 state legislation, or state action. . . ."^ Moreover, it should be 
 remembered that the political activities of the citizens are 
 determined by state, not federal, law. The Constitution guar- 
 antees to every state a republican form of government and 
 prohibits any state from disfranchising a citizen of the United 
 States on account of race, color, previous condition of servi- 
 tude, or sex. Beyond this the state determines who shall take 
 part in the government and what the form of government shall 
 be, and makes the laws upon which the life, liberty, property, 
 and welfare of its citizens depend. 
 
 A law has been defined as "a rule of civil conduct pre- Definition 
 scribed by the supreme power in a state, commanding what ° *^ 
 is right and prohibiting what is wrong."- Certain words in this 
 definition need explanation, (i) Law is a rule; that is, it is 
 something permanent (until changed by the governing author- 
 ity), uniform, and general. It must apply not to a single 
 individual but to all individuals or to all of a certain class 
 within the community or society. It differs from advice which 
 a citizen is at liberty to follow or not, in that it depends not 
 upon the approval of the citizen but upon the will of the maker. 
 
 ^ Civil Rights Cases, 109 U. S. 3, 11. See also Everett Kimball, 
 National Government of the United States, p. 393. 
 2Blackstone, Commentaries, Introduction, pp. 44-46.
 
 240 STATE AND MUNICIPAL GOVERNMENT 
 
 It differs from a contract entered into by the citizen in that 
 the rule is a command directed to the citizen. A contract in 
 popular language is an "I will" or "I will not"; law is a 
 "Thou shalt." (2) A law is a rule of civil conduct, thereby 
 distinguishing it from rules for moral conduct and rules of 
 faith. This does not mean that law may not deal with morals 
 or religion. It may; but law deals primarily with the citizen 
 in relation to other citizens, and their union in the political 
 community or society known as the state. (3) A law is pre- 
 scribed; that is, must be notified to the people. This may 
 be done in various ways : by universal tradition and long prac- 
 tice, as is the common law; by proclamation, either written 
 or spoken, which may call attention of the citizens to the law ; 
 or by publication of the statutes. (4) A law is a rule pre- 
 scribed by the supreme power of the state. In the state and 
 national governments of the United States and in direct legis- 
 lation the people are sovereign. The people act directly in the 
 acceptance of their constitution by means of the initiative, the 
 referendum, and the recall, or indirectly through their repre- 
 sentatives in the legislature. Law is the rule prescribed by the 
 people, either directly or indirectly. It is true that the people 
 in the legislature may delegate certain subordinate legislative 
 functions to municipalities and towns, but these ordinances or 
 by-laws may at any time be reversed, amended, or repealed by 
 the action of the supreme legislative power in the state or by 
 the people acting directly or through their agent the legislature. 
 Sources of Without attempting a complete classification of all the pos- 
 sible sources from which state law may be derived, the fol- 
 lowing outline will indicate the composition of by far the larger 
 part of the law as administered by the state courts. This 
 law is derived from four main sources — ( i ) statutory law, 
 (2) international law, (3) common law, (4) equity.^ 
 
 ^This classification of the sources of state law is not a mutually exclu- 
 sive one. International law is composed in part of statutory law (that 
 is, treaties nnd a^rci'nicnts) and in part of custom and usaRC. In the 
 same way, although romnion law had its origin entirely in custom it is 
 modified and developed by statutes. So also equity, which originated in 
 the decision of cases, has now largely been reduced to statutes. 
 
 state law.
 
 THE LEGAL SYSTEM OF THE STATES 241 
 
 Statutory law, or, as it is sometimes known, written law, is statutory 
 the conscious and formal attempt of the citizens to pre- ^^' 
 scribe a rule of civil conduct, to make a law. Statutory law 
 as administered by the state includes two main divisions : 
 the Federal Constitution and the constitution of the state, 
 and each of these divisions is subject to further differentia- 
 tion into federal statutes and treaties and state laws and 
 municipal ordinances. 
 
 The limitations which the Federal Constitution prescribes (i)TheFed- 
 upon state legislation and state activities have already been stuution 
 discussed.^ It is sufficient here to note that every right guaran- 
 teed by the Constitution to the citizens of the United States 
 and every limitation prescribed by the Federal Constitution 
 upon state activities is, in the first instance, enforceable in the 
 state courts ; that is, the state courts may overrule the activity 
 of any state official or declare unconstitutional any act of a 
 state legislature in conflict with the Federal Constitution. 
 
 In like manner all federal statutes passed in the fields of [Federal 
 legislation which are granted to Congress are superior to ^ ^ " ^^^ 
 state constitutions and state legislation. These are constantly 
 increasing in number, as by interpretation and amendment the 
 fields of national action are extended. Thus, for example, 
 the Volstead Act, by enforcing the prohibition amendment, 
 nullified much state legislation. 
 
 The Federal Constitution gives to the president, with the [Treaties] 
 assent of the Senate, the power to make treaties. These 
 treaties, like acts of Congress, are superior to the constitutions 
 and laws of the states. In the last instance they are enforce- 
 able through a decision of the Supreme Court of the United 
 States, but any state court may properly declare state action 
 unconstitutional by reason of conflict with a federal treaty. 
 The supremacy of these three types of federal law over any 
 state action rests upon Article VI of the Constitution, which 
 says: "This Constitution and the laws of the United States 
 which shall be made in pursuance thereof; and all treaties 
 made, or which shall be made, under the authority of the 
 United States, shall be the supreme law of the land. . . ." 
 
 ^See pages 8-17.
 
 242 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) Stote 
 constitu- 
 tions 
 
 [State 
 statutes] 
 
 [Municipal 
 ordinances] 
 
 Interna- 
 tional law 
 
 Common 
 law 
 
 The federal statutory law just discussed is mainly negative 
 in its effect upon state courts. It prevents or supersedes state 
 action. The positive law which the state courts enforce is 
 derived in the first instance from the state constitutions. The 
 nature of these constitutions has been already discussed.^ It 
 is sufficient here to note that they not only provide a frame- 
 work of government but also guarantee to the citizens certain 
 rights and privileges. Many state constitutions go even further 
 and enact codes of laws which are applied by the courts. 
 
 The greater part of the written law of the states, however, is 
 to be found in the form of statutes. These statutes may be 
 the result either of a bill passed by the legislature or of an 
 act adopted by the direct action of the people — the initiative 
 and referendum. Included in the state statutes, although not 
 strictly the enactment of the supreme legislative power of the 
 states, are the municipal by-laws and ordinances and even the 
 regulations adopted by administrative commissions acting in 
 pursuance of some state law. State statutes as thus defined 
 include the greater part of the civil and criminal law which 
 the state courts enforce. This body of law is increasing with 
 portentous speed. When it is remembered that there are 
 forty-eight state legislatures, the majority of which meet every 
 two years, and that each produces at least one substantial 
 volume of statutory law at every session, it will be seen that 
 the body of law in the United States is enormous. 
 
 International law possesses the character both of statutory 
 law, in that it may be a formal enactment of the sovereign 
 power in the form of a treaty, and of common or customary 
 law (which will later be described), in that it depends upon 
 usage. International law is a part of the law of every state. 
 In general it is enforceable only in the federal courts, but a 
 state court might negative the action of a state official on the 
 ground that it was contrary to some principle of international 
 law. Ordinarily, however, the aggrieved party would appeal 
 from the action of the state official to a United States court. 
 Common law, or, as it is sometimes known, unwritten law, 
 was the original basis of the English legal system. It differs 
 
 ^Sce pages 18-36.
 
 THE LEGAL SYSTEM OF THE STATES 243 
 
 from statutory law in several important respects. Statutory 
 law is formal legislation ; common law is largely based on cus- 
 tom. Statutory law is a general rule made by the legislature 
 or by the people acting directly ; common law is made by the 
 judges and courts in applying to a particular case a rule de- 
 rived from customs which "have been used so long that the 
 memory of man runneth not to the contrary." In its origin 
 common law was derived from the customs of the various race [common 
 elements that made up the English people ; in its development England] 
 common law was the application of these customs by the judges 
 to the particular cases brought before them. At a very early 
 period in the history of the common-law courts the judges and 
 lawyers made memoranda of decided cases and much later 
 committed their records and decisions to writing. Hence it 
 gradually became easier to consult the previous cases than to 
 determine what was the original tradition or custom. Common 
 law is thus case law, judge-made law, dependent upon prece- 
 dent. Statutory law is legislation, the making of a rule to form 
 a new precedent. Statutory law may be easily amended or 
 repealed to suit changing conditions ; common law was formerly 
 supposed to embody unchanging principles and was changed 
 with great reluctance. Statutory changes became much more 
 frequent in England and America in the eighteenth century. 
 The English colonists at first considered the common law not 
 suited to conditions in the New World, and in New England 
 they were antagonistic to it. Gradually, and in varying degrees 
 in different colonies, the common law was adopted so far as 
 it was applicable to the new frontier conditions.^ After the 
 Revolution there was a tendency in some states to declare the 
 doctrines of common law inapplicable in American courts, but 
 this was merely temporary. Most states made the common 
 law of England, as it was at the time of the Revolution, the 
 basis of their own common law. Other states, by statutory [common 
 
 1 ,1 ft • • 1 f law in the 
 
 enactments, have adopted most of the prmciples of common united 
 law.- In the United States common law includes not only the states] 
 
 ip. S. Reinsch, English Common Law in Early American Colonies, p. 58. 
 2 In Louisiana the Code Napoleon of the civil law prevails in civil 
 matters, but the English common law is used in criminal cases.
 
 244 STATE AND MUNICIPAL GOVERNMENT 
 
 principles evolved from the decisions of the courts but many- 
 English statutes as well. Even in England common law was 
 added to by acts of Parliament, and all these which were in 
 force in the colonies at the time of the separation from Eng- 
 land, unless repealed, are included in American common law. 
 Finally, American common law is subject to alteration and 
 addition by legislative action and thus in part resembles 
 statute law. 
 Equity It is extremely difficult to give a satisfactory description of 
 
 equity in a few words. Some understanding of the term may 
 be gained from a brief statement of its origin. As has been 
 said, during Saxon times the varynng customs were the basis 
 of the English legal system. With the Norman conquest and 
 the accession of William the First and his immediate successors, 
 a new theory came into English jurisprudence. The king was 
 considered the fountain of justice. He himself and his officers 
 dispensed justice and enforced the king's will. The jurisdiction 
 of the common-law courts was greatly restricted. The forms of 
 action and the procedure in these courts were not flexible enough 
 to grant justice in the rapidly changing conditions. Conse- 
 quently many litigants, after they had been refused what they 
 felt was their just remedy by the common-law courts, would 
 appeal to the king in person in his character as the fountain of 
 justice. The most important official in the king's court was his 
 chancellor, generally an official of the Church and known as 
 the keeper of the king's conscience. From the very earliest 
 times he was the confidential adviser of the king. When appeals 
 from the common-law courts became too numerous for the 
 king to attend to in person they were turned over to the chan- 
 cellor, who became the head of a special court where these 
 petitions for relief were heard. This court was known as the 
 chancellor's court or, later, the court of chancery. 
 Basis of the The common-law courts were bound by precedent. The 
 orthe""^ chancellor was not supposed at first to be bound by the deci- 
 chanceiior sions of the common-law courts or to be limited in any way other 
 than by his conscience. He was supposed to do justice, to grant 
 relief, or to provide remedies in case the common-law courts 
 could not grant relief or provide a remedy consonant with
 
 THE LEGAL SYSTEM OF THE STATES 
 
 <&> 
 
 justice. Although originally the chancellor was not bound by- 
 previous decisions and precedents, his decisions were preserved 
 and in time came to be regarded as precedents in similar cases. 
 Thus, there grew up beside the common law, and in many ways 
 superior to it, the precedents of the court of chancery — a set 
 of principles and a procedure which is known as equity. 
 
 Today equity procedure is almost as rigid as the procedure character 
 at law ; that is, there have been evolved precedents, rules, and jurisdiction 
 maxims which determine its use. There is this difference, how- 
 ever, that remedies in equity are more easily adjustable to the 
 circumstances of particular cases. A discussion of a few of 
 the maxims of equity will make this clear. 
 
 ''Equity will not suffer a wrong to be without a remedy." Maxims of 
 
 . equity 
 
 This is the key to the whole system. In law there is no wrong 
 suffered unless the law provides a remedy. Equity will not 
 allow a wrong to be committed. It provides a remedy for every 
 wrong and even more. It sees to it that the remedy is an ade- 
 quate one. ''Equity acts in personam.'' By this is meant that 
 equity directs the performance or the cessation of certain acts 
 which are necessary that justice may be done. A decision at 
 law in criminal cases results in a sentence — imprisonment or 
 fine. A decree in equity is directed against a person and is a 
 command to him to do a thing or to refrain from doing a thing. 
 The limit of a remedy in law is the property which may be 
 seized and sold to satisfy damages. In equity a person may be 
 punished for contempt of court; that is, for refusal to obey 
 the decree. Law gives damages. Equity compels performance. 
 "He who comes into equity must do so with clean hands." 
 This means that if a litigant claims fraud, he must be free from 
 fraud himself. "He who seeks equity must do equity!" This 
 means that he not only must have clean hands but must be 
 willing to do what is right and fair in the whole transaction. 
 
 The federal courts administer both law and equity. There Eq"ity.i° 
 
 the United 
 
 are no separate and distinct courts. About half of the states states 
 follow this practice, and most courts of general jurisdiction sit 
 as courts of law or of equity and may grant legal or equitable 
 relief according to the nature of the case. In a few states 
 the distinction between legal and equitable remedies has been
 
 246 STATE AND MUNICIPAL GOVERNMENT 
 
 abolished.^ This has been accomplished by the adoption of 
 what is known as "code procedure," which attempts to pre- 
 scribe a form of action for every case. In so doing, the codes 
 utilize both the common-law procedure and the reliefs of equity. 
 Hence it is correct to assume that equity is administered in 
 the courts of every state. This merging of law and equity, and 
 the assumption so general in the United States that law is too 
 technical for anyone but trained lawyers, have made the dis- 
 tinction between these two branches of law a matter of 
 ignorance or of indifference to the average person. 
 
 Legal 
 rights 
 
 Rights 
 in rem 
 
 Rights 
 
 in personam 
 
 2. Rights of Persons and Property 
 
 A legal right may be defined as a power, interest, or privilege 
 recognized and protected by law. A legal wrong is a violation 
 of a legal right. A legal remedy is a method employed by the 
 law to enforce a legal right or redress a legal wrong.- Legal 
 rights, however, may be divided into two classes. One class of 
 rights comprises those which the possessor holds against the 
 entire community and which the whole community is bound to 
 respect. This class of rights is sometimes called the rights 
 of ownership or, in more technical language, rights in rem. 
 Another class of rights, however, consists of those which the 
 possessor may enforce against particular persons only. These 
 correspond to obligations on the part of such persons to act 
 or to refrain from action in regard to a subject matter of the 
 right. These rights are called rights of obligation, or rights 
 in personam. Both types of rights may be illustrated by a 
 contract between two parties by which one promises to pay 
 for an article and the other to deliver the article. In such a 
 case the person receiving the goods acquires a right in rem, 
 while the person receiving the promise acquires a right in 
 personam.^ In the one case the state will protect the owner of 
 the goods in his possession of them against the whole com- 
 munity. The owner has the right of ownership. On the other 
 hand, the one receiving the promise to pay has acquired a right 
 
 ' California, Connecticut, Indiana, Minnesota, Missouri, New York, 
 Ohio, South Carolina, Wisconsin, and other Western states. 
 -W. L. Clark, Elementary Law, p. 67. -'Ibid. p. 69.
 
 THE LEGAL SYSTEM OF THE STATES 247 
 
 in personam against the person making such a promise. The 
 law will protect him in the exercise of this right, not as 
 against the whole community but as against the person making 
 the promise. 
 
 All free governments recognize three fundamental rights in Fundamen- 
 rem : the right of personal security, the right of personal liberty, ,„ rem 
 the right of private property. The constitutions of all the 
 states guarantee these rights. 
 
 The right of personal security is the right to life which is Right of 
 
 , . , . , . . personal 
 
 recognized as the natural right of every man unless his exist- security 
 ence has become a menace to the state or unless his life is 
 needed for the protection of the state. This right is the most 
 fundamental one. The right of personal security includes more 
 than mere existence. It includes the right to the use of the 
 limbs. A legal distinction which is not always clear is made 
 between the limbs and the body. Thus a person may be justi- 
 fied in using any amount of force, even to the extent of killing 
 a person who threatened to destroy his life or limbs. But he 
 would not be justified in killing another who merely threatened 
 an injury to his body.^ 
 
 Personal liberty means the right of an individual to act Rights of 
 
 , . -Ill T L personal 
 
 with freedom except so far as he is restrained by law. In the freedom 
 constitutions of the states liberty means more than this, and 
 includes all those rights necessary for the pursuit of happiness. 
 These rights, however, are not necessarily included in the legal 
 conception of the word "liberty." Rather they are moral rights. 
 Personal liberty in the legal sense is the freedom of the in- 
 dividual so far as he is not restricted by law. Since the law 
 may act differently upon different classes, it is possible to speak 
 of the right of personal liberty in a state where slavery exists, 
 provided slavery is established by law. Personal liberty, more- 
 over, is generally held to comprise more than mere freedom of 
 movement and may include freedom of thought, speech, and 
 
 1 According to legal tradition, which carries us back to less civilized 
 days, the limbs include the arms, legs, eyes, front teeth, and all parts 
 the deprivation of which would render a person less able to defend 
 himself in a fight. Thus a threatened injury to the eye might justify 
 the use of any amount of force in defense; not so in the case of a 
 threatened injury to the nose.
 
 248 STATE AND MUNICIPAL GOVERNMENT 
 
 the right to pursue any lawful calling. It should be repeated, 
 however, that the rights of thought, speech, and pursuit of 
 business are conditioned upon the law of the state, which may 
 make certain callings illegal, may prohibit or limit the right 
 to speak and publish certain matters, and may restrict the 
 freedom of movement of its citizens. 
 Right of All states recognize the right of an individual to possess and 
 
 property ^^^ things unconnected with his person. This is the right of 
 private property. In strict legal theory all property within the 
 state is subject to the sovereign power of the state, and thus it 
 may perhaps be technically incorrect to speak of the absolute 
 o\\Tiership of any private property. In fact, the legal phrase 
 by which private ownership of land is described is borrowed 
 from the feudal system, in which the sovereign was recognized 
 as the supreme landlord who granted the land to his tenants 
 according to the various forms of tenure. Thus today the most 
 absolute ownership of land is described as being in fee simple. 
 Another distinction must be made with regard to the right of 
 property ; namely, between the rights of ownership and of 
 Ownership; posscssion. Ownership involves the right of absolute control 
 possession ^^ ^^^ property, subject only to the law of the state. Posses- 
 sion, however, is the immediate holding of the thing. It may 
 be wrongful possession, as in the case of larceny, or it may be 
 rightful possession, as in the case of leasing. In fact, a lease 
 for a piece of land illustrates both the ownership and the 
 possession of the land. The lessor owns the land and may 
 dispose of it in any way he sees fit, subject, however, to the 
 rights of the lessee as expressed in his lease. The lessee, on the 
 other hand, does not own the land, but has possession of it ; 
 that is, he may hold the land during the duration of his lease 
 and use it according to the terms of his lease. 
 Ownership Private ownership of property is subject to certain limita- 
 '"" tions. The chief of these, as recognized by the law, are the 
 
 (i) By rights following : (i) An owner may not use his property so as to 
 interfere with the rights of others. The legal golden rule is 
 expressed in the Latin maxim Sic utere tuo ut alicmim non 
 lardas (So use your own as not to injure that of another). 
 (2) The private property of an individual may be taken to
 
 THE LEGAL SYSTEM OF THE STATES 249 
 
 satisfy his just debts. These debts may be obligations which (2)Byiia- 
 he has incurred in business transactions or damages for which ^^^^^ 
 he is liable through the injury of the rights of others. Thus, 
 if the court should award damages against a motorist for in- 
 juries he had inflicted upon another person, the property of 
 the motorist might be sold at auction to satisfy this claim. 
 Most states, however, except from seizure to satisfy debts such 
 property as the tools or implements of one's trade or occupa- 
 tion, the declared homestead of a householder, and sometimes 
 an additional exemption known as the poor debtor's exemp- 
 tion, or the allowance of the poor law. (3) The property of (3»Byiia- 
 every owner is subject to the right of taxation on the part of taxes 
 the government. This right of taxation is an inherent at- 
 tribute of sovereignty and may be exercised without limitations 
 other than those prescribed by the constitution. Private prop- 
 erty may, by due process of law, be seized and sold to satisfy 
 the demands of taxation. (4) All private property is held sub- (4) By right 
 
 . . of eminent 
 
 ject to the right of emment domam. This is the right of the domain 
 state, or of some corporation created by the state to serve in a 
 semi-public function such as building and operating a railroad, 
 to acquire specific property. The right of eminent domain 
 differs from, the right of taxation in that the state or corporation 
 taking the property must give just compensation for the prop- 
 erty so taken. Property taken under the right of eminent 
 domain can only be taken for a public purpose. Just what a 
 public purpose is varies from generation to generation and is 
 subject to judicial interpretation. (5) Finally, all private prop- (5) By the 
 
 police power 
 
 erty is held subject to the police power of the state. This has 
 been briefly defined by the Supreme Court as "nothing more 
 or less than the powers of government inherent in every sover- 
 eignty . . . that is to say, . . . the power to govern men 
 and things."^ In practice, however, it includes the right of 
 the state to make reasonable regulations for the promotion of 
 the morals, safety, health, general welfare, and convenience 
 of the community .- 
 
 ''^ License Cases, s How. 504, 583. 
 
 2 The power of the state over the property of its citizens has been 
 well defined by the Supreme Court as follows: "The power of the State
 
 2sO STATE AND MUNICIPAL GOVERNMENT 
 
 Kinds of 
 property 
 
 Real and 
 
 personal 
 property 
 
 Property may be classified according to its tangibility as 
 corporeal and incorporeal property. Corporeal property is that 
 which may be seen and touched. Incorporeal property, how- 
 ever, comprises intangible rights, which exist only in the 
 contemplation of the law. Thus a piece of land is corporeal 
 property ; the right of passage over that land is also property, 
 but is incorporeal property. Articles bought on credit are cor- 
 poreal property. But the merchant, as a creditor, has intangible 
 and, therefore, incorporeal property in the right he has to the 
 payment of a debt. When the debt has been paid this incorporeal 
 property vanishes. Other examples of incorporeal property are 
 franchises, annuities, rents, stocks, and bonds. 
 
 According to the Roman law property was divided into 
 movables and immovables, and in modern English and Ameri- 
 can law immovable property is described as "real property" 
 and that which is movable as "personal property." 
 
 over the property of the citizen ... is well defined. The State may 
 take his property for public uses, upon just compensation being made 
 therefor. It may take a portion of his property by way of taxation for 
 the support of the government. It may control the use and possession 
 of his property, so far as may be necessary for the protection of the 
 rights of others, and to secure to them the equal use and enjoyment of 
 their property. The doctrine that each one must so use his own as 
 not to injure his neighbor — Sic utere tuo ut alienum non ladas — is the 
 rule by which every member of society must possess and enjoy his 
 property ; and all legislation essential to secure this common and equal 
 enjoyment is a legitimate exercise of state authority. Except in cases 
 where property may be destroyed to arrest a conflagration or the 
 ravages of a pestilence, or be taken under the pressure of an immedi- 
 ate or overwhelming necessity to prevent a public calamity, the power 
 of the State over the property of the citizen does not extend beyond 
 such limits. 
 
 "It is true that the legislation which secures to all protection in their 
 rights, and the equal use and enjoyment of their property, embraces an 
 almost infinite variety of subjects. Whatever affects the peace, good 
 order, morals and health of the community, comes within its scope ; and 
 everyone must use and enjoy his property subject to the restrictions which 
 such legislation imposes. What is termed the police power of the State, 
 which, from the language often used respecting it, one would suppose 
 to be an undefined and irresponsible clement in government, can only 
 interfere with the conduct of individuals in their intercourse with each 
 other and in the use of their property, so far as may be required to 
 secure these objects." — Miinn v. Illinois, 94 U. S. 113-154
 
 THE LEGAL SYSTEM OF THE STATES 251 
 
 According to Blackstone^ real property is "such as is perma- 
 nent, fixed and immovable, which cannot be carried out of its 
 place. . . ." Personal property is also defined as "goods, 
 money and all other movables which may attend the owner's 
 person wherever he thinks proper to go." Real property is 
 always corporeal ; personal property may be either corporeal 
 or incorporeal. Real property originally included land, houses, 
 and such things as were attached to the land ; personal prop- 
 erty, on the other hand, at first included chiefly cattle, weap- 
 ons, and household utensils. The great development in modern 
 times has been the increase of personal property, particularly 
 of an incorporeal nature. Thus, much of our wealth is in 
 stocks, bonds, mortgages, and other evidences of rights which 
 the owner may possess. 
 
 3. Criminal Law 
 
 A tort, according to Blackstone, is a private wrong, ''an crimes and 
 infringement or privation of the civil rights which belong to 
 individuals considered merely as individuals." A crime or a 
 public wrong is a "breach and violation of the public rights 
 and duties, due to the whole community, considered as a com- 
 munity, in its social aggregate capacity."^ In spite of such 
 high authority these definitions hardly bring out the real dis- 
 tinction between a crime and a tort. Both are wrongs which 
 an individual commits. The true distinction is better shown 
 in the respective modes of redress allowed by law. When the 
 state on its own responsibility and in its own name is empow- 
 ered by law to prosecute and punish an act, that act is a crime. 
 When, however, an act renders the doer liable in damages to 
 the person or persons wronged, such an act is a tort. A crime, 
 therefore, may be defined as an act or omission so far contrary 
 to public policy that the person guilty thereof is punished for 
 it by and in the name of the sovereign body. Thus a crime 
 may also be tort. For example, if A knocks down B this is 
 assault and battery, and B may sue A for damages. Consid- 
 ered in this light the act was a tort, but i\'s act may also be 
 
 1 Commentaries, Bk. II, p. 15. 
 2Ibid. Bk. IV, p. s.
 
 2 52 STATE AND MUNICIPAL GOVERNMENT 
 
 Classifica- 
 tion of 
 crimes : 
 
 Treason 
 
 Felonies 
 
 Common - 
 law and 
 statutory 
 felonies: 
 
 (ij Murder 
 
 (a) Man- 
 slaughter 
 
 considered as disturbing the peace and may be prosecuted and 
 punished by the state. Regarded from this point of view, the 
 act was a crime. In many states the statutes allow civil action ; 
 that is, suit for damages for wrongs which the state may 
 punish as crimes. 
 
 In general, crimes are classified by the law, as treason, 
 felonies, misdemeanors, in order of their enormity. 
 
 Treason is defined by the Federal Constitution and the con- 
 stitutions of the states as levying war against the state or 
 adhering to the enemies or giving them aid and comfort. The 
 crime of treason is regarded as a fundamental attack upon the 
 existence of the state itself and thus is put in its own category. 
 
 According to English common law a crime was a felony if 
 punishable by death. Since the restriction of the death penalty 
 and its abolition in some states, this distinction is no longer 
 valid. In the jurisprudence of the states the statutes define 
 all the felonies which were formerly considered as felonies by 
 English common law and add to this list many crimes whose 
 enormity seemed to justify severe punishment. These are 
 called statute felonies. 
 
 Without attempting a complete enumeration of the common- 
 law and statutory felonies, the more important are the following : 
 
 Murder is the unlawful killing of a human being with malice 
 aforethought. It is to be distinguished from homicide, which 
 means the killing of any human being. IMurder, however, 
 involves, first, unlawful killing as distinguished from an execu- 
 tion ordered by the state; second, and its most distinguishing 
 characteristic, it must be with malice aforethought. This is 
 a technical expression which may be defined as including a dis- 
 regard of the rights of the victim and the duty owed to society 
 and an intent to commit some crime. This crime in itself need 
 not be homicide. For example, if a person in the attempt to 
 commit robbery unintentionally kills another person, the act is 
 murder. In many states murder has been divided into various 
 degrees, according to the circumstances of the homicide. 
 
 Manslaughter is unlawful homicide without malice afore- 
 thought. It may be voluntary or involuntary. V^oluntary man- 
 slaughter is intentional homicide in a sudden passion caused by
 
 THE LEGAL SYSTEM OF THE STATES 253 
 
 adequate provocation, but without malice aforethought. In- 
 voluntary manslaughter is homicide without malice and with- 
 out intention. This may be caused, first, by the performance 
 of some unlawful act not amounting to felony nor ordinarily 
 tending to cause death, such as an assault from which unex- 
 pected death may result. For example, if A strikes B, and 
 in falling B fractures his skull on the pavement, A's act would 
 probably be classified as involuntary manslaughter. Second, 
 involuntary manslaughter may also be the result of the negli- 
 gent performance of some lawful act; as, for example, the 
 careless driving of a motor car. Third, it also may result 
 from the negligent omission to perform a legal duty ; as, to 
 give warning before the explosion of a blast or to neglect to set 
 the signals at a railroad crossing. 
 
 At common law, arson is the willful and malicious burning (3) Arson 
 of a dwelling-house or outhouse of another. It is not arson for 
 a man to burn his own house nor is it arson for a man to burn 
 another's house at his request in order to defraud the insurance 
 company. By statute the burning of other buildings, such as 
 shops and warehouses, is made arson. 
 
 The common-law crime of burglary is very carefully defined. (4) Burglary 
 It is the breaking and entering of the dwelling-house of an- 
 other in the nighttime with the intent to commit felony therein, 
 whether the felony is actually committed or not. Five elements 
 must be present to constitute this crime, (i) There must be 
 some breaking of the house. Entrance through an open door 
 or window to commit felony is not burglary. The latch must 
 be turned or the window raised or even an unlatched door must 
 be pushed open to constitute breaking. (2) There must be 
 some entry, although this may be of the slightest ; for example, 
 the pushing through of an arm or gun or hook for the purpose 
 of taking goods. (3) The house must be a dwelling-house, 
 but most states by statute make it burglary to break and 
 enter, with felonious attempt, buildings other than dwellings. 
 (4) The breaking and entering must be in the nighttime; that 
 is, "between the time when the countenance ceases to be rea- 
 sonably discernible and the time when the countenance be- 
 comes discernible." (5) Both the breaking and entering must
 
 2 54 STATE AND MUNICIPAL GOVERNIMENT 
 
 be with the intent to commit some felony, although the felony 
 itself may not actually have been committed. 
 
 (5) Larceny Larceny is the taking and carrying away of the personal 
 
 goods of another with the intent to steal. This is an extremely 
 technical crime, but involves various essentials, (i) The thing 
 taken must be the personal property of another — that is, (a) it 
 must be personal, not real property; (b) it must be what the 
 state recognizes as property; (c) it must be owned by another. 
 (2) It is necessary that the property must be carried away from 
 the place which it occupies. Any removal, however slight, is 
 sufficient. (3) There must be an intent to deprive the owner 
 of his property ; that is, to steal. This intent must e.xist at the 
 time of the taking, and the taking must be without the right of 
 claim. Larceny is divided into grand and petit larceny according 
 to the value of the property stolen. 
 
 (6) Robbery Robbery is an aggravated form of larceny. It involves all 
 
 the elements of larceny as described above and, in addition, 
 the property must be taken from another's person or in his 
 actual presence. Moreover, the property must be taken either 
 by violence or by inciting fear. Thus a pickpocket is guilty 
 not of robbery but of larceny. 
 
 Common- The crimes which follow were classified as misdemeanors by 
 
 demeanors: English common law, although in many states some of these 
 crimes have been raised to the rank of felonies. 
 
 (i) conspir- Conspiracy is the combination of two or more persons to 
 commit an unlawful act. In general the offense is divided into 
 three heads : ( i ) where the end to be obtained is in itself a 
 crime (as, for example, the combination of two or more persons 
 to commit a felony such as murder or any misdemeanor) ; 
 (2) where the object is lawful, but the means by which it is 
 to be obtained is unlawful; (3) where the injury to the third 
 person, if inflicted by a single individual, would be a civil 
 wrong and not a cfime. The germ of conspiracy is an unlawful 
 combination, not the overt act. 
 
 (i) Assault Assault is the threat of force or violence to do corporeal 
 attery j^^^^ ^^ another. Battery is the unlawful touching of the per- 
 son of another by the aggressor or by some substance put in 
 motion by him. An assault may not result in battery, but
 
 THE LEGAL SYSTEM OF THE STATES 255 
 
 every battery necessarily includes an assault. Thus, for ex- 
 ample, to shoot or strike at another and to miss him is as- 
 sault but not battery. To shoot or strike a person is assault 
 and battery. 
 
 False imprisonment is the unlawful restraint of another per- (3) False 
 son's liberty. There must be actual restraint of the liberty of ment 
 the person. This may be in a jail or a private house, or even 
 by merely detaining him on the street. 
 
 A common nuisance is the creation or maintenance of con- (4) Nuisance 
 ditions which are prejudicial to the health, comfort, safety, 
 property, sense of decency, or morals of the community at 
 large. This act must result either from the neglect of a duty 
 imposed by law or from an act not warranted by law, and 
 must affect the community at large and not merely a few 
 individuals. 
 
 By common law, forgery is a misdemeanor, but every state (5) Forgery 
 has made it a felony. It consists in the false making or alter- ^° " ^""^^ 
 ing, with intent to defraud, of any writing which might be the 
 foundation of a legal liability, or the altering of writing to the 
 prejudice of another man's rights. To constitute the crime 
 the alteration must be false, with the intent to defraud ; the 
 instrument must apparently impose a legal liability ; and the 
 alteration must be material. Uttering consists of the offering 
 directly or indirectly of a forged instrument. 
 
 Any willful and unjustifiable disturbance of the public peace (e) Breach 
 which violates public order is a breach of peace. Any public ° ^^*^* 
 act of indecorum is also a breach of peace. 
 
 An unlawful assembly takes place where three or more per- (7) uniaw- 
 
 ,,.,,. . . , f ful assembly 
 
 sons meet ( i ) with the intent to commit a crime by open force and riot 
 or (2) with the intent to carry out a purpose, whether lawful 
 or not, in such a manner as to give a firm and courageous per- 
 son reasonable grounds for apprehension that a breach of peace 
 will ensue. A riot exists where an unlawful assembly has 
 actually begun to execute its purpose by a breach of peace 
 and to the terror of the public, or where a lawful assembly 
 proceeds to execute an unlawful purpose to the terror of the 
 people. To constitute these crimes at least three persons 
 must assemble.
 
 2 56 STATE AND MUNICIPAL GOVERNMENT 
 
 (8) Libel In general, libel is considered as the malicious publication of 
 
 any writing, picture, or representation tending to expose an- 
 other person to hatred, contempt, or ridicule. It applies both 
 to the defamatory matter published and to the offense of 
 publication. The law regards it as a crime against the public 
 peace, because the publication of a libel may incite a breach 
 of peace ; therefore, in the prosecution for a criminal libel 
 the truth of the publication is not a defense unless made so 
 by statute. 
 
 In addition to the foregoing, the laws of the states have 
 made many other acts either crimes or misdemeanors. 
 
 4. Torts 
 
 Definition A tort is a private or civil wrong or injury. More broadly, 
 a tort may be defined as a breach of legal duty or a violation 
 of another's right for which the injured party may maintain 
 an action at law for damages.^ A tort is always a violation of a 
 right in rem ; that is, a right which a person holds as against 
 the whole community, A tort, moreover, at once gives rise to 
 a right of action in personam ; that is, against the person com- 
 mitting the damage. Thus the moment a right in rem is 
 violated, a new relation is set up between the possessor of the 
 right and the wrongdoer. The possessor of the right obtains 
 the right of action for damages for the injury to his rights. 
 As has been shown, torts are to be distinguished from crimes 
 by the theories of the objects of the wrong and by the remedies, 
 A crime is punishable by state prosecution, a tort gives rise to 
 a private claim for compensation by damages. A tort, further- 
 more, is to be distinguished from a breach of contract. A tort, 
 as has been said, is a violation of a right in rem ; that is, it is 
 - a breach of general legal duty created and enforced by law, 
 A breach of contract, however, is a violation of a right in per- 
 sonam^ created by voluntary agreement but enforced by law; 
 that is, of the specific obligation set up by the contract. This 
 may be illustrated as follows : A person becomes a passenger on 
 a railway car, thereby entering into a contract for safe carriage, 
 
 ^W. L. Clark, Elementary Law, i)p. 131-132.
 
 THE LEGAL SYSTEM OF THE STATES 257 
 
 Through the neghgence of the railway company the person is 
 injured. Has he suffered a tort or a breach of contract? The 
 railroad company might contend that it was merely a breach of 
 contract for which the plaintiff might recover his fare. The 
 courts, however, have decided that the railway company owes 
 to the general public, and to the plaintiff in particular, the 
 duty of exercising care and thus holds that injury, arising 
 through negligence, is not merely a breach of contract but 
 a tort as well. 
 
 It is extremely difficult to make a complete and satisfac- ciassifica- 
 tory classification of torts. The following classification, which torts: 
 is abridged and adapted from Sir Frederick Pollock, will 
 give some idea of the extent of the subject. Torts may be 
 classified on a threefold basis, according to their scope and 
 effect. Certain wrongs affect the safety and freedom of a per- 
 son. These may be classified as personal torts. Others may 
 merely affect property, and thus may be classified as torts 
 against possession and property. Others may affect persons or 
 property or both. 
 
 (i) Under personal wrongs should be mentioned assault and d) personal 
 battery and false imprisonment. Both of these are common- '^''°°^* 
 law crimes and punishable by the state. But as they also 
 violate a personal right, the aggressor has committed a tort 
 for which the injured party may claim damages. (2) Wrongs 
 affecting the personal relations in the family. These include 
 the actions which a husband or parent or employer may main- 
 tain for the loss of services or expense resulting from a tort 
 committed upon his wife, child, or employee. Thus a husband 
 may bring a suit for damages against a railroad company in 
 whose cars his wife has been injured, or may sue another per- 
 son for the injuries his child sustained because of assault and 
 battery. (3) Wrongs affecting reputation, or defamation. This 
 is slander and libel. Slander is the defamation of a person by 
 words or gestures; libel is the defamation by writing. In 
 order to make defamation a tort, publication is necessary. 
 Defamation may apply either to persons or to things. Applied 
 to things, it is called slander of property or title. (4) Deceit 
 is the making of a false statement by a person who knows its
 
 2 58 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) Wrongs 
 to posses- 
 sion and 
 property 
 
 (3) Wrongs 
 to person, 
 estate, and 
 property 
 generally 
 
 falsity, or recklessly disregards whether it be true or false, to a 
 person who innocently acts upon such a statement and thereby 
 suffers damage. 
 
 The most important of the wrongs to possession and prop- 
 erty, and the one of the widest interpretation, is trespass. In 
 its widest legal sense trespass includes any wrong to the person 
 or property of another committed by force. Generally, however, 
 a wrong committed to the person by force is known as assault 
 and battery ; and trespass, in its narrowest sense, applies only 
 to the forcible violation of corporeal property. Trespass is 
 thus the wrongful and forcible disturbance of another's posses- 
 sion of goods or lands. It includes everything from the peace- 
 ful entry upon unfenced land to the forcible destruction or 
 injury of real or personal property, the latter being known as 
 trespass vi et armis (with force and arms). Any invasion of 
 property rights, however minute, is trespass. The gist of wrong 
 in trespass is the disturbance of possession. 
 
 Wrongs to person, estate, and property are twofold, 
 (i) Nuisance is the violation of the legal golden rule cover- 
 ing property. Sic utere tuo nt alienum non Icpdas (Use your 
 own so as not to injure that of another). It consists in 
 doing anything wrongfully or permitting anything to be wrong- 
 fully done which interferes with or annoys another person 
 in the enjoyment of his legal rights. The plaintiff must have 
 a legal right, and it must be proved that the defendant 
 has wrongfully or illegally committed or allowed to be com- 
 mitted a wrongful act. The nuisance may be committed against 
 property, both personal and real, corporeal and incorporeal, 
 and against the personal enjoyment of health and comfort. 
 Continuous and excessive noise may constitute a nuisance. 
 Vapors and noxious smells which destroy vegetation are nui- 
 sances. Even if they do not destroy vegetation but render 
 h'fe unhealthy or even uncomfortable, they are regarded as 
 nuisances. There are three private remedies for a nuisance: 
 (a) abatement by act of the party injured — thus, where the 
 branches of a tree extend over the land of another person these 
 may be cut and trimmed; {b) an injunction may be sought 
 through proceedings in equity; (r) an action for damages
 
 THE LEGAL SYSTEM OF THE STATES 259 
 
 may be begun in the courts. (2) Negligence. There are three 
 essential elements to negligence. The first is failure to exer- 
 cise commensurate care and diligence. If this failure is some- 
 thing more than merely inadvertence, the action will lie for 
 something more than negligence. Second, a breach of legal 
 duty must be involved ; that is, the sufferer must have a legal 
 right violated through the carelessness of the wrongdoer. 
 Finally, damage must result, 
 
 5. Contracts 
 
 Chief Justice Marshall defined a contract as follows: ''An Definition 
 agreement in which a party undertakes to do or not to do a 
 particular thing." ^ More extensively, a contract has been de- 
 fined as "an agreement enforceable at law, made between two 
 or more persons, by which rights are acquired by one or more 
 to acts or forbearances on the part of the other or others." - 
 Briefly, a contract is ''any agreement involving legal obliga- 
 tion." To be valid a contract generally possesses five essen- 
 tials : ( I ) There must be an offer and acceptance ; that is, one 
 party must offer to perform or refrain from performing a 
 certain task and the other party must accept this offer. 
 (2) The agreement must be made in the form prescribed by 
 law. For most contracts no particular form is necessary, and 
 an oral contract may be as binding as a written one. Other 
 contracts, however, like the sale of real estate or of goods 
 worth more than a certain amount, or a contract which is not 
 to be performed within a year, must be written in the forms 
 prescribed by law.^ (3) The parties must be capable in law 
 of making a valid contract. Thus a minor may not make a 
 contract without the assent of his parents. In some states a 
 married man may not dispose of his real estate without the 
 consent of his wife. (4) The consent expressed in the offer 
 
 14 Wheat. IQ7. 
 
 2W. L. Clark, Contracts (3d ed.), p. 2. 
 
 3 Every simple contract requires a "consideration"; that is, something 
 which moves from the promisee to the promisor in return for his 
 promise. This consideration need not be a payment of money, but may 
 be some benefit which is deemed of value in the eyes of the law.
 
 contracts 
 
 260 STATE AND MUNICIPAL GOVERNMENT 
 
 and acceptance must be genuine ; that is, there must be no 
 fraud or misunderstanding. (5) The objects and purpose of 
 the contract must be legal. Thus a contract to commit crime 
 is illegal, and no obligation can be maintained for such a con- 
 tract. In like manner, agreements which, although they do 
 not violate any positive law, may be contrary to public policy 
 are thus considered nonenforceable. Thus, all gambling trans- 
 actions, agreements by which a parent deprives himself of 
 the custody of his child, agreements in unreasonable restraint 
 of trade to prevent competition, to control prices, or to create 
 monopoly, and agreements exempting a person from liability 
 for negligence are unenforceable in the courts. 
 Particular It is almost impossible to classify the infinite variety of 
 contracts which may be made, but a few types may be men- 
 tioned, (i) Sales. A contract for sale is the agreement to 
 transfer the title to goods or lands. (2) Bailments. A bail- 
 ment may be roughly defined as the delivery of the mere 
 possession of a piece of personal propert}^ for a particular pur- 
 pose. This delivery is accompanied by a contract, either ex- 
 pressed or implied, by which the terms and conditions of the 
 delivery of the property are specified. A good example is the 
 delivery of a watch to a jeweler for repair. The implied con- 
 tract is that the jeweler agrees to keep the watch safely in order 
 to repair it and to return it to the owner when called for. On the 
 other hand, the owner agrees to pay for the service performed. 
 (3) Negotiable instruments. These form a most important and 
 highly specialized type of contracts. Under this heading are 
 included promissory notes, checks, drafts, bills of exchange, 
 and so forth. The chief characteristic of a negotiable instru- 
 ment is that it may be transferred from one owner to another 
 by mere delivery or indorsement. Such indorsement gives the 
 transferee the right to sue in his own name as if he were the 
 original owner. Another characteristic is that although a nego- 
 tiable instrument may be obtained by fraud, if it is transferred 
 to an innocent party for value received the latter may sue upon 
 it as if it had been obtained without fraud. (4) Other types of 
 contracts are guaranty contracts, by which one party becomes 
 answerable for the performance of some duty or contract of
 
 THE LEGAL SYSTEM OF THE STATES 261 
 
 another; suretyship, by which one party becomes responsible 
 for the debt ; default or miscarriage of another ; and insur- 
 ance, by which a person or corporation agrees to compensate 
 another for loss. 
 
 6. Domestic Relations 
 
 Marriage may be defined as the voluntary union between Marriage 
 one man and one woman to continue through life or until dis- 
 solved by judicial decree. In the United States and other 
 Christian countries this is the only type of marriage recognized, 
 although under the Mohammedan religion polygamy may be 
 practiced. According to common law no particular ceremony 
 is necessary for marriage. In most states, however, certain 
 formalities are prescribed ; for example, a license must be 
 obtained, the ceremony must be performed by a justice of the 
 peace or by someone authorized to perform marriages, and the 
 marriage must be recorded. In North Carolina, however, not 
 only must these formalities be complied with but the contract- 
 ing parties must present medical certificates showing that they 
 are in proper health, both physical and mental. In spite of 
 these statutes many states regard common-law marriages as 
 valid ; that is, a mere agreement between a man and woman to 
 live as husband and wife, followed by actual living together 
 as husband and wife. 
 
 No marriage is considered valid unless the parties are capable Limitations 
 
 rx^, 1- • • n on marriage 
 
 of entermg such a status. These limitations are generally pre- 
 scribed by statute and vary in different states. In general, the 
 parties must be single — that is, not possessing another husband 
 or wife; they must be of the age prescribed by the state 
 statute; they must not be related within the degrees of rela- 
 tionship forbidden by the state; they must have sufficient 
 mental capacity. 
 
 The contract of marriage differs from other contracts. All Termination 
 
 , • 11 .1 i XT , of marriage 
 
 Other contracts may be terminated by mutual consent. Not so 
 marriage. The contract of marriage sets up a status which can 
 only be terminated by the death of the husband or wife or by 
 judicial separation. In all the states except North Carolina 
 termination of marriage is allowed by judicial procedure —
 
 2 62 STATE AND MUNICIPAL GOVERNMENT 
 
 divorce. The causes for divorce vary in different states. In 
 New York, for example, absolute divorce is granted only on the 
 ground of adultery. In other states cruelty, desertion, drunk- 
 enness, and even incompatibility are recognized as causes for 
 divorce. Different states require varying periods of residence 
 within the state in order to obtain a divorce under the laws 
 of the state. These periods differ from six months in Idaho and 
 Nevada to from three to five years in Massachusetts. As a 
 result of these variations in the state laws it is possible for one 
 party to obtain a residence within a state having lax divorce 
 laws and divorce the other party. Such divorces, however, are 
 not always recognized within the state where the parties 
 actually live. 
 Common- According to the English common law the wife has no sepa- 
 
 crf^usba^nd° ^^^e existence apart from the husband. She can have no 
 and wife, separate property and is in every way subject to the control 
 and children of her husband. In turn, the husband is liable for all her debts 
 and torts. This common-law practice has been greatly miti- 
 gated, both by English statutes and by the laws of the various 
 states. Today it may be said that in certain states the status 
 of a married woman is more privileged than that of her hus- 
 band. She may possess property, both real and personal, apart 
 from her husband, who, however, remains liable for her debts 
 and torts. Either the husband or wife may sue a third party 
 for a tort which deprives one of them of the society or services 
 of the other. In like manner the relationship between the 
 parents and children originally set up by English common law 
 has been greatly mitigated. Parents still may control the lives 
 of their children, but subject to most strict regulation by the 
 states. Parents or guardians, moreover, may gain damages 
 from other parties for torts which their children have suffered, 
 
 7. Partnerships and Corporations 
 
 Partnerships A partnership is a contract between two or more persons to 
 do business as individuals on joint, undivided account. In a 
 partnership every member of the firm, unless restricted by some 
 agreement, is entitled to full management and control of the
 
 THE LEGAL SYSTEM OF THE STATES 263 
 
 business and property of the partnership. One partner can do 
 nothing without the agreement of the other partners, and one 
 partner may prevent any action by the other partner or part- 
 ners. In case the partners fail to agree the only remedy 
 is a dissolution of the partnership. All partners are liable 
 to the full extent of their property for the torts and debts 
 of the partnership, and any person, although not formally 
 admitted to the partnership, whose relations to it may give 
 other persons reason to believe that he is a partner may also 
 be held liable. 
 
 In most states the law permits partnerships to be established Limited 
 by which the liability of the members is limited to some specific ^^^ ^^^^ '^ 
 amount. In such cases the fact must be notified to the public 
 by publication in the papers and the use of the word "limited" 
 with the name of the firm in all advertising matter and in 
 correspondence. 
 
 Partnerships generally exist for pecuniary gain. Voluntary voluntary 
 associations are unincorporated groups of people who are joined ^^5°"**!°''^ 
 together not for the purpose of gain but for the promotion 
 of some specific purpose. Common examples of this type of 
 association are clubs, churches, and literary and charitable 
 organizations. All members of the association who sign the 
 constitution or by-laws are held liable for the torts and debts 
 of the association incurred by the officers designated by the 
 constitution to incur these debts. Where no such designa- 
 tion is made, all members of the association who favor the 
 incurring of a liability or the performance of an act are held 
 responsible for it. 
 
 A joint-stock company is an unincorporated association joint-stock 
 organized for business purposes. It differs from a partnership *^°™P^°y 
 in that the stock is transferable at the will of the members. 
 In a partnership no new partner can be admitted without the 
 consent of the other partners. Members of joint-stock com- 
 panies have the same liabilities as members of partnerships. 
 
 A corporation is a body of natural persons established by corpora- 
 law, usually for some specific purpose, and continued by a 
 succession of members. A corporation differs from a partner- 
 ship, a voluntary association, and a joint-stock company in that
 
 2 64 STATE AND MUNICIPAL GOVERNMENT 
 
 it possesses a distinct legal entity apart from the entity of its 
 members. That is, a corporation is a legal personality. It 
 may sue and be sued, contract debts, commit torts, incur 
 liabilities, and suffer wrongs like any other legal person and 
 apart from its members. Being an artificial person, only 
 bodies having some degree of sovereignty may create cor- 
 porations ; that is, only the federal government or the gov- 
 ernments of the states. Originally every corporation was 
 created by a special legislative act. Many corporations are 
 still so created. The more common practice, however, is 
 for the legislature to pass certain general laws allowing per- 
 sons under specific conditions and for specific purposes to 
 form themselves into a corporation. When these require- 
 ments have been complied with a charter is issued by the 
 proper state authority, and the corporation becomes a legal 
 entity. According to Chief Justice JMarshalFs decision in the 
 Dartmouth College case, a charter of incorporation is a contract, 
 and thus no state may pass a law "violating the obligation of 
 this contract"; that is, changing it by amendment or resuming 
 it in any way. To avoid the complications thus arising, prac- 
 tically all the constitutions of the states declare that no charter 
 shall be issued to any corporation unless the right is specifically 
 reserved to the legislature to amend, revise, or resume such a 
 charter. Membership in a corporation is generally obtained by 
 the purchase of one or more shares of the corporation. The 
 shares are known as stock in the corporation, and the holders 
 as stockholders. A stockholder of a corporation has the right 
 of ownership of the share or shares in the company's property 
 to which his certificate entitles him. He furthermore has the 
 right to cast a vote for each share he owns in electing the 
 officers or management of the corporation or in the determina- 
 tion of such affairs as are submitted to the stockholders. Gen- 
 erally the stockholder is liable only for the face value of his 
 stock certificate; that is, he has no further liability beyond the 
 amount of money he has paid into the corporation. In some 
 cases, however, particularly in banks, stockholders are liable 
 for twice the face value of their certificates. This is called 
 double liability. The affairs of a corporation are generally
 
 THE LEGAL SYSTEM OF THE STATES 265 
 
 managed by a board of directors, chosen by the stockholders, 
 or a board of trustees. This board, in turn, elects certain execu- 
 tive officers, who carry out the policies of the corporation under 
 the supervision of the board of directors. Corporations may 
 exist either in perpetuity (that is, without time limitation) or 
 they may be limited by statute. 
 
 8. Remedies 
 
 As has been seen, law concerns itself with the creation and substantive 
 definition of legal rights and with the provision for the enforce- tive law*^ 
 ment of these rights and the redress of wrongs. Substantive 
 law is concerned with the determination of legal rights, adjec- 
 tive law with the enforcement of remedies when the rights of 
 substantive law are violated. These remedies may be either 
 extra-legal or legal remedies. 
 
 Extra-legal remedies are of three sorts : ( i ) Those applied Extra-iegai 
 by the sole act of the injured person. This class includes '^^^^ ^^^ 
 self-defense, which has already been discussed, and which 
 means that the injured party whose right is threatened may 
 repel the anticipated wrong. He may defend his person, or his 
 wife and children, or even his property. In the defense of his 
 life he may use any amount of force, even to the extent of 
 taking the life of another person, but in the defense of property 
 human life may not be taken. (2) Another extra-legal remedy 
 is that of recaption, which means the retaking of persons and 
 personal property by those who have a legal right to do it. A 
 similar right with regard to real property is that of entry, by 
 which a person wrongfully excluded from his property may 
 enter and take possession of it. Neither recaption nor entry 
 may be used in such a way as to disturb the public peace. 
 Another extra-legal remedy is the abatement of a nuisance, 
 which has already been described. (3) The last extra-legal 
 remedy is distress, by which the injured person takes a per- 
 sonal chattel belonging to the wrongdoer. In this country it 
 is generally confined to two cases — that of a landlord taking 
 property for unpaid rent, and the taking of cattle which have 
 strayed and committed damage upon the land of another.
 
 2 66 STATE AND MUNICIPAL GOVERNMENT 
 
 Legal 
 remedies 
 
 Ordinary 
 common- 
 law 
 remedies 
 
 Extraordi- 
 nary com- 
 mon-law 
 remedies 
 Mandamus 
 
 Quo warranto 
 
 Habeas 
 Corpus 
 
 Prohibition 
 
 Legal remedies may be divided into penal and civil remedies. 
 Penal remedies are those applied by the state for the punish- 
 ment of a crime, and usually take the form of fines, imprison- 
 ment, or capital punishment. Civil remedies are of two sorts : 
 those granted by the courts of common law and those granted 
 by procedure in equity. 
 
 Common-law remedies in general are of two kinds — restora- 
 tion and damages. Restoration is the means by which a piece 
 of property or a right is restored to the owner in pursuance 
 with a judgment of a court of law. In many instances the 
 property or right cannot be restored in the form it was taken. 
 Therefore the court may award a monetary compensation. 
 This compensation is known as damages. Damages may be 
 nominal; that is, a small sum, designed to be a public recog- 
 nition of the right claimed. These are awarded when there is 
 no appreciable loss. Compensatory damages are designed to 
 compensate or to make good the loss or wrong suffered. These 
 are awarded where an appreciable loss has been suffered. It 
 is extremely difficult to estimate exactly the pecuniary loss in 
 many instances, and a great mass of law exists upon the meas- 
 ure of such damages. Exemplary or punitive damages are 
 money payments which are awarded as punishment for the 
 wrongdoer where malice is evident. 
 
 There are four classes of legal writs issued by the courts. The 
 writ of mandamus is an order issued by a court commanding an 
 officer, a corporation, or a court to perform some legal, minis- 
 terial duty, or a duty not involving discretion. An information 
 in the nature of a quo warranto is a writ issued by the court in 
 order to compel a corporation or an officer to show by what 
 authority certain functions are performed. It is used to test 
 the validity of incorporations and of elections, respectively. The 
 writ of habeas corpus may be issued by a common-law court, 
 directing that a person in confinement be brought before the 
 court so that the legality of his commitment may be passed 
 upon. A writ of prohibition may be issued by a superior court 
 to an inferior court prohibiting the inferior court from proceed- 
 ing. This is generally issued to protect the jurisdiction of 
 the court.
 
 THE LEGAL SYSTEM OF THE STATES 267 
 
 As has been shown, the purpose of equity is to accomphsh Equitable 
 justice by supplementing the inadequate rights recognized or 
 remedies allowed by common-law courts. The ordinary means injimction 
 by which this is done is through the writ of injunction. A writ 
 of injunction is an order issuing from a court having equity 
 jurisdiction and commanding a person to do some act or to 
 refrain from doing some act. In the first instance it is known 
 as a mandatory injunction; in the second, as a prohibitory 
 injunction. It should be remembered that equity may not 
 be resorted to unless it can be shown that legal remedies are 
 inadequate.
 
 CHAPTER XIV 
 THE JUDICIAL SYSTEM OF THE STATES 
 
 Importance State courts administer the law of the state. By that is 
 
 and func- i. i i 
 
 tions of meant the legal system described in the previous chapter. 
 
 state courts jj^jg includes both equity and law, both civil and criminal law, 
 both common and statute law. The state courts are thus the 
 most important legal agencies in the life of a citizen. His 
 entire domestic relations are determined by state law and ad- 
 ministered by the state courts. The right and use of his prop- 
 erty are determined by state law and protected by state courts. 
 Only when a state attempts to deprive a citizen of his property 
 without due process of law, when a person violates a federal 
 statute, or when for some reason — such as diverse citizenship 
 — one of the parties has a right to ask it, do the federal courts 
 intervene. The state courts administer the police laws of the 
 state. The state courts are the ones to which a citizen ordinarily 
 appeals when he feels that he is wronged in any right. The state 
 courts enforce his business claims in the commercial relations 
 which he maintains. It is true that Congress through the inter- 
 state commerce clause of the Federal Constitution is passing 
 more and more laws for the regulation of interstate and foreign 
 commerce, yet generally a man appeals to his state courts for 
 the enforcement of his personal commercial rights and obliga- 
 tions. The state courts administer all questions of inheritance 
 and estates. Finally, the criminal law, under which every citizen 
 lives, is administered in a large part by the state courts. In gen- 
 eral, it may be said that a citizen appears before the federal 
 courts only when he seeks the protection of or is found violating 
 a federal law, such as the act creating the Interstate Commerce 
 Commission, the Federal Trade Commission or regulations 
 thereunder, the Pure Food and Drugs Act, or the Volstead Act. 
 In addition, when a citizen feels that the law of the state or 
 
 268
 
 THE JUDICIAL SYSTEM OF THE STATES 269 
 
 the action of the state court has deprived him of some right of 
 his Hberty, life, or property, without due process of law, or 
 when the obligation of some contract has been violated, he 
 may appeal from the highest court of his state to the federal 
 Supreme Court. Perhaps most important of all, should a 
 citizen of one state be involved in a controversy with a citizen 
 of another state the case may be tried by the federal courts. 
 Thus, since the greater part of the life of a citizen is determined 
 by state law, the state courts are the ones with which he is 
 most concerned. 
 
 Classification of State Courts 
 
 The structure of the courts in each state is entirely under The judicial 
 the control of the citizens of the state. The Federal Constitu- tC states . 
 tion makes no provision for any state judicial system. A sys- ^y^st™t°^^ 
 tem of courts, however, is assumed, and this assumption is but constitu- 
 
 ' ' ' tions and 
 
 an example of the federal structure of the national government, statutes: 
 The Constitution and the acts of Congress recognize the exist- 
 ence of state courts and provide for appeals from them, but 
 each state is left to determine its own system. Thus, there is 
 little uniformity to be found in the judicial systems of the 
 various states. The courts in the different states bear different 
 names, and frequently courts of the same name have different 
 jurisdictions. Nevertheless, all the states have, under various 
 names, a system of at least four courts.^ 
 
 In every state justices of the peace have jurisdiction over (o justices 
 petty offenses both civil and criminal. In every instance the ° ^ ^^^^ 
 jurisdiction of these justices is strictly limited — in civil affairs 
 to cases involving only a small amount of property, rarely more 
 than fifty or one hundred dollars ; in criminal cases to the dis- 
 position of petty misdemeanors, punishable by fines and, per- 
 haps, by short terms of imprisonment. Justices of the peace hear 
 cases without the assistance of a jury; hence appeal may be 
 taken to a higher court with a jury. These justices of the peace, 
 moreover, are the officials before whom persons charged with 
 serious crimes and felonies are brought. Although the justice 
 
 iSee Simeon E. Baldwin, The American Judiciary, chap. viii.
 
 2 70 STATE AND MUNICIPAL GOVERNMENT 
 
 [Municipal 
 courts] 
 
 (2) Inter- 
 mediate 
 courts 
 
 has no right to make final disposition of the case, he may dis- 
 charge or commit the accused to prison to await the action of 
 a higher court. In cases not involving murder he may release 
 the accused on bail. Many writers have regarded these justices 
 of the peace as the weakest part of the judicial system. Fre- 
 quently they are ignorant of the law. Occasionally they have 
 been found to be guilty of favoritism and graft. They have one 
 advantage, however, in the fact that although they may be 
 ignorant of the law, they generally know the suitors before 
 them. Although they may fail at times to administer the law, 
 they generally administer justice. 
 
 Special courts are established in towns and cities. These 
 courts are presided over by a justice of the peace or a judge and 
 provided with a clerk. Their jurisdiction is confined to petty 
 cases in civil affairs and to the punishment of misdemeanors 
 arising from the violation not simply of the state statutes but 
 of the municipal ordinances. These courts are of greatest im- 
 portance, not because of the amount involved in the cases or 
 the seriousness of the prosecutions brought before them but be- 
 cause they are the courts with which the poor, the ignorant, and 
 the unfortunate first come in contact. It is from these courts 
 that the immigrants and foreigners get their first and perhaps 
 sole idea of justice. A wise and sympathetic justice of the peace 
 or municipal judge may frequently, by his disposition of the 
 case before him, accomplish more than the penal or reformatory 
 agencies of the state could possibly do. 
 
 In every state there is a court above the justice of the peace 
 to which appeals may be carried and which has generally un- 
 limited jurisdiction both in criminal and civil affairs. This court 
 is variously named the county court, the district court, the cir- 
 cuit court, or the superior court. By whatever name the court 
 is called, its characteristics are everywhere the same. It is 
 presided over by a judge, provided with a clerk, and has a 
 sheriff and his subordinates to enforce its decree. It is the 
 court before which the grand jury is impaneled, and it is the 
 court to which the grand jury presents its indictments. Deter- 
 mination of matters of fact are made not by the judge but by 
 the petit jury. This court generally has, by means of this
 
 THE JUDICIAL SYSTEM OF THE STATES 271 
 
 jury, the final determination of all questions of fact. In some 
 states this court is limited in its jurisdiction over the most 
 serious crimes, which are tried before a special court. 
 
 Originally in the United States, particularly in the South, (county 
 the justices of the quarter sessions acted as a county court. '^'^^ *■' 
 This court had both judicial and administrative functions. It 
 not only heard cases in law but was charged with the super- 
 vision of county affairs, particularly with the maintenance of 
 roads and bridges, the supervision of the jail, and the care of 
 the county poor. In most states the administrative functions 
 of this court have been vested in county supervisors or adminis- 
 trative boards.^ In Kentucky, Tennessee, and Arkansas, how- 
 ever, the county-court justices continue to exercise both judicial 
 and administrative power. In Missouri and West Virginia the 
 county courts have no judicial power, and in Vermont the ad- 
 ministrative duties of the county commissioners are performed 
 by assistant judges of the county court. 
 
 All states have special courts dealing with the proving of (3) Probate 
 
 courts 
 
 wills and the administration of estates and, in some states, with 
 certain matrimonial questions. In general there is a probate 
 court for every county in the state, and in the course of a 
 generation the whole personal and real property of all the citi- 
 zens must pass through this court. The value of the estate 
 must be declared and its disposition made according either 
 to common or statutory law or to the will and testament of 
 the deceased. 
 
 Every state has an appellate court, sometimes more than one. (4) Appei- 
 In every state, however, there is a court which has the final 
 jurisdiction on questions of law. These courts are variously 
 designated as supreme courts or courts of appeal. In some 
 states there are found both supreme courts and courts of 
 appeal, which gives to the citizens a double appeal. The courts 
 of final adjudication are not engaged in the determination of 
 facts, but in the examination of whether the law and the rights 
 of the litigants as determined by the constitution and the law 
 have been properly guarded. Questions of procedure, of evi- 
 dence, and of interpretation are presented before this court. It 
 
 ^See pages 325-326. 
 
 late courts
 
 2 72 STATE AND MUNICIPAL GOVERNMENT 
 
 Special 
 courts 
 
 The juve- 
 nile court 
 
 has little original jurisdiction, but acts upon appeals resulting 
 from writs of error, of prohibition, and the like. This court is 
 the final interpreter of state statutes and state constitutions un- 
 less they are held to conflict with the Federal Constitution or an 
 act of Congress. Until 1916^ there was no way of questioning 
 the decision of these courts if a state law was declared un- 
 constitutional by reason of its conflict with a federal statute 
 or the Federal Constitution. This resulted in divergent prac- 
 tices in the different states. Occasionally a law would be held 
 constitutional which the appellate courts of another state would 
 declare was in direct violation to the Federal Constitution. 
 In 19 1 6 this was remedied by allowing an appeal from the 
 appellate court to the United States Supreme Court in cases 
 where the state act had been declared to be in conflict with 
 the federal law or Constitution. 
 
 There are numerous special courts established in different 
 states. Some of the more interesting of these are the juvenile 
 court, the court of domestic relations, the land court, and 
 the small-claims courts.- 
 
 The idea of a juvenile court originated in South Australia 
 in 1890.^ At about the same time New York and jMassachu- 
 setts passed certain statutes providing for the separate hearing 
 of children's cases. In 1899 the juvenile court of Cook County, 
 Illinois, was established on the basis of a bill drawn by Judge 
 Harvey H. Hurd from the original plans of Dr. Hastings H. 
 Hart. In 1901 the Denver court was established and became 
 famous through the administration of Judge Ben B. Lindsey. 
 There are at present juvenile courts in more than half of 
 the states. 
 
 'See pases 275-276. 
 
 2 Some of these courts are well described by R. H. Smith, "Justice 
 and the Poor," Bulletin No. ij of the Carnegie Foundation for the 
 Advancement of Teaching;. 
 
 *See H. H. Hart, Preventive Treatment of Neglected Ciiildren, also 
 Juvenile Court Laws in the United States (summarized). Judge Ben B. 
 Lindsey 's "My Lesson from the Juvenile Court," in the Survey, Feb- 
 ruary s, iQio, pp. 652-656, is devoted entirely to this question. See the 
 Proceedings of the National Conference of Charities and Corrections, 
 the American Year Book for 1910, also Cyclopedia of American Govern- 
 ment, Vol. I, p. 500.
 
 THE JUDICIAL SYSTEM OF THE STATES 273 
 The purpose of the juvenile court is to care for (i) neglected Purpose and 
 
 , ., , , , r 7 1 r • • principles 
 
 children who are before the court because 01 some omission on of the ju- 
 the part of their parents, and (2) delinquent children— that ^emie court 
 is, those who have offended against the law. In general the 
 jurisdiction of this court is confined to children of sixteen years 
 of age or under, although in some states the court has jurisdic- 
 tion of children as old as eighteen. The creation of the court 
 was the acknowledgment of the duty of the state to protect and 
 aid the child and direct him along the lines of proper develop- 
 ment. With this in mind emphasis is laid upon the correction 
 of conditions responsible for the child's wrongdoing, rather 
 than upon the act of the child itself. The legal principles from 
 which the court derives its jurisdiction are found in the deci- 
 sions of the English chancellors in administering equity. From 
 time immemorial it has been held within the power of the state 
 to take from the supervision of the parent a neglected child, to 
 appoint guardians for it, and to make such guardians respon- 
 sible to the court. The modern laws with regard to juvenile 
 courts go one step further and give the courts jurisdiction not 
 simply of neglected or dependent children but of delinquent or 
 offending children. This is done simply by raising the age 
 below which a child shall not be treated as a criminal. Accord- 
 ing to this principle the juvenile offender is not subject to a 
 penalty for violation of the law, but may be compelled to 
 make compensation, to report to the court, to be put on pro- 
 bation and under the supervision of some officer or guardian. 
 As has been said, the theory aims to remedy conditions which 
 produce the neglected or delinquent child rather than to punish 
 him as an offender. Strictly, however, there'should be no appeal 
 from the equitable ruling of the judge to a higher court of law. 
 Practically, however, this is advisable. It not only gives the 
 parent, from whom the child may be taken, a right to ap- 
 peal, but it checks the danger of arbitrariness on the part of 
 the judge and probably leads to his greater and more sym- 
 pathetic consideration in cases where the custody of the child 
 is disturbed. 
 
 In all juvenile courts, and in those courts which provide for Procedure 
 the separate hearing of children's cases, a distinction is made
 
 2 74 STATE AND MUNICIPAL GOVERNMENT 
 
 Domestic- 
 relations 
 court 
 
 Small- 
 claims 
 courts 
 
 between the ordinary criminal court and the children's court. 
 In the best type of juvenile courts the ordinary paraphernalia 
 of the courtroom is dispensed with. No uniformed officers are 
 in attendance. The child meets the judge at a table and is 
 questioned by him. Every opportunity is given the child to 
 speak freely and without restraint, and, as Judge Lindsey has 
 recently shown, the confidence of the child should not be 
 abused by taking his testimony as a basis for criminal pro- 
 ceedings. To be effective a juvenile court must have a suf- 
 ficient number of probation officers and visitors who may 
 watch over the child and see that the directions or plans of 
 the court are carried out. In extreme instances, for example 
 where the parents have proved to be improper custodians of 
 the child, the court may appoint a temporary guardian who 
 shall act in loco parentis. 
 
 In an increasing number of cities special courts known as 
 courts of domestic relations have been established.^ The object 
 of these special courts is to give adequate and easy remedy in 
 cases involving domestic relations. The use of civil remedy for 
 the enforcement of separation allowances and the payment of 
 alimony has proved to be slow and expensive. Consequently 
 there is an increasing tendency to apply criminal remedies. 
 The deserted wife may apply for a warrant for her husband 
 and sue him criminally for nonsupport. If he is found guilty 
 he is sentenced. Not infrequently the husband is put on pro- 
 bation and obliged to pay each week a portion of his wages to 
 the probation officer for the benefit of his wife. The domestic- 
 relations courts are also making more and more use of the 
 principle of conciliation, attempting to settle the matrimonial 
 disputes before separation occurs. 
 
 Some of the states- have established what are known as 
 small-claims courts. These are generally branches of the 
 municipal courts in the more important cities and provide a 
 quick and easy method for the collection of small claims. Their 
 jurisdiction is generally limited to small sums not usually 
 
 iSce R. H. Smith, Justice and the Poor, pp. 73-81. 
 -Illinois, Kansas, Ohio, and OrcKon ; see R. H. Smith, Justice and 
 the Poor, pp. 41-60.
 
 THE JUDICIAL SYSTEM OF THE STATES 275 
 
 exceeding twenty-five dollars. The reason for the establishment 
 of these courts was a realization that in many cases the poor 
 were denied legal means to collect their claims because the 
 expense of court procedure often exceeded the amount of the 
 claim. In the small-claims court procedure is cheap and simple 
 and no lawyers are employed. 
 
 In some states a system of land registration has been adopted Land courts 
 and a special land court has been established for the determina- 
 tion of questions in connection with the administration of this 
 law. This court is highly technical and hears but one type of 
 case. It sits without a jury, and appeal generally lies to the 
 intermediate courts (district, circuit, superior) on questions of 
 fact and to the appellate court on questions of law. 
 
 In some of the large cities a special session of the police Nightcourts 
 court is held during the night. This is for the purpose of 
 disposing of petty offenses and of persons who are arrested 
 without cause. It struck a blow at professional bondsmen and 
 prevented the unjust retention of innocent persons in the 
 station house overnight. Elsewhere a special court is estab- women's 
 lished for the hearing and determination of offenses which ^°^^ ^ 
 women may have committed. 
 
 It should be reiterated that the courts of the states are Relation of 
 
 the St3.t6 
 
 not inferior to the federal courts. The state courts administer courts to 
 state law ; the federal courts, federal law. In administering courts*^^"^^^ 
 the law of the state the judgment of the state court is final 
 unless it can be shown that the law under which the state court 
 has acted, or its method of procedure, was contrary to some 
 provision of federal law or the Federal Constitution. In such 
 a case a system of appeal is provided. The process is rather 
 technical, but briefly is as follows: The judgment of a lower 
 state court can in no case be carried directly to the United 
 States courts. The United States court will not act until the 
 highest court in the state having jurisdiction has passed upon the 
 case. Until 19 16 an appeal could be taken from the highest court 
 of the state only in cases where a question had been raised in- 
 volving a federal right based upon the Constitution or treaty 
 and the decision of the state court was against such federal 
 right ; or where a state law had been questioned on the ground
 
 Amendment 
 
 276 STATE AND IMUXICIPAL GOVERNMENT 
 
 of its being in conflict with the Federal Constitution or an act of 
 Congress and the decision had been in favor of the state law. 
 This made it possible for the judiciary of the states to prevent 
 appeal to the federal court by declaring a state law unconstitu- 
 tional because of conflict with the federal law. As a result, in 
 some states certain state laws were declared unconstitutional 
 by the state courts, while in other states the constitutionality of 
 similar laws was upheld both by the state courts and the United 
 States Supreme Court. To remedy this Congress amended the 
 Judiciary Act in 191 6 and allowed appeals to be taken to the 
 United States Supreme Court even if the state court had de- 
 clared the state act unconstitutional. It is hoped that this will 
 remedy the divergences which formerly existed in the applica- 
 tion of the Federal Constitution and of acts of Congress to 
 state legislation. 
 The effect The Fourteenth Amendment to the Federal Constitution 
 Fourteenth greatly enhanced the appellate power of the Supreme Court 
 of the United States. Since no state may deprive its citizens 
 of life, liberty, or property without due process of law, and 
 since every state must grant equal protection of the laws to 
 all persons within its jurisdiction, the Supreme Court of the 
 United States is frequently called to sit in judgment upon state 
 legislation. It is a popular misapprehension that the federal 
 courts, acting under this power, very frequently reverse the 
 decisions of the state courts. It is true that this has been done 
 in certain notable instances which have attracted considerable 
 attention. In the vast number of instances, however, the court 
 has left to the state legislatures the determination of what was 
 wise and reasonable. Thus, in 191 1 Justice Harlan said: 
 ''Much may be done by a State under the police power which 
 many may regard as an unwise extension of governmental 
 authority. But the Federal courts have no power to over- 
 turn such legislation simply because they do not approve or 
 because they deem it unwise or inexpedient.'" So, also. Jus- 
 tice Holmes has said: "When a state legislature has declared 
 that, in its opinion, policy requires a certain measure, its action 
 
 ^Brodnax v. Missouri, 219 U. S. 285.
 
 THE JUDICIAL SYSTEM OF THE STATES 277 
 
 should not be disturbed by the courts under the 14th Amend- 
 ment, unless they can see clearly that there is no fair reason 
 for the law that would not require with equal force its extension 
 to others whom it leaves untouched."^ 
 
 The Structure of the Courts 
 I. The Judge 
 
 The judge of a court of law is a constant element found in The judge 
 every court. Without him there could be no court. The judge 
 presides at the trial of the case ; that is, the case is conducted 
 in his presence and according to his directions. He does more 
 than that — he applies the rules of law to the facts presented 
 to him. In cases of summary jurisdiction this means that he 
 hears the pleas, determines the facts himself, and gives the 
 award or sentence. Where the judge is sitting with a jury, 
 the jury determines the facts ^ and applies to these facts the 
 law as set forth in the instructions given by the judge of his 
 own motion or upon the request of counsel for the parties.^ 
 The law which the judge applies may consist of rules of equity, 
 of common law, or of statute law. These rules of law, however, 
 are applicable not alone to the final determination of facts, 
 either by the judge or the jury, but govern the entire procedure 
 of the case. Thus a very important part of the functions of a 
 judge is to see that the case is tried before him in accordance 
 with the rules of procedure which are determined by law. 
 This means that he must guard the rights of both the plaintiff 
 and the defendant, or, in criminal law, the right of the state 
 to prosecute and the right of the accused to present his defense. 
 Thus the judge is constantly required to rule upon the admis- 
 sibility of evidence and the methods employed by both sides 
 in stating their cases. 
 
 "^Missouri, Kansas, and Texas Railway Company v. May, 194 U. S. 267. 
 
 2 In some states the jury technically determines both the facts and 
 the law. 
 
 ^The jury may in either criminal or civil cases ask the judge for 
 further instructions on points of law involved.
 
 2 78 STATE AND MUNICIPAL GOVERNMENT 
 
 Method of In the colonies, as in England, the judges were appointed by 
 j^udges°^ the executive.^ With the Revolutionary movement, however, 
 and the revolt against the power of the executive, a more 
 democratic method of selecting the judges was introduced. In 
 some of the states the judges were chosen by the state legisla- 
 ture, and in 1812 Georgia was the first state to provide for 
 the popular election of any of the judges, while in 1832 
 Mississippi provided for the election of all her judges by direct 
 popular vote. Nevertheless some states (Massachusetts, for 
 example) still vest the appointment of all the judges in the 
 governor and council, and in other states — as in New Jer- 
 sey — the appointment of the judges of the higher courts is 
 in his hands. In the great majority of states, however, the 
 judges are elected by the people.- 
 Reiative The method of the selection of judges by popular election is 
 
 merits of , i • i r ^ • r • 
 
 the methods the most logical One from the pomt of view of popular sover- 
 (ifpopuia" eignty. It enables the electorate of a democratic state to con- 
 eiection j-j-ol immediately all departments of the government — the 
 cnt^ica^of^ lawmaking (that is, the legislature), the law-enforcing (that is, 
 thejudgeas ^^g executive), and the law-applying (that is, the judicial). 
 And in a democratically governed state the electorate should 
 have this power. Certain grave objections and qualifica- 
 tions to this statement must be made, however. Granting 
 that popular election is the logical method theoretically, it 
 can be shown that there are many practical objections to the 
 exercise of this power by the electorate. The judges differ 
 from most officials. In many instances their decisions are final 
 unless revoked by a constitutional amendment. Their decisions, 
 in many more instances, protect or punish the citizens of the 
 state in their liberty and property rights, and in countless cases 
 the decision of a judge may result in fine or imprisonment 
 
 'See JucIrc Learned Hand, "The Elective and Appointive Methods 
 of Selection of Judges," in Proceedings of the Academy of Political 
 Science, Vol. Ill, No. 2, pp. 82-92; Simeon E. Baldwin, The American 
 Judiciary, chap, xxii ; A. N. Holcombc, State Government in the United 
 States, p. 351; Bulletins for the Massachusetts Constitutional Conven- 
 tion, Vol. I, pp. 585-618, with references. 
 
 -In Rhode Island, South Carolina, Vermont, and Virginia the judges 
 of the higher courts arc chosen by the legislature.
 
 THE JUDICIAL SYSTEM OF THE STATES 279 
 
 or the award of damages. The judge is thus the most impor- 
 tant state official in the application of the law. Because of this 
 the judge, as an official, is subject to constant scrutiny and 
 criticism. To give satisfaction his acts must be beyond suspi- 
 cion of partiality and favoritism, whether personal, party, or 
 political. The electorate demands more of its judges than it 
 does of any other officer. 
 
 If the judges are chosen by popular election their selection [The eiecto- 
 is governed by the principles of other elections ; that is, the of the judge 
 judges must be candidates. As candidates they must be ^^t^f^"^* 
 nominated by the party machinery, working either through 
 conventions or direct primaries. The names of the judges as 
 candidates must appear upon the ticket and, in most states, 
 in the column devoted to the party. The judges will be selected 
 by the majority vote of the people, cast as the electorate gen- 
 erally casts its vote; that is, by marking the party column 
 or by marking more or less blindly the candidates which bear 
 certain party designations or labels. The attention of the elec- 
 tion ordinarily centers upon the executive or legislative candi- 
 dates for public office, and popular interest is seldom aroused 
 over the personal merits of the various candidates for judicial 
 offices. Thus, it happens that the electorate generally ratifies 
 the choice of the party managers for the judiciary. However 
 critical the people may be of the actions of a judge as an officer, 
 they are singularly careless in exercising their duty in the 
 choice of the candidates. 
 
 The effect of this carelessness of the electorate is greatly [influence 
 mitigated by the influence of the bar. Lawyers must try their °* ^^^ ^^""^ 
 cases before the judges. It is therefore to their interest as 
 well as to the interest of their clients that the judges should 
 at least be able and that they should be sufficiently versed in 
 law to make correct decisions which would not be reversed on 
 an appeal to higher courts. The bar, through its various asso- 
 ciations, therefore, frequently if not generally indorses certain 
 candidates for judicial office. The influence of the bar is felt 
 by party organizations and sometimes is conclusive with them. 
 Only rarely, where a corrupt political machine is all-powerful 
 or where a popular or demagogic candidate attains notoriety,
 
 2 8o STATE AND MUNICIPAL GOVERNMENT 
 
 can the indorsement of the bar associations be safely neglected. 
 This is only another way of saying that even in the case of 
 popular elections the electorate really delegates the choice of 
 their officers to some group. 
 
 (2) Election The selection of the judges by the legislature is open to 
 SSature even greater objections than is popular election. Once elected, 
 
 the legislature, for practical purposes, is not responsible to the 
 electorate so far as the choice of a judge is concerned. The 
 members of the legislature are chosen for general political con- 
 siderations on wide political issues and not solely for the pur- 
 pose of choosing the judges. They are the product of the party 
 machinery, and each member owes allegiance to the party. 
 Thus, by appeals to party loyalty the managers of the 
 party frequently force the choice of inefficient and even cor- 
 rupt judges. It was partly because of this that the demand for 
 popular election became so strong. It was felt, and rightly, 
 that the party leaders before the election would be more sus- 
 ceptible to good influences than the members of the legislature 
 after their election. 
 
 (3) Appoint- The selection of the judges by the governor has much to 
 gov^e^rnoV"^ commcnd it. It may be said that the governor is the product 
 with the Qf j^jjg party system, is chosen for political reasons on wide 
 
 consent of ir j j ^ 1 
 
 the council issues, and is susceptible to the control of the organization and 
 
 or senate , , . » n 1 • • . ir ^ ^i 
 
 the machinery. All this is true. Yet the governor occupies 
 
 such an important position and is so much in the public eye 
 .that his every act is subject to closer scrutiny and criticism 
 than are the acts of the hundreds of members of the legisla- 
 ture, A strong executive — that is, one with a wide appointing 
 power — carries an immense responsibility and thus is, in gen- 
 eral, unwilling or afraid to make poor appointments. iSIoreover, 
 it must be remembered that the same influences of the bar 
 associations are operative upon the governor as upon the party 
 leaders and perhaps with even greater effect. In every state 
 where the governor appoints the judg^, his nominees are sub- 
 ject to ratification by the council or senate. It is impossible 
 to estimate the effect of this. At times in certain states the 
 necessity for such confirmation may have prevented bad ap- 
 pointments. At times the governor may have been forced to
 
 THE JUDICIAL SYSTEM OF THE STATES 281 
 
 nominate a candidate the confirming body would accept. In 
 general, observers deprecate limitations of this sort upon the 
 governor's appointing power. ^ This does not mean that gover- 
 nors have not made poor appointments, but on the whole the 
 testimony is that the judges appointed by them are generally 
 of a higher type and of greater ability than those elected by 
 the people. 
 
 The terms for which the judges are chosen vary from a few Terms of 
 years to appointment for life. In IMassachusetts all the judges 
 are appointed by the governor for life. In Vermont, on the 
 other hand, the legislature elects the judges for two years. 
 The judges of the supreme court in Pennsylvania are chosen 
 by popular election for twenty-one years ; in New York for 
 fourteen ; in Illinois for nine. Perhaps the average judicial term 
 approximates seven years. In many states a distinction is 
 made between the judges of the higher courts and those of the 
 lower courts, the tenure of the judges for the higher courts 
 generally being longer. There is much to be said in favor of a 
 long judicial tenure. It is generally conceded that the bar 
 and litigants alike demand ability from their judges. This 
 ability comes from experience and practice, and the judges are 
 everywhere chosen from the practicing members of the bar. 
 Since the compensation of the judges is rarely equal to the 
 income which a first-rate practicing lawyer may obtain, lawyers 
 of ability naturally hesitate to abandon their practice for the 
 sake of a few years on the bench. Therefore, if they are elected 
 they are obliged to look ahead to reelection or to a return to an 
 active career with their clients scattered. Hence it is cus- 
 tomary for a judge once elected to seek reelection. This forces 
 him to undergo periodically the demands of the political ma- 
 chinery of the party. He must have satisfied not simply the 
 litigants before his court and the bar but the party managers 
 as well, and even after his nomination he has to run the risk 
 of defeat at election because his party upholds some political 
 issue totally unconnected with his service on the bench. Both 
 theoretically and practically it would seem that tenure during 
 good behavior is more to be desired than frequent elections. 
 
 iSee pages 139-143.
 
 2 82 STATE AND MUNICIPAL GOVERNMENT 
 
 Removal of Judges are removable by four different methods : election, 
 ("t^y ''address," impeachment, and recall. Where the judge is chosen 
 election jqj. ^ definite term he is subject to removal at the end of that 
 
 term through the election of another candidate. Thus, election 
 
 permits removal at certain definite periods. 
 
 (2) By "ad- In many states a judge, chosen for whatever term, may be 
 
 removed by the governor on the joint address or resolution of 
 both houses of the legislature. This method is to be sharply 
 distinguished from removal by impeachment, to be discussed 
 later. An address or joint resolution is a political act. It is 
 applied to judicial officers, not because they have committed 
 crimes or misdemeanors worthy of impeachment but because 
 their character, actions, or ability have failed to give satisfac- 
 tion. In some states an address may be passed by a mere 
 majority ; in others a higher majority is required. The gover- 
 nor in most states is not compelled to remove the incumbent 
 against whom the address is aimed, but he may do so. Much 
 can be said in favor of this method of removal. Few judges 
 are corrupt and few commit offenses worthy of impeachment. 
 More judges, however, fail to give satisfaction because of their 
 personality or lack of ability. These judges may hold their 
 positions as the result of executive appointment or election. 
 Their presence on the bench for short or long terms, however, 
 is unfortunate, and removal by address gives the executive a 
 method of rectifying previous errors. This method of removal 
 of judges, however, is seldom invoked. 
 
 (3) By im- Impeachment is, in theory, a judicial process. The lower 
 peac men j^^^gg ^f ^^le legislature brings charges against a judge that he 
 
 has been guilty of some crime or misdemeanor. The upper 
 house of the legislature, acting as a court, hears the evidence 
 against the judge (who is allowed to present evidence in his 
 own behalf) and finally, having heard the evidence, votes to 
 sustain or to dismiss the articles of impeachment. In theory 
 impeachment should not be sought against a judge unless he 
 is guilty of some serious offense. In some states, however, 
 where removal by address is not allowed, impeachment is the 
 only method by which a judge may be removed before his 
 term of office expires.
 
 THE JUDICIAL SYSTEM OF THE STATES 283 
 
 The recall of judges can be applied only in those states (4) By recall 
 where the judiciary is elected, and it has been adopted by only 
 a few,^ The method is the same as for the recall of any state 
 officer; namely, a petition and an election. 
 
 Theoretically there is much to be said both in favor and Merits 01 
 in opposition to the recall of judges. In principle a popular recai" 
 recall might be the means of keeping the courts in close har- 
 mony with the people, of insuring that the administration of 
 justice is in accord with public sentiment and that the judges 
 are the servants, not the masters, of the people. But there are 
 strong, equally theoretical objections to the popular recall of 
 judges. They, more than any other officers, should be beyond 
 the suspicion of political party or personal influence. Judges 
 should be protected from the waves of popular discontent and 
 should administer the laws irrespective of momentary criticism. 
 The remedy for the enforcement of a bad law or one with 
 which the people are not in sympathy lies not in the removal 
 of the judge, but in the amendment of the statutes. Moreover, 
 it can be demonstrated theoretically that election is not the 
 best means for obtaining a satisfactory judge, and thus the 
 recall would only accentuate the faults of the elective process. 
 The foregoing considerations, however, are largely theoretical. 
 The election of judges perhaps has generally produced a 
 judiciary satisfactory to the people of the states. Although the 
 recall of judges exists in four states, no state judge has ever 
 been recalled. Just because the recall of judges offers oppor- 
 tunities for weakening the judiciary, it must not be assumed 
 that these opportunities will be seized. Few political systems 
 reveal in actual operation either the theoretical advantages or 
 disadvantages which their proponents or critics find in them. 
 Much depends upon traditional methods by which the system 
 is worked. 
 
 A variant of the recall of judges is found in Colorado. The recall 
 This is the recall of judicial decisions." In that state, when decisions 
 the supreme court has declared a state law unconstitutional, a 
 stated number of voters may petition for a popular referendum 
 
 1 Arizona, California, Colorado, Kansas, Nevada, Orepon. 
 
 2 This has been declared unconstitutional, 198 Pac. 146, 150.
 
 2 84 STATE AND MUNICIPAL GOVERNMENT 
 
 upon the question of whether the law shall be enforced in 
 spite of the decision of the court. Little can be said for 
 this device. In the first place, it is applied not to the law 
 in general but to the decision of the court upon a particular 
 case, and another case might well arise in which the court 
 would reaffirm its decision contrary to the popular verdict, 
 holding that the cases were different. In the second place, 
 since 191 6 the Judiciary Act of the United States has been 
 amended so that decisions of state courts against the consti- 
 tutionality of state laws on the ground of their conflict with 
 the Federal Constitution are subject to appeal to the Supreme 
 Court of the United States. In case of a conflict between a 
 state law and a state constitution it would seem far wiser 
 and hardly more difficult to amend the constitution, thereby 
 establishing a general rule, than to recall a single decision. 
 
 2. The Clerk 
 
 The clerk All courts of record are provided with a clerk. He is purely 
 a ministerial officer and issues writs and legal processes accord- 
 ing to the statutes and is custodian of all the papers and records 
 of the cases coming before the courts. He is thus an offiser 
 of very great importance. Generally, for the intermediate 
 courts, he is elected by the people of the district or county. 
 In some states the judges may appoint the clerks of their 
 courts, particularly of the higher courts. Since he is a minis- 
 terial officer and his duties are of a highly technical and im- 
 portant nature involving no discretion, there would seem to 
 exist little reason for making him an elective officer. In some 
 states the clerk of the district or county court combines the 
 function of the county clerk with his judicial duties.^ 
 
 3. The Sheriff 
 
 The sheriff The sheriff is the executive officer of the county, and as such 
 his duties will later be discussed.- As judicial officers the sheriff 
 and his deputies are responsible for the maintenance of order 
 within the court, serve the writs and summons issued by the 
 
 ^See page 329. -See pages 327-329.
 
 THE JUDICIAL SYSTEM OF THE STATES 285 
 
 court and its clerk, and execute the sentences of the judge. In 
 civil cases the sheriff may seize and sell property to satisfy 
 the award of the court. 
 
 4. The Jury 
 
 The jury is an ancient instrument of English jurispru- The jury 
 dence. Trial by jury is considered the basis of Anglo-Saxon 
 justice. Not all the colonies adopted it in its English form, 
 but the institution has finally developed so that the system is 
 not very dissimilar to that of England. In criminal cases trial 
 by jury involves two steps : indictment by the grand jury and 
 trial by the petit jury. 
 
 The grand jury^ is a body of not less than thirteen nor more The grand 
 than twenty-three persons selected according to statute and 
 sworn by the court. It is the duty of the grand jury to inquire 
 as to the commission of crimes within the territorial district 
 for which it is chosen. In legal phraseology it makes inquest. 
 Once summoned, the grand jury may inquire into any matter 
 of public concern. It may summon before it any person or 
 officer for the purpose of obtaining information. Having heard 
 the evidence the grand jury makes a presentment; that is, it 
 presents to the court a bill of indictment or, more briefly, an indict- 
 indictment charging a person or persons with certain crimes 
 or misdemeanors. This indictment is the result of a majority 
 vote of the grand jury, which has heard the evidence but not 
 the defense. 
 
 The positive action of the grand jury is found in its power Positive 
 
 ^ 1 . 1 -J- action of the 
 
 to investigate any person or subject and to present an mdict- grand jury 
 ment. The grand jury is thus an important instrument in 
 popular self-government. The enforcement of the laws and their 
 application is not intrusted to any one officer, but to a group of 
 citizens of the district. Should the proper officials be negligent 
 in enforcing the law or in the performance of their duties the 
 grand jury may investigate their procedure and their actions. 
 Should there be evidence before the grand jury that the police are 
 not enforcing the laws and that crime is prevalent the grand jury 
 may present an indictment of the criminals and of the officers. 
 iSee G. E. Edwards, The Grand Jury.
 
 Negative 
 action of the 
 grand jury 
 
 Workings 
 of the 
 grand jury 
 
 286 STATE AND MUNICIPAL GOVERN]MENT 
 
 The grand jury also serves as a means of protection against 
 unjust or unnecessary prosecutions. No man may be put to 
 the expense and danger of a criminal trial by a jury unless 
 indicted by the grand jury, except in petty cases. This means 
 that a majority of a group of his neighbors, having heard the 
 evidence against him, thinks that it is likely that he may have 
 committed the crime. Indictment by the grand jury is thus 
 a great protection against the possible tyranny of the police or 
 prosecuting officers.^ 
 
 When the grand jury is summoned by the sheriff it takes its 
 seat in the courtroom and is sworn by the clerk of the court.- 
 The judge then charges the grand jury as to its rights and 
 duties, explaining very carefully that while it is in session it 
 has full power to summon before it any person and make in- 
 quest on any subject. The judge points out that the prosecut- 
 ing attorney will act with the grand jury as its adviser, but 
 that the grand jury need not be bound by his advice nor follow 
 his directions.^ The prosecuting attorney presents for the con- 
 sideration of the grand jury the cases which have been sent up 
 from the lower courts, either as the result of appeal or because 
 the determination of the case was beyond the jurisdiction of 
 the lower court. The jury hears the evidence which the police 
 and prosecuting attorney have gathered, examines the wit- 
 nesses, and then votes to indict or to dismiss the case. When 
 
 iln some states prosecution by information is allowable. Under such 
 procedure the prosecuting attorney may under oath initiate a prosecu- 
 tion. This power, however, is carefully limited by statute. 
 
 20ath taken by the grand jury in Massachusetts: "You as Grand 
 
 Jurors of this inquest for the body of this county of , do solemnly 
 
 swear that you will diligently inquire and true presentment make of all 
 such matters and things as shall be given you in charge. The Common- 
 wealth's counsel, your fellows, and your own, you shall keep secret; 
 you shall present no man for envy, hatred or malice; neither shall you 
 leave any man unprescntcd for love, fear, favor, affection, or hope of re- 
 ward, but you shall present things truly as they come to your knowledge, 
 according to the best of your understanding. SO HELP YOU GOD." 
 
 •'Within recent years a grand jury in one state made an extended 
 investigation upon the actions and conduct of the office of a prosecuting 
 attorney. For this purpose the governor of the state appointed a special 
 attorney to assist the grand jury.
 
 THE JUDICIAL SYSTEM OF THE STATES 287 
 
 it has completed its work the grand jury comes before the court 
 and presents the results of its action in the form of indict- 
 ments.^ If it reports to the court that it has completed its work 
 it may be dismissed, but the court has no power to dismiss 
 a grand jury of its own initiative, and the latter may continue 
 to make inquiry into evidence as long as it sees fit. 
 
 The petit jury, or trial jury, consists in most states of twelve The petit 
 men. These are chosen by lot from panels or lists of names ^""^^ 
 prepared in various ways and filed with the clerk of the court. 
 The clerk of the court draws the names of twelve jurors, who 
 take their seats in what is known as the jury box. In criminal 
 cases and, in some states, in civil cases both the prosecution 
 and the defense may "challenge" a juror; that is, claim that 
 he is unfitted to perform his function because of prejudice or 
 some other reason. In some jurisdictions the challenging of 
 jurors has been allowed to go to such an extent as to constitute 
 a scandal. The indictment of the grand jury in criminal affairs, 
 or the claims of the plaintiff in civil cases, is read to the jury. 
 The duty of the petit jury is to detei^mine the facts of a case. 
 Each side may present evidence to substantiate its claims, and 
 the jury, in secret, must weigh the evidence and determine 
 the facts in the form of a verdict (vere dictum). 
 
 The theory of jury trial rests upon the assumption that a Theory 
 man is entitled to be considered innocent and to the possession petit jury 
 of his life, liberty, and property unless twelve of his neighbors 
 (men chosen from the vicinage) are convinced that he is guilty 
 of some crime. The jury determines the facts ; that is, the 
 truth of the evidence against the defendant. That they are 
 able to do this rests upon the assumption that being persons 
 like the defendant they can understand and determine how an 
 ordinary man would act under similar circumstances. 
 
 Trial by jury is often criticized. Cases may be cited where Criticism of 
 passion or sentiment has swayed the jury and verdicts have been system 
 brought in which shocked the community. Instances, moreover, 
 are not wanting where fraud and crime have been suspected 
 and even proved and where juries have been tampered with. 
 
 lAn indictment against an accused person is sometimes known as a 
 "true bill."
 
 288 STATE AND MUNICIPAL GOVERNMENT 
 
 Actual 
 working of 
 the jury 
 system 
 
 In some quarters it is felt that the juries are too lenient and 
 refuse to convict criminals about whose guilt the community 
 seems to have little doubt. Nevertheless, on the whole, the jury 
 system is regarded as a success. The lawyers who try cases 
 before a jury, and even the prosecutors who attempt to con- 
 vict the violators of laws, agree that it "works substantial 
 justice."^ But this is not the real question. Theoretically 
 the jury should not "work substantial justice," but should 
 decide upon the truth of the facts submitted to it. The jury 
 is an institution for the determination of facts irrespective of 
 the consequences which may result from their decision. The 
 laws may be unwise ; they may be contrary to public senti- 
 ment ; but it is the function of the jury not to enforce the law 
 in accordance with popular sentiment but to pass upon the 
 truth or falsity of the evidence before it. When that is done 
 its duty is complete. A jury should not be concerned with the 
 making of the law, which is the function of the legislature, nor 
 with the application of the sentence, which is the function 
 of the judge. 
 
 Very frequently, however, juries are not governed by these 
 theoretical rules. They attempt to do substantial justice ; that 
 is, to bring in verdicts not only in accordance with their oaths 
 but in accordance with the popular demand. Too often they 
 see the facts colored by the passion, sympathy, or prejudice of 
 the time. In so doing they violate the principles and theory 
 of jury trial, but they give satisfaction to the community. 
 The statute books contain many laws of which popular opinion 
 does not approve. There are many other laws, accepted in 
 theory, whose application is not generally desired by certain 
 classes. It is difficult to get convictions on cases under these 
 laws. The jurors instinctively feel that they themselves might 
 or do violate such laws, and they frequently refuse to be con- 
 fined to the simple fact of the determination of the evidence. 
 They try to do justice. Again, the jurors frequently have in 
 mind the penalty prescribed by law, and, usurping the functions 
 of the judge, they refuse to convict for an offense bearing a 
 range of severe penalties, but convict for an offense where the 
 
 iSec Arthur Train, The Prisoner at the Bar, chap, xi, "The Jury."
 
 THE JUDICIAL SYSTEM OF THE STATES 289 
 
 penalties are less severe. In other cases, where the jurors rep- 
 resenting the popular opinion are generally agreed that the 
 offense is worthy of severe punishment, they may be all too 
 ready to see the facts in a light unfavorable to the accused ; 
 thus, in burglary and arson and robbery it is comparatively 
 easy for a prosecutor to obtain conviction. It is far more 
 difficult, however, to obtain a conviction for the crime of 
 murder in the first degree, because in most states the penalty 
 prescribed is death, and juries are loth to bring in a verdict 
 which requires the judge to sentence the accused to death. 
 This greatly weakens not merely the enforcement of law but 
 the administration of justice. History shows that the certainty 
 of conviction, rather than the severity of the penalty, is the 
 greatest deterrent to crime.^ 
 
 In spite of these criticisms and in spite of certain flagrant Merits of 
 instances of the miscarriage of justice, the jury system gives system^ 
 satisfaction. It is rightly regarded as the greatest bulwark 
 against tyranny and injustice. Although its weakness may, 
 perhaps, be demonstrated in the escape of certain guilty per- 
 sons, society is better satisfied, on the whole, to allow these to 
 go unpunished than to make it possible or likely that the inno- 
 cent should suffer. The grand jury and the petit jury may be 
 regarded from two points of view — as agents of the court to 
 secure the enforcement of the laws and as agents of society to 
 insure or protect the rights of the citizens. This last considera- 
 tion will be discussed later.- 
 
 5. The Prosecuting Attorney 
 
 The prosecuting attorney, commonwealth's attorney, state's The 
 attorney, district attorney, county attorney, or public prosecutor, attorney °^ 
 as he is variously called, is a county and state officer. As such he 
 has been mentioned in discussing the enforcement of state laws^ 
 and will be further discussed in describing county government.* 
 The prosecuting attorney, however, is a quasi-judicial officer, 
 
 1 Judges in some states have the power to set aside findings of juries 
 in civil cases or convictions in criminal cases as contrary to the law and 
 evidence, and to order a new trial. 
 
 2See pages 304-305. ^See page 152. *See pages 326-327.
 
 2 90 STATE AND MUNICIPAL GOVERNMENT 
 
 and as such is a part of the judicial system of the state. In 
 civil affairs the county attorney may in some states conduct 
 suits in which the county is involved, but the greater part of 
 his duties is connected not with civil but with criminal cases. 
 He makes a preliminary investigation of crime with the police 
 and detectives of the state or county and prepares the cases 
 for the grand jur>'. Although the grand jury may hold a general 
 inquest concerning all matters in its district, as a matter of fact 
 it generally confines itself to the consideration of cases prepared 
 for it by the district attorney. It is thus of vital importance 
 for the good order of the community that the district attorney 
 should be an upright, able, and far-seeing officer. The district 
 attorney meets with the grand jury and acts as its adviser. He 
 thus assists in the framing of the indictments presented. In 
 some states (and formerly in all states) this is a matter of vital 
 importance, since the court procedure required an indictment 
 in language too technical for most laymen. After the grand 
 jury has indicted an offender the district attorney is intrusted 
 with the prosecution of the case. It should be his function not 
 to attempt to secure a conviction but to obtain justice. A 
 prosecuting officer thus becomes a judicial officer in his attempt 
 not simply to win the case but to do justice. Under certain 
 circumstances the district attorney may, with the assent of the 
 court, refuse to prosecute on the indictment presented by the 
 grand jury. This power of nolle prosequi should be rarely 
 used, and in any case is used only with the assent of the court. 
 The district attorney, however, has considerable latitude as to 
 when the case should be prosecuted and may postpone it 
 until another session of the court, releasing the accused on bail. 
 Cases are not unknown where an attorney has consented to 
 successive postponings until the witnesses against the accused 
 have become unavailable and the case has thus failed. The 
 prosecuting attorney, moreover, is generally consulted by the 
 governor and pardoning board if an appeal is made for execu- 
 tive clemency and pardon. In some states his recommendations 
 carry great weight.
 
 CHAPTER XV 
 
 THE PROCEDURE OF THE COURTS 
 
 I. Criminal Cases 
 
 There are eight steps which are ordinarily followed in a criminal 
 criminal trial. The first step is the apprehension of the de- (i) Arrest 
 fendant. This is known as the arrest. Arrests may be made 
 by anyone, either with or without a warrant. A warrant is a 
 writ issued by a justice of the peace to an officer or private citi- 
 zen commanding him to apprehend the defendant and bring him 
 into court. An arrest may be made by a private citizen when 
 a crime of any sort has been committed within his presence. 
 Either a private citizen or an officer may arrest a person who 
 has committed a felony whether in his presence or not, but it 
 is of vital importance that a felony should have actually been 
 committed. If not, and a private citizen attempts to arrest 
 another, he may be prosecuted for false arrest. However, if a 
 felony has been committed, an officer may arrest anyone 
 whom he has reasonable ground to believe has committed it. 
 This is the sole distinction between the right of a private citizen 
 and of an officer to make arrests. Practically, however, an 
 officer is employed and paid to make arrests and to detect and 
 prevent the commission of crimes, while a private citizen is 
 not. Nevertheless, if a crime is committed in the presence of a 
 private citizen, the citizen must take some steps either to 
 prevent the crime or to apprehend the criminal ; otherwise 
 he may be regarded as an accomplice. The extent to which 
 he should act depends upon circumstances and is generally 
 satisfied by a report to the police authorities. 
 
 Commitment is an act of a justice or court in sending the (2)commit- 
 prisoner to a place where he may be detained until he is tail 
 released or removed by order of the court. Since justices of 
 the peace and courts of the lowest order have only limited 
 
 291
 
 292 STATE AND MUNICIPAL GOVERNMENT 
 
 [Bail] 
 
 (3) The ac- 
 cusation 
 
 jurisdiction over petty offenses, their function is to hold a pre- 
 liminary hearing and to commit the accused for safe-keeping 
 until his case may be heard before a higher court. 
 
 All states provide that prisoners accused of a crime other 
 than the most serious may be released upon bail pending the de- 
 termination of their cases. The justice of the peace or the judge 
 of the lowest court and in some states bail commissioners may 
 determine the amount of security which they will require for a 
 prisoner's appearance at the time and place of the meeting of 
 the higher court. In some states there have been communities 
 where this function has been abused. Accused persons have been 
 released upon their own recognizance or the bail has been fixed 
 at an amount which would not deter the prisoner or his security 
 from forfeiting the bail and allowing the prisoner to escape. 
 
 Accusation may take one of two forms — either indictment 
 by the grand jury or information by the prosecuting officer. 
 Both of these have been described in the preceding chapter. 
 In either case the government accuses the prisoner in open 
 court of the offense for which he has been arrested and for 
 which he is to be tried. 
 
 The prisoner is then arraigned (that is, he is called to the 
 bar of the court), the indictment or information is read to him, 
 and he is asked whether he is guilty or not guilty. If he pleads 
 guilty there is no trial. The prisoner or his attorney may make 
 certain pleas to the judge for clemency, and the prosecuting 
 officer may inform the judge of the prisoner's record and the 
 circumstances of the crime. If the plea of not guilty is made 
 the case goes to trial. 
 
 The first step in a criminal trial, after the plea has been 
 entered, is the selection of the jury. The clerk of the court 
 tion of jury jraws by lot certain names from the jury panel. In some states 
 both the prosecution and the defense have the right to examine 
 or question the fitness of the jurors for the particular case. 
 As a result of this examination certain jurors may be excused 
 because they have shown bias, prejudice, or other evidences of 
 being unfit to try the case. In all states both the prosecution 
 and (he defense are allowed a certain number of peremptory 
 challenges. This means that they may reject a certain number 
 
 (4) The ar- 
 raignment 
 and plea 
 
 (5) The 
 trial: 
 (a) Selec
 
 THE PROCEDURE OF THE COURTS 293 
 
 of jurors without assigning any cause. In some jurisdictions 
 the selection of a jury, particularly for an important case, is a 
 long and tedious process. The defense apparently seeks to 
 obtain not jurors of average intelligence, but jurors on whose 
 feelings or emotions it may work. 
 
 It is sometimes customary, though not always essential, for (6) opening 
 
 1 • t • 1 • r 1 • • • the case 
 
 each side to give an outhne of what it is going to attempt 
 to prove. This is for the benefit of the jury in order that 
 it may intelligently follow the testimony and the evidence 
 presented to it. 
 
 The prosecution then presents evidence to substantiate the (c) Produc- 
 accusation of the indictment. This may be in the nature of testimony 
 ''exhibits" (that is, documents, photographs, and inanimate 
 things) or the oral testimony of witnesses. The witnesses who 
 are called to give their evidence are subject to direct examina- 
 tion ; that is, questioning by the prosecution in order that they 
 may clearly present to the jury the facts to which they testify. 
 The rules governing their evidence are highly technical, but 
 in general a witness is allowed to testify only to those facts he 
 has seen or knows. After the direct examination comes the 
 cross-examination. In this the counsel for the defendant ques- 
 tions the witness concerning the things to which he has testified 
 on direct examination. He may attempt to cause the witness 
 to contradict himself and to show the jury that he is not a 
 credible witness or not to be believed. In general, however, 
 the cross-examination must be confined to matters testified on 
 direct examination. The witness may be subject to a redirect 
 examination and a re-cross-examination. 
 
 After all the testimony has been presented by both sides (d) The 
 arguments are made. Both the prosecuting officer and the ^'^^™^° 
 attorney for the defendant review the evidence which has been 
 presented and arrange it in such a manner as may convince 
 the jury of the guilt or innocence of the defendant. 
 
 The judge then charges the jury. This means that the judge (e) The 
 explains the law to the jury or, in legal parlance, gives the charge* 
 jury the law. He defines the crime in its various grades and 
 explains to the jury what elements are necessary for the con- 
 viction to any particular grade. In some states he is allowed
 
 verdict 
 
 294 STATE AND MUNICIPAL GOVERNMENT 
 
 some little latitude in commenting upon the evidence, but in 
 no state is he allowed as much latitude as is granted to the 
 judges in the English courts. Counsel on both sides generally 
 ask for written instructions presented by them to the judge, 
 and these the judge allows, with such changes as he thinks 
 necessary to state the rules of law correctly. 
 
 (/) The The jury, under the guard of a sheriff or a deputy, is con- 
 
 ducted to a room where it examines the evidence, discusses the 
 case, and comes to an agreement, or else is obliged to report a 
 disagreement. What happens in the jury room varies not 
 simply from state to state but from jury to jury within the 
 same state. If it were possible to generalize, the following 
 procedure might outline the usual steps taken by the jury in 
 the process of reading a verdict. Often as soon as the jury 
 gets to the jury room a preliminary vote is taken as to whether 
 the defendant is guilty or not. Seldom is this preliminary 
 vote unanimous. The evidence may then be discussed, some- 
 times under the direction of the foreman of the jury, and a 
 vote then taken. If this vote is unanimous the work of the 
 jury is done. If it is not unanimous the jury must continue 
 to argue the evidence and to attempt to convince the minority. 
 If this is impossible, after a period of time satisfactory to the 
 court the judge may discharge the jury and order a new trial. 
 If unanimity is reached the jury reports to the court and 
 delivers the verdict by its foreman. 
 
 ig) The If the accused is found guilty the judge may at once apply 
 
 the sentence prescribed by the law or postpone sentencing the 
 prisoner until some future date. When the prisoner is sen- 
 tenced he is arraigned at the bar and his attorney may make a 
 final plea for clemency. The judge then determines from the 
 nature of the case and the character of the defendant what 
 sentence the prisoner shall receive. In some cases no latitude 
 is allowed to the judge; for example, in cases of murder of the 
 first degree. In other cases great discretion is permitted. The 
 prisoner may be released on the payment of a fine, or he may 
 be confined to prison. He may be confined either on a defi- 
 nite sentence or on an indeterminate sentence, which shall 
 be terminated according to the report of a special board or 
 
 sentence
 
 THE PROCEDURE OF THE COURTS 295 
 
 commission.^ In some cases the judge may give what is known 
 as a suspended sentence ; that is, pronounce a definite sentence 
 but suspend its operation. 
 
 After the judge has sentenced the prisoner the clerk makes (h) Execu- 
 out the commitment papers and delivers them to the proper ^'°° 
 officer, who takes possession of the person of the prisoner and 
 disposes of him according to the terms of the sentence. 
 
 2. Civil Cases, Common-Law Procedure 
 
 The essential difference between a criminal case and a civil civii cases: 
 case is that in the first the state prosecutes and the guilty- 
 person is punished, while in the second a private individual 
 seeks to maintain his rights and, if successful, is awarded 
 damages. Stripped of technicalities and without attempting 
 to cover all kinds of civil action the procedure in civil suits 
 includes the following steps: 
 
 The prcBcipe is the filing of a request that a writ be issued (0 The 
 under the authority of the court. This writ — and there are orTg^na^i 
 many kinds — is directed to the sheriff of the county where ^"'^ 
 the court has jurisdiction and instructs him to summon the 
 defendant to appear in court to defend his action. 
 
 The defendant, either in person or by his attorney, appears (2> Appear- 
 in court. In case he does not immediately offer satisfaction 
 or neglects the summons of the writ, judgment against him 
 may be given in his absence. 
 
 The pleadings were originally oral altercations in open court (3) The 
 before the judge as moderator. In most cases today the plead- 
 ings are conducted in writing and presented to the court. The 
 whole object of the various pleas is to present a single issue. 
 The pleadings begin with the declaration of the plaintiff, which 
 is a formal statement of the facts upon which he bases his 
 claim. Two courses are open to the defendant : he may deny 
 the facts stated in the declaration (this is a plea) or he may 
 claim that even if the facts as stated are true they constitute 
 no ground for recovery. The plea may be of two sorts : either a 
 traverse (that is, a denial of the truth of the facts) or a plea of 
 
 ^See page 181.
 
 2 96 STATE AND MUNICIPAL GOVERNMENT 
 
 confession and avoidance (that is, an admission of the truth of 
 the facts, but a submission of new facts to justify or alter the 
 original claim set up by the plaintiff). The defendant, how- 
 ever, has another course open to him which is known as a 
 demurrer. By this the defendant admits the truth of the facts, 
 but claims that the law does not allow the remedy asked for. 
 A plea presents a question of fact, a demurrer a question of 
 law. After the defendant has filed his answer the plaintiff may 
 traverse or plead to the facts submitted by the defendant, or 
 he may demur. This process may continue until a single issue 
 has been reached. In states where the old common law pre- 
 vails, unchanged by statute, these pleas may continue almost 
 indefinitely. In most states, however, there is a limit fixed by 
 statute. Often the steps are limited to two — the plaintiff's 
 complaint and the defendant's answer. Whenever this stage is 
 reached the case is ready for trial. 
 
 (4) The The trial of a civil case before a jury is quite similar to the 
 
 steps described in the previous section on criminal cases, with 
 certain important differences. Many civil cases involve the 
 ascertaining of damages. In fact, a civil suit ordinarily results 
 in an award of damages. These the jury must determine. If 
 the plaintiff has obviously failed to make out his case, the 
 judge may take the case from the jury ; that is, dismiss the 
 complaint. Sometimes, however, all the evidence presented 
 tends to only one conclusion, and the judge may direct the 
 jury to bring in a verdict for one party or the other. All that 
 remains for the jury to do in this instance is to determine the 
 amount of damages. 
 
 (5) Verdict In arriving at their verdict^ juries pursue the same formality 
 ment in civil cases which has been described in criminal cases. 
 
 The verdict is then presented to the court. It is not a sentence, 
 but a determination of the rights of parties and an award of 
 damages. In order to obtain satisfaction the plaintiff may be 
 obliged to take one more step. 
 
 (6) Execu- If the defendant does not voluntarily comply with the award, 
 
 — that is, pay the money damages decreed by the jury, — the 
 
 plaintiff or his attorney must request the court to issue a writ 
 
 iSomc states allow majority verdicts in civil cases.
 
 THE PROCEDURE OF THE COURTS 297 
 
 of execution. This is a writ directed to the sheriff or some 
 deputy, commanding him to levy upon and sell enough of the 
 property of the defendant to satisfy the awards. If the de- 
 fendant be a man without property, or if he has succeeded in 
 concealing or transporting his property to another jurisdiction, 
 execution may be impossible or it may require the filing of the 
 judgment in the jurisdiction where the property is found. 
 
 By the agreement of both parties a civil case may be tried Trial of a 
 
 civil esse 
 
 before a judge without the assistance of the jury. In this case without 
 the procedure is much the same except that the judge hears •'"'^^ 
 and determines all questions, both of law and of fact. In some 
 cases which are exceedingly complicated and technical the 
 judge may appoint, on the agreement of both parties, a master 
 or referee who hears the testimony and evidence and makes a 
 preliminary finding, which he files with the judge. The judge 
 then goes over the record and testimony and makes his 
 final decision. 
 
 3. Equity Procedure 
 
 There are five steps ordinarily necessary in equity, Proce- Equity 
 dure in equity starts with a bill of complaint in which the ^[^'^Biii^of 
 plaintiff calls the attention of the court to certain facts and complaint 
 prays the court to summon the defendant or respondent to a 
 hearing and to grant relief. 
 
 A subpoena is a writ directed to the defendant, requiring him f2) subpoena 
 
 . . 1 1 r 1 • 1 cind appear- 
 
 to appear at a certain time upon the penalty of having the ance 
 
 case decided in his absence as if he had confessed the truth of 
 
 the complaint. Appearance is the appearance of the respondent 
 
 either in person or by attorney. 
 
 Pleadings in equity are much less formal than those in law. (3) Piead- 
 The respondent may file a disclaimer (that is, deny that he '°^^ 
 has any interest in the matter) or he may demur. He may 
 select some particular fact upon which he wishes to have the 
 case determined. In such instance he files a plea. He may 
 make a general denial, which is known as an answer. 
 
 A case in equity is not heard before a jury, but before the (4) Hearing 
 judge alone, and the trial is known as a hearing. The judge, 
 however, may summon a jury and submit such questions of
 
 2 98 STATE AND MUxNICIPAL GOVERNMENT 
 
 (5) A decree 
 and its 
 enforcement 
 
 Appellate 
 courts 
 
 Powers of 
 appeal on 
 a writ 
 of error 
 because of 
 faulty de- 
 cisions of 
 lower court 
 
 fact to it as he sees fit. This is known as an "issue out of 
 chancery" and is really the use of the common-law court by 
 the court of equity for this special finding of fact. 
 
 As has been shown, a judgment in law is a mere statement 
 of the rights of the parties. A decree in equity goes further 
 and directs a party to perform or to cease from performing 
 some specific act in order that justice may be done. The exe- 
 cution of a judgment in law depends upon the property of the 
 defendant. In equity the defendant is guilty of contempt of 
 court and may be punished for such if he neglects to obey the 
 decree, but not if he merely fails from financial inability to pay 
 a money decree.^ 
 
 4. Appeals 
 
 The right of appeal is more common and much more widely 
 used in the United States than in England. Appeals may be 
 taken from any court of first instance, sitting without a jury, 
 on questions either of law or of fact. In like manner, appeals 
 both on questions of law and fact may be taken from some of 
 the county courts to courts of higher jurisdiction. It thus 
 happens that some courts sit both as courts of first instance 
 and as appellate courts. The term "appellate court," however, 
 is generally understood in a more restricted sense. It is used 
 to describe those courts which pass upon questions of law that 
 have arisen in a decision of a case in other courts. 
 
 A case may be carried to an appellate court upon a writ of 
 error. This alleges that the judge of the lower court has de- 
 cided some points contrary to law. During almost any trial the 
 attorneys are constantly making objections to the procedure, 
 and the judge is forced to rule upon these objections. In 
 case his ruling is questioned by one side, it notes an exception ; 
 that is, it gives notice that it will reserve the right to appeal 
 the case on the ground that the judge has erred and wrongfully 
 
 ^The machinery of a court of equity is better fitted than that of a 
 common-law court to handle such complicated matters as winding up 
 partnership affairs and distributing the assets, settlinp; larpe estates, and 
 clearing up other involved accounts and business relations. Executors and 
 other trustees often bring chancery suits to aid them in administering 
 their trusteeships.
 
 THE PROCEDURE OF THE COURTS 299 
 
 decided the point to which it objected. These exceptions may 
 be taken at almost any stage of the trial — from the indictment 
 to the judge's charge in criminal cases — and to any ruling the 
 judge may have made in civil cases. When the case is brought 
 to the appellate court on a writ of error it is the duty of the 
 court to decide the point of law. If the original ruling is 
 upheld, the judgment of the lower court is affirmed ; otherwise 
 the case may be sent back for retrial. In some cases, however, 
 where the point of law is fundamental and the error of great 
 importance, the appellate court may dismiss the case or may 
 direct the lower court to enter judgment according to the decision 
 in the appellate court. 
 
 Another ground of appeal may be that the verdict is contrary other 
 to the weight of evidence. In cases of this sort the entire fppea^ ° 
 record of the trial in the lower court, including the stenographic 
 reports of the evidence taken for the purpose,^ is transferred 
 to the upper court, and the evidence is there carefully reviewed 
 by the judges. If the judges are convinced from a careful 
 examination that the verdict is contrary to the evidence pre- 
 sented, they may send back the case for retrial or even dismiss 
 it, or order the appropriate judgments to be entered. Another 
 ground of appeal is put forward because of the discovery of 
 new evidence. The appellate court, however, must be con- 
 vinced that the newly discovered evidence is vital to the case 
 and that it might have altered the verdict originally given. 
 
 When an appellate court remands a case for retrial, both Effects of 
 parties are obliged to go to the expense and discomfort of *^^^^ ^ 
 prosecuting and defending the case anew, and the party losing 
 may once again appeal the case with the possibility that a 
 
 lAll evidence in equity suits except in issues out of chancery, which 
 are tried by common-law methods, must be reduced to writing, and 
 forms a part of the official record of the case. In common-law actions 
 the evidence is oral and not usually officially recorded. Either party 
 takes stenographic reports at his own expense and uses them on appeals 
 involving questions of fact. Affidavits (that is, sworn statements made 
 without opportunity for the opponent to cross-examine) are not ad- 
 missible as evidence, but depositions (that is, testimony taken out of 
 court with opportunity for cross-examination and in conformity with 
 certain other requirements) are admissible even in common-law trials. 
 Practically all testimony in equity suits consists of depositions.
 
 300 STATE AND MUNICIPAL GOVERNMENT 
 
 second retrial may be required. This process may go on al- 
 most indefinitely. Several disadvantages result from this prac- 
 tice. It favors the wealthy suitor who has money and can 
 procure counsel to prosecute appeals at the expense of the 
 poorer. Thus it is undemocratic. It greatly adds to the law's 
 delay ; that is, appeals delay the final administration of justice. 
 Every citizen has the right to be heard before judgment, and 
 all controversies involving more than a certain small amount 
 (fixed in each state, but usually about twenty dollars) must be 
 decided by a jury if either party demands it. These invaluable 
 rights involve an expenditure of time, but few would be willing 
 to sacrifice these rights in order to expedite the decision of a 
 case. It is obviously proper that appeals should be allowed 
 and that errors should be corrected in order that justice may 
 be done. No one should criticize the delay which results from 
 the appeal of a case on an important point of law so that a 
 vital error might be corrected or that new and important evi- 
 dence might be introduced. But appeals are often prosecuted 
 on unimportant grounds, and some appellate courts remand a 
 case for retrial where the error alleged is an unimportant one 
 and not vital to the determination of the case. Similar unim- 
 portant errors in the retrial of the case may offer the oppor- 
 tunity for another appeal and the possibility for another retrial. 
 Thus, Governor Baldwin cites the case of a brakeman injured 
 on a New York railroad in 1882.^ In 1884, as a result of a 
 suit against the company, he recovered damages to the amount 
 of $4000. In 1886 this judgment was reversed on appeal. On 
 a new trial he got a verdict for $4900. This was appealed to 
 two courts successively — the first court affirmed that judg- 
 ment, while the second reversed it. In 1889 the company won 
 the third trial. The brakeman then made two appeals. In 
 1894 the intermediate appellate court decided against him. 
 The court of last resort in 1897 decided for him. At a 
 fourth trial the brakeman obtained a verdict for $4500. The 
 company then appealed with success. A fifth trial gave the 
 brakeman a verdict of $4900, but this was set aside on appeal. 
 
 15. E. Baldwin, The American Judiciary, chap, xxiv, "The Law's 
 Delays," pp. 366-367.
 
 THE PROCEDURE OF THE COURTS 301 
 
 A sixth trial followed, with the same results, and the company 
 again won the appeal. In 1902 a seventh trial took place which 
 resulted in a verdict of .S4500. This the company appealed, 
 but was defeated. Such an example, with seven lawsuits and 
 seven appeals, is extraordinary in American jurisprudence, but 
 the case is cited to show the possibilities of the appellate system. 
 
 Because of delays and retrials it has sometimes been sug- suggested 
 gested that the right of appeal be restricted. This would be 
 extremely difficult and perhaps unfortunate. It would result in 
 the possibility of an uncorrected error involving injustice. One 
 suggestion which is sometimes urged is that no appeal should 
 be prosecuted without the assent of the trial judge. This has 
 little to recommend it. It is on account of the errors of the trial 
 judge that the case is appealed, and it is to be doubted whether 
 such a judge would be in an unprejudiced position to grant 
 or withhold the right of appeal. Another suggestion, of some- 
 what more merit, is that no appeal should be prosecuted with- 
 out the assent of one of the judges of the appellate court. This 
 also is open to objection. The judge of the appellate court 
 would either be obliged to make an exhaustive examination 
 and hold hearings, which in themselves would amount to the 
 process of appeal, or else he would be forced to grant or with- 
 hold his permission from a cursory examination and an ex-parte 
 hearing. Neither process is satisfactory. 
 
 5, Power of the Courts to declare Statutes 
 Unconstitutional 
 
 Appellate courts, and lower courts as well, possess what is The judicial 
 known as the judicial veto over state legislation.^ This is ex- 
 ercised by the United States Supreme Court with regard to 
 state legislation. It is implicitly or explicitly granted to the 
 highest state courts by the constitutions of the several states 
 and is everywhere assumed by the appellate courts. Theoreti- 
 cally it is a judicial function where all that the judge does is 
 
 ^See excellent accounts by J. M. Mathews, Cyclopedia of American 
 Government, Vol. Ill, p. 397, and A. N. Holcombe, State Government in 
 the United States, pp. 3SS-381.
 
 302 STATE AND IMUNICIPAL GOVERNMENT 
 
 to determine whether there is a conflict of laws or, in other 
 words, whether the state statute is in conflict with the state 
 constitution or with some federal act, treaty, or the Federal 
 Constitution. Practically, however, this function is largely 
 political. The construction of a state constitution is a dif- 
 ferent process from an application of a state law. The terms 
 of the constitution are more general and are susceptible of 
 various interpretations depending in part upon the political 
 bias of the judge. In the early days of the Constitution this 
 power was rarely used and then chiefly to protect the courts 
 against the usurpation of their powers. Since the Civil War, 
 however, it has been used increasingly by both the federal 
 and the state courts, not so much to protect themselves as 
 because of defective legislation or of legislation in conflict with 
 the due-process and equal-protection clauses of the Federal 
 Constitution. Both of these clauses, as interpreted by the 
 courts, prevent or forbid the passage of any law by the legis- 
 lature which the courts think is unreasonable. This "rule of 
 reason," as applied by the courts, has at various times subjected 
 both the courts of the United States and those of the various 
 states to severe criticism. 
 
 6. Judicial Control of Administration 
 
 Judicial re- Administrative officials derive their powers partly from the 
 lo-^erli^^ constitutions of the states and partly from state statutes.^ In 
 administra- reviewing the acts of administrative officers the courts of neces- 
 
 tive officers " 
 
 sity must determine the authority under which the officer acts. 
 In other words, they must determine the constitutionality of 
 the statute. Two general limitations are enforced by the courts. 
 The legislature may not delegate legislative powers to the 
 administrative officers. This means that the legislature must 
 determine by statute the principles upon which the administra- 
 tive officers ought to act. For example, an act allowing a 
 public-service commission to regulate the rates charged by the 
 
 1 F. J. Goodnow's "Principles of the Administrative Law of the United 
 States" is the most authoritative treatment of this subject. See also 
 A. N. Holcombc, State Government in the United States, pp. 381-391.
 
 THE PROCEDURE OF THE COURTS 303 
 
 railroads would be held to be an unconstitutional delegation 
 of legislative power. If, however, the legislature enact that 
 the commission should prescribe just and reasonable rates, this 
 would probably be considered a sufficient rule for the commis- 
 sion to follow. In like manner, the legislature may not delegate 
 judicial power to administrative officers nor administrative 
 power to the judiciary. These principles have been long in 
 existence, but they have been more frequently invoked in recent 
 years. The reason for this is to be found in the manifold 
 activities of state administration and in the impossibility of 
 regulating all phases of state administration by general statutes. 
 Countless commissions are created to perform specific functions 
 which, while not technically legislative or judicial, for practical 
 purposes involve the use of both functions. In reviewing the 
 decisions of these commissions the court exerts a centralizing 
 and harmonizing power. Such review, however, places too 
 great a burden upon the courts and one which they are hardly 
 fitted to assume. The commissions themselves were created 
 because the legislature felt itself unable to deal with such 
 technical problems and desired the opinions of experts. The 
 judges, however expert they may be in law, are not universal 
 experts in all the fields touched by administrative regulation. 
 
 From the time of Marshall's famous decision in the case of judiciaicon- 
 Marbury v. Madison (1803) the courts have made a distinc- acts^o/ad- 
 tion between ministerial and discretionary acts. A ministerial ministrative 
 act has been held to be one which leaves the administrative Ministerial 
 officer no discretion. Acts of this sort are subject to the ^^^^ 
 strictest judicial control. The courts may refuse to give legal 
 effect to such acts because they are unauthorized by either 
 the state constitution or state statutes ; or the courts may by 
 injunction or mandamus command the administrative officer 
 to perform or refrain from performing such an act. Discre- Discretion- 
 tionary acts, on the other hand, are administrative acts which ^^ 
 may or may not be performed according to the discretion of 
 the administrative officer. In general, the courts will not review 
 such an act, particularly if it is a political matter, and they 
 have held that the remedy for wrongful discretionary acts is 
 political rather than legal. It must be admitted, however, that
 
 304 STATE AND MUNICIPAL GOVERNMENT 
 
 the line of distinction is not always clear, and the courts are 
 not always absolutely consistent in enforcing this distinction. 
 As Professor Holcombe has well said: "The habit of looking 
 to the courts for the final determination of important adminis- 
 trative questions does not solve the problem. It merely shifts 
 its location." He holds truly that the activity and much of the 
 criticism of the state courts in the attempt to control adminis- 
 tration arises from administrative weakness, not from excessive 
 judicial strength. His conclusion is also significant. "The most 
 promising plan for correcting the defects of the existing system 
 is to increase the efficiency of the administrative branch of state 
 governments. This can be done only by the further reform 
 of the methods of selecting administrative officers and by the 
 further centralization and integration of state administration."^ 
 
 Action of 
 appellate 
 courts 
 
 Action of 
 juries 
 
 7. The Courts as Agents of Self-Government 
 
 The division of the powers of government into the executive, 
 legislative, and judicial, which has been established by the state 
 constitutions, gives the final determination to the courts. As 
 has been pointed out, the appellate courts control legislative 
 action through the judicial veto when a state statute is held to 
 conflict with the state or Federal constitution. The action of 
 every administrative officer may be subject to judicial review 
 within the limits just discussed. Only an amendment to the 
 state constitution can reverse the decision of the highest court 
 of a state.- When it is remembered that the judiciary in the 
 majority of the states is chosen directly by the people, it can 
 be appreciated to what limits popular control extends over state 
 action by means of the judiciary. 
 
 In another way, however, and in one more frequently in- 
 voked, the action of the courts becomes an instrument of self- 
 government. As De Tocqueville pointed out : 
 
 The institution of the jury places the real direction of society in 
 the hands of the governed, . . . and not in that of the government. 
 
 ' State Government in the United States, p. 391. See also the dkcus- 
 sion of the state administrative reform, pp. 163-167. 
 
 2 An exception should be noted where the recall of judicial decisions 
 is in vogue.
 
 THE PROCEDURE OF THE COURTS 305 
 
 Force is never more than a transient element of success, and after 
 force comes the notion of right. . . . The true sanction of political 
 laws is to be found in penal legislation ; and if that sanction be want- 
 ing, the law will sooner or later lose its cogency. He who punishes 
 the criminal is therefore the real master of society.^ 
 
 The practical application of this principle has been discussed 
 in detail in this chapter. The power and significance of 
 the action of the grand jury has been discussed. The action 
 of the petit jury has been described and criticized. It should 
 be remembered, however, that the criticisms of the action of 
 the petit jury are chiefly directed against the jury as a judicial 
 instrument in performing the specific function which was as- 
 signed to it by theory. As instruments of self-government, 
 juries, both by their refusal either to indict an offender or to 
 convict one already indicted, represent the action of public 
 opinion in determining the method and application of the law. 
 As judicial instruments they may fail, but as instruments of 
 government they give, on the whole, great satisfaction. 
 
 1 Quoted by A. N. Holcombe, State Government in the United States, 
 p. 72.
 
 PART IV 
 COUNTY AND TOWN GOVERNMENT
 
 CHAPTER XVI 
 
 THE EVOLUTION OF LOCAL GOVERNMENT IN THE 
 
 UNITED STATES 
 
 Local government in the United States was -a development The English 
 from English institutions. At the time of the founding of the lo^cafgov- 
 colonies these institutions of local government had considerable ^™"^JJ^g*° 
 vitality. The political struggles of the Stuarts were largely for states 
 the purpose of getting control of the central government.^ 
 Local institutions were left to a large extent in the hands of 
 the local leaders. Many of these emigrated to America and 
 reestablished here the institutions with which they were familiar 
 and from which was developed the modern system of local 
 government. The two English institutions of local government 
 which had most effect in the development of local government 
 in the United States were the county and the parish or the town. 
 
 The English county grew out of the old Saxon shire, which The English 
 originally had a considerable degree of self-government. Al- 
 though the importance of the shire courts declined and the 
 power of the royally appointed sheriffs increased, the counties 
 retained to a large degree the administrative control of their 
 own affairs. This Was exercised largely through the justices TheEngiish 
 of the peace, of whom there were from twenty to sixty for each the peace 
 county. These justices were usually men of good family, but 
 not necessarily learned in the law. Their duties were various ; 
 even as early as 1603 there were nearly three hundred statutes 
 dealing with their functions. Aside from administration the 
 justices had judicial duties. At quarter sessions they sat as a 
 court, having criminal jurisdiction over all but the most petty 
 and the most serious crimes. This court, moreover, had impor- 
 tant administrative duties in the care of the roads, bridges, 
 county property, and in the levying of county taxes. Thus, 
 
 1 Edward Channing, History of the United States, Vol. I, p. 421. 
 
 309
 
 310 STATE AND MUNICIPAL GOVERNMENT 
 
 although the county had no legislative autonomy it did possess, 
 to a large degree, the control of its own administrative and 
 judicial affairs. 
 The English The English parish or town was the smallest administra- 
 town'' °^ tive unit and originally it had few civil duties, its chief func- 
 tions being ecclesiastical. With the separation from the Roman 
 Church, however, certain civil functions were given to it ; chief 
 among these was the care of the poor, for which taxes or rates 
 were levied. The affairs of the parish were under the control 
 of a vestry meeting, which might be attended by all land- 
 holders in the parish. This meeting elected the parish officers 
 and appointed a committee to advise them. Not merely was 
 the parish responsible for the support of the poor, but it was 
 obliged to furnish its quota of armed men at the call of the 
 crown. Taxes or rates were also levied to provide for armor 
 and to support the soldiers sent from the parish. Thus, through 
 the justices of the peace in the county and the vestry in the 
 parishes, there was considerable autonomy in English local 
 government. Gradually this was diminished by the encroach- 
 ments of the central government, but in the American colonies 
 the original powers were reproduced. 
 Beginnings At the Settlement of the colonies there was no distinction 
 government between the local and the central government in any colony.^ 
 in America: g^^ ^g g^^j^ ^g immigration increased the population the area of 
 settlement was extended, and some provision had to be made 
 for the government of the community at a distance from the 
 original settlement. This growth brought about the develop- 
 ment of three types of local government. 
 
 In the Southern colonies, particularly in Virginia, the county 
 became the most important unit in local government. The 
 
 ^Sec H. G. James, Local Government in the United States, chap. ii. 
 J. A. Fairlie, Local Government in Counties, Towns, and Villages, gives 
 an excellent survey of the origin and development of local government 
 in the United States. In common with others 1 have freely used this 
 for the material in this chapter. W. B. Munro, Government of the United 
 States, chap, xxvii, presents an excellent summary of the history of local 
 government in the United States. For a more extended treatment see 
 G. E. Howard, An Introduction to the Local Constitutional History of 
 the United States.
 
 EVOLUTION OF LOCAL GOVERNMENT 311 
 
 officers and the machinery of administration closely resembled (i) The 
 those of the English county. There was no general assembly of inThe^ ^^^^ 
 the freeholders for political purposes ; those who, because of c*'i"n^^'^'^ 
 their freehold property, were qualified to vote elected delegates 
 to the general colonial assembly, but took no part directly in 
 the management of the affairs of the county. The administra- — 
 tive officers of the county included a lord lieutenant, a sheriff, 
 and justices of the peace. The duties of the lord lieutenant and 
 the sheriff were analogous to those of their English prototypes, 
 while the county courts were somewhat similar to the county 
 courts in England and were the most important and almost the 
 sole institution of local government. They held monthly meet- 
 ings at which they exercised a limited criminal jurisdiction but 
 considerable administrative power in that they were charged 
 with the care of the courthouse and the building of county 
 roads and bridges, for which they levied a tax. In course of 
 time these courts became almost self-perpetuating corporations, 
 since the justices of the county suggested to the governor the 
 candidates for lord lieutenant, sheriff, and their fellow justices. 
 In theory and practice the government of the counties was un- 
 democratic and oligarchical, but it is probable that the same men 
 would have been chosen for office had the freeholders been given 
 the right of election. The system of county government was de- 
 veloped and retained in Virginia and the Southern colonies be- 
 cause of the nature of the settlements. There were few towns or 
 communities of any size. The plantations were large and scat- 
 tered, and each planter on his estate assumed many of the duties 
 which were ordinarily performed by agents of local government. 
 
 There were, however, smaller units ; namely, the parishes, [The south- 
 which had few duties other than ecclesiastical and were over- 
 shadowed in local administration by the powers of the county. 
 The parishes in Virginia were controlled by the vestry, usually 
 consisting of twelve men who, like the justices of the peace in 
 the county, soon became self-perpetuating. With the vestry were 
 associated the churchwardens as their executive agents. During 
 colonial times the Virginia parishes amounted to very little in 
 local government, but with the concentration of population the 
 parishes began to assume some of the functions of the town.
 
 312 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) The New 
 England 
 town 
 system 
 
 I The New 
 
 England 
 
 counties! 
 
 ^3) The 
 
 mixed 
 
 system 
 
 In New England the other element of English local govern- 
 ment was developed ; namely, the town. The settlement of 
 New England was in some instances brought about by the 
 immigration of whole parishes or congregations with their 
 ministers. The economic life and development of the colony 
 necessitated compact settlements; the colonists were small 
 farmers or fishermen or traders ; there were no large estates or 
 plantations. Thus, from the very first, town life was accen- 
 tuated and the control of the affairs of the town was in the 
 hands of the town meeting, which was somewhat similar to the 
 meetings of the open vestries in England. At a town meeting 
 all the qualified inhabitants of the town who had assembled 
 passed by-laws, made appropriations, and elected officers. The 
 most important officers chosen in the town meetings were the 
 selectmen — a committee of from three to thirteen members. 
 These officers were the executive agents of the town, although 
 their powers were strictly circumscribed. In the first place, they 
 were limited by the appropriations which were made by the 
 town meeting, and they had no independent power to levy 
 taxes. In the second place, the business was thoroughly dis- 
 cussed in town meeting and each project separately voted. 
 Therefore the selectmen had little or no opportunity to under- 
 take projects on their own account — they were executive 
 managers with little discretion. In every town a constable was 
 chosen, but he was merely another agent of the town meeting. 
 A more important officer was the town clerk, who acted as 
 secretary of the town meeting and as registrar of deeds and 
 vital statistics. 
 
 Every New England colony in course of time established 
 some form of county government. The counties, however, in 
 New England were rather judicial districts than instruments 
 of local government. 
 
 In the middle colonies a mixed system of local government 
 developed. In this region the towns were more important than 
 the parishes in the South and had a considerable degree of 
 autonomy. In New York State, after 1691, there were created 
 elective county boards of town supervisors which consisted of
 
 EVOLUTION OF LOCAL GOVERNMENT 313 
 
 one freeholder elected from each town in each county to 
 supervise the levy and assessment of the local taxes for county 
 purposes. This feature was adopted in the colonies and later 
 in the states composing this group, and is the distinctive mark 
 of the mixed system. In the middle group the county was 
 the political unit which elected the members of the colonial 
 legislature, and with the development of the elective principle 
 for county officers it became the center of political activity. 
 
 Outside of New England a third unit of local government The colonial 
 was found ; namely, the borough. In England a borough re- °'^°*'^ 
 ceived its charter from the crown ; in America it was chartered 
 by the colonial governor as the crown's representative. The 
 first borough to receive a charter was New York, to which 
 Governor Dongan in 1686 issued a charter.^ The charter pre- 
 scribed the form of government, which, not unlike that of the 
 English borough, consisted in general of an executive officer 
 or mayor appointed by the governor, councilors elected by the 
 freemen, and aldermen chosen by the councilors. As in the 
 English borough, the mayor, aldermen, and councilors met 
 in a single borough council. In New England the system of 
 town government was so satisfactory that no town in those 
 colonies became a borough or a city before the Revolution.- 
 
 The colonists were fairly well satisfied with their system of The 
 local government ; they had as much control over their affairs and°iocai* 
 as did the people in England, and in New England it was government 
 even greater. Although the English authorities occasionally 
 objected to the creation of new counties, on the whole they 
 interfered very little with the administration of local affairs. 
 Consequently, after the Declaration of Independence and the 
 formation of the state governments, few changes were made in 
 these institutions. None were necessary in the towns of New 
 
 ^In all there were about twenty chartered boroughs in the colonies 
 before the Revolution, the most important of which were Albany, 
 chartered in 1686; Philadelphia, 1691 ; Annapolis, 1696; Norfolk, 1736; 
 Richmond, 1742; Trenton, 1746. W. B. Munro, The Government of 
 American Cities, pp. 2-3. 
 
 -Boston received its first city charter in 1822, when its population 
 had passed the 40,000 mark and its qualified voters exceeded 7000.
 
 314 STATE AND MUNICIPAL GOVERNMENT 
 
 England, and in the counties — both in New England and in 
 the South — the officials continued to be appointed, as, indeed, 
 they were in Virginia until well into the nineteenth century. 
 In other states, however, the county officials were chosen by 
 election — generally by the state legislature, for the idea of 
 direct popular election did not commend itself at first. 
 Extension Between the Revolution and 1820, settlements were pushed 
 of locfaf™^ out as far as the Mississippi, and states and territories were 
 fo^the""^^"* organized in this region. As Professor Fairlie points out,^ the 
 territories institutions of local government in moving westward roughly 
 followed the parallels of latitude. Thus, in the northwest ter- 
 ritory the New England town meetings were adopted, although 
 they were not nearly so vigorous as in the original states. 
 Indiana and Ohio adopted the mixed type of local government 
 which characterized New York and Pennsylvania. Kentucky 
 and Tennessee took over the Virginia system of county govern- 
 ment. The institutions which were thus transplanted under- 
 went radical changes. In all the frontier settlements the 
 principle of popular election was emphasized and the govern- 
 ments were far more democratic. The doctrine of manhood 
 suffrage placed the choice of the local officials in the hands of 
 the whole people rather than in those of the taxpayers. Pro- 
 fessor Fairlie sums up the situation in the middle of the 
 nineteenth century as follows : 
 
 Thus before the Civil War the main features in the development 
 of local institutions had been established. Throughout the country 
 the states were divided into counties, each with a considerable 
 number of elective offices, but with important differences in the or- 
 ganization of the fiscal authority. Everywhere, too, the county was 
 subdivided into smaller districts ; but these varied in importance 
 from the New England town, through the township of the Middle 
 West, to the election and judicial precincts in the South. The basis 
 of the suffrage for local elections was the same as for state elections ; 
 and had been steadily extended during the half century before i860, 
 until the general system was one where every free white male citizen 
 could vote.'-' 
 
 ' Local Government in Counties, Towns, and Villages, p. 35. 
 "Ibid, pp 47-48.
 
 EVOLUTIOX OF LOCAL GOVERNMENT 315 
 
 The framework of local government in the United States Recent de- 
 today is characterized by decentraUzation, but although the ^n^^o^caf"^^ 
 forms of local autonomy are pretty generally retained, strong government 
 centralizing tendencies are everywhere seen. State control or 
 supervision has made great headway. This began usually 
 with the compulsory-education laws, by which the state made 
 contributions to the local school authorities; with this finan- 
 cial aid came the power of supervision. State supervision, 
 however, is rapidly extending into other fields of local activi- 
 ties. The state boards of health and poor relief and charities^ 
 exercise considerable influence, if not absolute control, over 
 the local authorities. State boards of assessment and accounts 
 supervise or examine the financial affairs of the local authori- 
 ties, and in some states state authorities are active in the 
 enforcement of law. The extent to which this state super- 
 vision is exercised varies in different regions. In the South in the 
 the presence of large negro populations has led the state ^°"^^ 
 authorities to exercise closer supervision and greater control 
 in the interests of efficient administration of law and justice. 
 In the North and West the county is still the main unit of 
 local government, although state control is active. In the 
 Northeast and, to a lesser extent, in the West the concentration 
 of population in cities has brought about an increase of incor- 
 porated communities with varying types of city government 
 which tends to decrease the importance and activities of the 
 old township form. 
 
 In spite of the extension of state control, local government in Extent 
 the United States is more active and less under the control autonomy in 
 of the central authorities than it is in any other country, the united 
 This is not altogether an unmixed benefit. In many states the 
 rural communities, if left to their own devices, entirely un- 
 supervised, fail to maintain the standard desired by the people 
 of the state at large.^ School systems may be neglected, proper 
 measures for the preservation of health and hygiene ignored, 
 and the community may become not only a danger to itself but 
 a menace to the rest of the state. In the same way and to 
 an even greater degree state supervision may be necessary 
 
 iSee Chapters VIII and IX.
 
 3i6 STATE AND MUNICIPAL GOVERNMENT 
 
 for cities. In most instances, however, the instinct of self- 
 preservation compels the city to take proper measures for the 
 preservation of the health of its citizens, but in so doing it not 
 infrequently trespasses upon the rights of other communities. 
 An example of this is seen in the disposal of the sewage of a 
 large city by turning it into a river which flows past other 
 cities. More often, however, the resources of a city must be 
 guarded against extravagant or corrupt use. Thus state super- 
 vision is exercised over the finances of a city by means of 
 limitations upon the tax rate and debt limits, and in many 
 states public service commissions have large power in deter- 
 mining the grants of franchises within the city. Finally, the 
 political action of the cities is determined by state laws and in 
 some cities is subject to supervision by state officers.^ Local 
 autonomy theoretically fosters local independence and allows 
 each community to meet its problems its own way. Practically, 
 as has been seen, complete independence in local government 
 too often allows the community to neglect its duties, and its 
 failures react upon its neighbors. As Professor Munro has 
 well said: 
 
 The right of the individual community to do as it pleases, spend 
 its own money as it may see fit, and be a law unto itself is surely no 
 greater than that of the individual citizen. The limits of liberty in 
 each case are set by the rights of others. That is the fundamental 
 consideration to be borne in mind when dealing with the problem of 
 local self-government. - 
 
 'See pages 388-3QO and Chapter XXX. 
 
 -W. B. Munro, The Government of the United States, pp. S44-S4S-
 
 CHAPTER XVII 
 THE COUNTY 1 
 
 General Characteristics 
 
 Throughout the state the largest district for local adminis- Definition of 
 tration is the county.^ A county is a territorial division of the * '^°"°'^y 
 state and at the same time is a quasi-corporation for the pur- 
 poses of local civil administration.^ Counties are the creations 
 of the sovereign power within the states and may be erected 
 without the consent of the inhabitants. Generally the con- 
 stitutions of the states give the legislatures the power to create 
 counties, but in absence of this permission the legislature may 
 
 1 Chapters XVII and XVIII do not attempt to pive a full and ex- 
 haustive treatment of all the problems of county and town organiza- 
 tion or to discuss in detail all the functions they perform. Many of the 
 problems of county government are common to both the states and 
 counties and have already been fully treated. Many of the functions 
 of the county are state functions, administered by officials chosen within 
 the county; for example, the administration of justice, which is treated 
 at length in Chapters XIII, XIV, and XV. Administrative duties and 
 functions of towns, like the school system and water supply and so 
 forth, are further studied in connection with municipal government in 
 Chapters XXVII-XXX. What has been attempted in this section is to 
 give a brief treatment of some of the varieties of county and town 
 organization and to describe some of the features wherein counties and 
 towns differ from states and cities. More extended treatments of county 
 and town government are to be found in J. A. Fairlie's "Local Govern- 
 ment in Counties, Towns, and Villages," and H. G. James's "Local 
 Government in the United States." 
 
 2 In Louisiana the similar districts are known as parishes. 
 
 2J. A. Fairlie, Local Government in Counties, Towns, and Villages, 
 gives a comprehensive treatment of this subject. A more recent sug- 
 gestive discussion is found in H. G. James, Local Government in the 
 United States, chaps, iii, iv. The Annals of the American Academy 
 of Political and Social Science, Vol. XLVII, pp. 3-278, contains a series 
 of papers on "Types of County Government," "Typical Problems in 
 County Government," and "Plans for the Reorganization of County 
 Government." 
 
 317
 
 31 8 STATE AND MUNICIPAL GOVERNMENT 
 
 Territorial 
 character- 
 istics 
 
 Population 
 
 Character 
 of counties 
 
 Counties as 
 corporations 
 
 act without an express grant. In some states — for example, 
 the North Atlantic states — the power of the legislature for 
 this purpose is hardly limited by the state constitutions, but 
 in most states restrictions are imposed upon the exercise of 
 this authority. 
 
 The area of the counties in the different states shows great 
 variation. The smallest county^ is Bristol, Rhode Island, 
 covering 24 square miles ; at the other extreme San Bernardino 
 County, California, covers more than 20,000 square miles. The 
 average area would be somewhat over 1000 square miles, but 
 the most usual areas are between 400 and 650 square miles. In 
 some states the constitution prescribes a limit for the area of 
 the county, the most usual figures set being 400 square miles. 
 
 The counties vary extremely in population. The most popu- 
 lous is New York County, New York, with a population of 
 more than 2,000,000; at the other extreme, Cochran County, 
 Texas, has only 65 inhabitants. The average population is 
 more than 30,000, and the medium population about 20,000. 
 There are, moreover, important variations with respect to 
 population in the different sections of the country. In ISIassa- 
 chusetts eight of the fourteen counties have a population of 
 more than 100,000 each, and in the North Atlantic group of 
 states about half the counties are over 50,000. In the Southern 
 states the majority of the counties have a population of from 
 5000 to 20,000, while in the Western states about two thirds 
 of the counties have less than 10,000 inhabitants. 
 
 The vast majority of the counties are exclusively rural in 
 character. Even in most counties which contain cities the rural 
 population predominates. In a few counties, however, a single 
 city contains the bulk of the population,'-" and in some instances 
 the boundaries of the city and county are the same.' 
 
 Counties in the United States are known as quasi-corpora- 
 tions, but have less power than municipal corporations. A 
 county may sue and be sued in the courts on contracts, but in 
 
 1 Excluding the cities in Virginia which have county orRanization. 
 2 For example, Buffalo, Chicago, Cincinnati, Cleveland, and New York. 
 •Tor example, Hallimore. Boston, Denver, New Orleans, Philadelphia, 
 San Francisco, St. Louis, and eighteen cities of Virginia.
 
 THE COUNTY 319 
 
 general it is not liable for damages due to negligence. The coun- 
 ties may make contracts to accomplish the purposes for which 
 they were authorized, but in most states their power to con- 
 tract indebtedness is limited by the provisions of the state 
 constitutions. In general, the corporate powers of the county 
 are secondary and incidental to its governmental functions.^ 
 Thus the courts have said that the counties "exist only for 
 the purpose of the general political government of the state. 
 They are the agents and instrumentalities the state uses to 
 perform its functions. All the powers with which they are 
 entrusted are the powers of the state, and the duties imposed 
 upon them are the duties of the state."- 
 
 While the powers and functions of the counties vary greatly county 
 throughout the United States, it is possible to find certain factions: 
 common factors in county government throughout the coun- ■gtratl^n'of 
 try.'' The counties are everywhere primarily districts for the justice 
 administration of justice, and civil and criminal courts are 
 held at frequent intervals. In some states, as will be seen, the 
 judges are chosen from large districts, but the administrative 
 officers of the courts are generally county officers. As a part 
 of the administration of justice, the county provides and main- 
 tains courthouses and jails. In some states the county is to 
 some extent a police and militia district, and in almost all the 
 states the county is the district for probate administration and 
 the recording of land titles. 
 
 Counties have considerable importance in the administration (2 ) Admin- 
 of finance. In most states the county boards levy taxes for finance 
 their own purposes and spend these taxes. Only in commission- 
 governed cities is a similar fusion of the appropriating and 
 spending power found. As a rule, the county not only collects 
 its own taxes but may act as an agent of the collection of state 
 revenues and sometimes for counties and other districts. 
 
 iFor a more extended treatment see H. G. James, Local Government 
 in the United States, pp. 186-194. 
 
 2 J. A, Fairlie, Local Government in Counties, Towns, and Villages, 
 p. 65, quoting Madden v. Lancaster County, 65 Fed. Rep. 188, 191; 
 12 C. C. A. 566. 
 
 3See H. G. James, Local Government in the United States, chap. iv.
 
 importance 
 
 seat 
 
 320 STATE AND MUNICIPAL GOVERNMENT 
 
 (3) other In the majority of the states the county is the unit of poor 
 
 functions j-g^gf^ ^nd outsidc of New England it is the county govern- 
 ment that constructs and maintains county roads and bridges 
 and sometimes other public works. In some states counties 
 maintain hospitals and sanitariums and, more rarely, support 
 charities. 
 
 Political The counties are important districts for election purposes in 
 
 all states. In the choice of state officers the county is always 
 the unit for canvassing the votes and generally it is the district 
 for electing members of the state legislature. Most county 
 officers, moreover, are elected. With these important func- 
 tions to perform, it is not surprising that in most states the 
 county is the unit of the party organization, and the county 
 committees of the parties outside of the New England states 
 rank next in importance to the state committees. 
 
 The county In every county a town or city is designated as the county 
 seat. Here are located the courthouse, the jail, and the offices 
 of the county officers, while either in the town or close by are 
 generally grouped the other county institutions. Usually, when 
 the county contains a town of fair size this town will be desig- 
 nated as the county seat, but there are cases where a smaller 
 community nearer the territorial center of the county is chosen 
 as the county seat instead of a larger city. The location of 
 the county seat is a matter of considerable importance; in 
 rural communities the concentration of county business in any 
 town generally makes that town the most prominent com- 
 munity in the county. Since the county seat contains the 
 county court, at which all probate business must be transacted, 
 it is of great consequence that this center should be easily 
 accessible. Because of the importance of the county seat, 
 different communities vie with each other to be so designated. 
 In general the legislature determines this question, but in the 
 West it is sometimes decided by a referendum vote. There are 
 counties in some states which have more than one county seat, 
 and in New England courts are not infrequently held in two or 
 more places in most of the counties.
 
 THE COUNTY 321 
 
 The Government of the County 
 I. The County Board 
 In every state except Rhode Island there exists in each Types of 
 
 . . ... organiza- 
 
 county, for the execution of certain governmental functions, a tion: 
 local authority often although not invariably called the county 
 board/ It is generally spoken of as the legislative branch of 
 the county government, but, as will be seen, its legislative 
 functions are rather closely restricted, and it performs wide 
 and various administrative duties and in some cases is charged 
 with judicial functions. In general, there are two types of 
 county boards: the first consists of a small board of commis- 
 sioners elected at large by each county; in the second the 
 county board is much larger and is composed of supervisors 
 chosen by the townships and cities within the counties. In 
 some states either one or the other of these types exists in its 
 simple form ; in others there are compromises between the two 
 types, not infrequently including new and unusual features. 
 
 The srriall county commission of from three to five members (i) The 
 is found in New England and in all but five of the Middle sl'^'type 
 Atlantic and North Central states, as well as in the mountain 
 and Pacific states. These small county boards meet fre- 
 quently and are active administrative bodies ; they also have 
 the power to levy taxes,- and exercise both executive and 
 legislative functions. 
 
 The board type of county government is found in Michigan, (a) The 
 New Jersey, New York, Wisconsin, and in most of the Illinois °^^ ^^^ 
 counties. County boards of this kind differ from the county 
 commissioners in more respects than in mere size. They are 
 composed of from fifteen to twenty-five members, but in some 
 counties containing a large city the number of commissioners 
 
 iSee J. A. Fairlie, Local Government in Counties, Towns, and Vil- 
 lages, pp. 75-94, and H. G. James, Local Government in the United 
 States, pp. 130-139. 
 
 -'In Connecticut and New Hampshire the county commissioners do 
 not have these powers, which are intrusted to biennial conventions of 
 the members of the state legislatures from each county. In Massa- 
 chusetts the county appropriations and levies are made by the legislature, 
 but the estimates of the county commissioners are generally adopted.
 
 32 2 STATE AND MUNICIPAL GOVERNMENT 
 
 County or- 
 ganization 
 in the 
 Southern 
 states 
 
 / 
 
 may be as large as fifty. Instead of being elected at large by 
 the electorate of the entire county, they are chosen to repre- 
 sent local districts as such and are rarely apportioned ac- 
 cording to population. Thus, as a rule, each town, whether 
 large or small, has one representative. Larger cities, how- 
 ever, are sometimes given additional representation, though 
 rarely equal to their population. Exceptions are not infre- 
 quent ; thus, Detroit has more than a majority of the board of 
 supervisors of Wayne County, Michigan, and Chicago has ten 
 of the fifteen county commissioners of Cook County. For 
 legislative purposes and for levying taxes and making appro- 
 priations these boards may possibly be more representative 
 than the smaller bodies of commissioners, because they feel 
 their responsibility to their local community. But since a 
 greater part of the functions of the county board is execu- 
 tive rather than legislative, it may be doubted whether these 
 larger boards are more efficient agents for the general pur- 
 poses of county government than are smaller bodies of 
 commissioners. 
 
 There is no uniform organization for county boards in the 
 Southern states. In Kentucky, Tennessee, and Arkansas the 
 quarterly court of the justices of the peace constitutes the ad- 
 ministrative and fiscal authority of the county ; in Virginia the 
 counties are divided into districts, each of which elects a 
 member to the county board ; in the other Southern states the 
 county board is a small body of from three to five members. 
 Professor Fairlie' has noted two characteristics in some of the 
 states in the South. The first is the combination of judicial 
 and administrative functions as found in Alabama, Kentucky, 
 Georgia, and Tennessee. The second feature is a tendency 
 toward a definite county officer, who is generally the county 
 or probate judge, the leading member, the chairman, and often 
 the executive of the county court. This system reaches its 
 maximum development in Georgia. 
 
 1 Local Government in Counties, Towns, and Villages, p. 82.
 
 THE COUNTY 323 
 
 2. Powers of the County Board 
 
 The powers and duties of county boards are strictly deter- 
 mined by statute. These statutes are both of general and of 
 particular application and are constantly being amended and 
 increased in number. It is therefore impossible to make a 
 comprehensive classification of all the powers and functions 
 of the county boards. But in general they manage (i) the 
 county finances and property, (2) highways and public works, 
 and (3) care of the poor; they have (4) some limited ordi- 
 nance and police power, (5) some supervision over county 
 officers, and (6) in some cases oversight over the minor 
 divisions of the county. 
 
 The management of the county finances is the most impor- county 
 tant function of the county board .^ The board levies the 
 taxes on general property for county purposes and also the 
 taxes for the county's share of the state tax. This power may 
 be limited by both constitutional and statutory provisions. In 
 general, a tax may be levied only for authorized purposes, and 
 very frequently it may not exceed a certain maximum rate, 
 which, however, may sometimes be exceeded as the result of 
 a referdtodum vote. In some states the county board receives 
 revenuMfrom licenses for certain trades and occupations. Be- 
 fore thfcdoption of the Eighteenth Amendment, licenses for the 
 sale or liquor constituted the largest source of revenue under 
 this head. Generally speaking, county boards may not raise 
 money by issuing bonds, but in some states they may do this 
 as the result of a popular referendum, and in all states special 
 authority may be granted by the legislature to make loans for 
 specific purposes. In some states the county authorities act as 
 boards of equalization in apportioning taxes among the various 
 subdivisions of the county. With the power to levy taxes 
 usually is included the power to appropriate revenue for par- 
 ticular purposes. This is restricted by state statutes, which, 
 as a rule, fix the compensation of certain officers and require 
 
 iSee J.A. Fairlie, Local Government in Counties, Towns, and Villages, 
 pp. 86-8g. H. G. James, Local Government in the United States, 
 pp. 232-251, gives a more extended discussion of the subject.
 
 324 STATE AND MUNICIPAL GOVERNMENT 
 
 County 
 works 
 
 Poor relief 
 
 Police 
 power 
 
 Control over 
 
 county 
 
 officers 
 
 Political 
 powers 
 
 certain other payments. The largest items in county expendi- 
 tures are for courts, roads, bridges, and poor relief. 
 
 The control of the county board over county work varies 
 greatly in different states. Almost without exception the county 
 board has the power to locate the important highways and 
 build the principal bridges. In some states it has direct super- 
 vision over the construction of certain roads, although this 
 function is being assumed in some states by a state highway 
 commission and in others by the local authorities. 
 
 Outside of New England, New Jersey, and Pennsylvania, 
 poor relief is an important object of county expenditure. In 
 most of the states there are county almshouses, which are 
 maintained and supervised by the county boards. In Cook 
 County, Illinois, for example, there are various special institu- 
 tions established and maintained by the county authorities. 
 With the advance in the administration of charity, however, 
 state institutions for paupers, insane persons, and defectives 
 are gradually superseding the old county poorhouse. 
 
 Throughout the United States, except in New England, the 
 county boards exercise limited police power. Before the adop- 
 tion of the Eighteenth Amendment the county boards com- 
 monly issued licenses for the liquor traffic, and in the Southern 
 and Western states they now regulate inns, taverns, auc- 
 tioneers, and other kinds of business requiring a license. Some-^ 
 
 times the board may offer bounties for the destruction of wito^ 
 animals or noxious weeds. But as a general rule the county 
 boards have little legislative power, this being usually exercised 
 by means of special acts of the legislature. 
 
 The county boards appoint only a few officers for the county 
 and have little control over those chosen by popular election. ^~^ 
 The boards may be called upon to approve the bonds which -v>^ 
 are required from some elective officers and to examine their 
 accounts. In a few states they are allowed to fix salaries, and 
 in a few others to hold hearings and remove county officials 
 for cause, but for the most part their power of control is 
 very slight. 
 
 Since the county is a political unit, the county boards, out- 
 side of New England, have important powers and duties in
 
 THE COUNTY 325 
 
 elections. In the Southern and Western states they establish 
 polling places and provide ballots. The county boards also act 
 as boards of canvassers and declare the results of elections. 
 
 3. Administration of Justice 
 The judges in thirteen widely separated states are selected centraiiza- 
 
 tiou sclcc- 
 
 by the state authorities. In all the New England states, except tion of 
 Rhode Island and Vermont, and in Delaware, Florida, Missis- ^""^^^^ 
 sippi, and New Jersey the governor makes nominations subject 
 to the approval of his council, the senate, or, in Connecticut, 
 the legislature. The legislature elects the judges in Georgia, 
 Rhode Island, South Carolina, Vermont, and Virginia, while 
 in the other states they are chosen by popular vote for varying 
 terms. ^ As a rule the judges for courts of general jurisdiction 
 are chosen for a district which may include one or more coun- 
 ties. East of the Mississippi River these are called circuit 
 judges, while farther west the term "district judges" is used. 
 In general, the circuits or districts constitute the smallest area 
 for judges exercising general jurisdiction. An exception should 
 be noted in the case of large cities, where are established 
 special municipal courts with definitely enumerated jurisdic- 
 tion. Although judges are elected by districts and usually hold 
 court within the district, the judges of the circuit or district 
 courts are considered state officers and may exercise jurisdic- 
 tion in any part of the state. Thus it happens not infrequently 
 that judges from country districts, where there is less busi- 
 ness before the court, are transferred to those districts with 
 crowded calenders. 
 
 About one third of the states have county courts, which sit county 
 
 courts 
 
 side by side with the courts of general jurisdiction just men- 
 tioned. They are found all over the United States and are 
 not confined to any particular group of states or aggregates 
 of population. The jurisdiction of the county courts varies 
 greatly : in California and Pennsylvania they exercise general 
 jurisdiction ; in New York they are limited in civil jurisdiction 
 to cases not involving more than two thousand dollars, and 
 
 iSee pages 278-281.
 
 32 6 STATE AND MUNICIPAL GOVERNMENT 
 
 they may not try cases of murder ; in Illinois they have original 
 jurisdiction in tax-assessment and inheritance cases and appel- 
 late jurisdiction from the justices of the peace.^ 
 Nonjudicial The county courts in some states are primarily nonjudicial 
 of'the bodies. For example, in Arkansas, Georgia, and Oregon the 
 
 county court has no civil or criminal jurisdiction, but does exercise 
 
 courts •' ' 
 
 probate jurisdiction. In Kentucky and Tennessee it carries on 
 both administrative and judicial functions, while in ^lissouri 
 and West Virginia the county court has no judicial functions 
 whatever and is purely an administrative body. 
 Probate Probate administration, or the hearing and determination 
 
 adminis- 
 
 tration of questions arising in matters concerned with proving wills 
 or the administration of estates, is more wndely decentralized 
 than the administration of justice. In practically all the states 
 the administration of probate is a county matter. Where the 
 county courts are regularly established they are given probate 
 administration, and in some cases it is their only function ; in 
 most of the other states special probate courts are established, 
 sometimes for districts smaller than that of a county, and 
 special probate judges are generally elected by popular vote, 
 although the other judges may be chosen by a different method. 
 In Massachusetts, however, the probate judges, like all the 
 other judges, are appointed by the governor with the consent 
 of his council. 
 
 Prosecuting The prosecuting attorney is an important officer in the ad- 
 ministration of justice.- He conducts all criminal prosecutions 
 and may represent the county in civil suits. In most states he 
 is an officer of the county and is elected by popular vote, 
 but in some he is chosen by districts larger than any one 
 county. The functions and duties of the prosecuting attorney, 
 
 iThe administration of justice is well treated in both J. A. Fairiie, 
 Local Government in Counties, Towns, and \'illages, pp. 95-118, and 
 H. G. James, Local Government in the United States, pp. 134-160, 
 197-200; see also papes 269-277. 
 
 -See page 289, also H. G. James, Local Government in the United States, 
 pp. 144-151, and H. S. Gans, "The Public Prosecutor: his Powers, 
 Temptations and Limitations," in Annals of the American Academy of 
 Political and Social Science, Vol. XLVII, pp. 120-124. 
 
 attorneys
 
 THE COUNTY 327 
 
 together with his importance as a judicial officer, have been 
 discussed in a previous chapter/ 
 
 Every county has a sheriff; he is the officer who represents The sheriff: 
 the executive power of the state within the county.- The 
 sheriff is responsible for the preservation of the peace and is 
 the chief executive agent of the courts of the county. Every 
 sheriff is assisted by a varying number of deputy sheriffs, who 
 are appointed by him and act under his control. They may 
 not perform discretionary acts, but may undertake any minis- 
 terial act which the sheriff may perform, and he, as a general 
 rule, is responsible for their errors and mistakes. 
 
 In all the states the sheriff is a popularly elected county of- ro selection 
 
 . . , , . . , and com- 
 
 ficer, servmg for varymg lengths of term. At common law pensation 
 no compensation was allowed to the sheriff, but by statute 
 he was permitted to charge certain fees for his services. 
 Under the fee system the sheriff's compensation became enor- 
 mous in some counties — in New York County it was said to 
 be $50,000 at one time, and in some counties in Ohio nearly 
 $40,000. Even where the fee system has been abolished 
 and a fixed salary established, the sheriff is the best-paid 
 county officer. 
 
 As an officer charged with the preservation of the peace, the (2) as an 
 sheriff enforces the state laws, and he is a state officer from officer™ ° 
 this point of view. 
 
 He may upon view, without writ or process, commit to prison all 
 persons who break the peace or attempt to break it ; he may award 
 process of the peace and bind anyone in recognizance to keep it. He 
 is bound, ex officio, to pursue and take all traitors, murderers, felons, 
 and other misdoers and commit them to jail for safe custody. For 
 this purpose he may command the posse comitatus, or power of the 
 county ; and this summons, everyone over the age of fifteen years is 
 bound to obey.^ 
 
 ^See pages 289-290. 
 
 2See Bouvier, Law Dictionary, under "Sheriff"; see also J. A. Fairlie, 
 Local Government in Counties, Towns, and ^^illages, pp. 106-112, and 
 H. G. James, Local Government in the United States, pp. 151-157. 
 
 ^South V. Maryland, 18 How. 396, 402. Quoted by J. A. Fairlie, 
 Local Government in Counties, Towns, and Villages, p. 109.
 
 32 8 STATE AND MUNICIPAL GOVERNMENT 
 
 [Importance This power is of importance in times of threatened riot 
 enforcement ^T serious disturbance, particularly in cases of strikes. In 
 officer] general it rests with the sheriff to decide what measures he 
 shall take to suppress the disorder : he may attempt to control 
 it by his deputies, or he may summon a posse comitatus, or 
 call upon the governor for state troops ; in extreme cases he 
 may, through the governor, ask the aid of the national troops. 
 During ordinary times the functions of the sheriff as a peace 
 officer are less appreciated. There are no organized county 
 police, and the sheriff does not have control of the police force 
 in the cities or the constables in the towns. He thus has very 
 little actual power to enforce the laws of the states. Neverthe- 
 less much depends upon the character of the sheriff for the 
 maintenance of law and order, especially in rural communities. 
 Failure to enforce certain statutes and the all too frequent 
 outbreaks and lynchings show the necessity of some well- 
 organized state or county police. 
 
 As has been said, the sheriff is an agent of the state.^ In 
 this capacity he is primarily responsible in theory to the execu- 
 tive department of the state government and in particular to 
 the governor. Although the sheriff occupies such a position the 
 governor in most states has very little power of supervision 
 and direction, but in a few states- he is given power to remove 
 sheriffs for cause, and this has been done in some cases. This 
 situation is only another example of the weakness of the 
 decentralized and disintegrated executive departments which 
 characterizes most of the states. 
 
 The greater part of the sheriff's work is as executive agent 
 of the courts. At each session the sheriff is present, either in 
 person or through his deputy, for the maintenance of order in 
 the courtroom. Furthermore, he carries into execution the 
 various orders which the court has made in the disposition of 
 the cases. He thus serves all writs and orders, summonses and 
 subpoenas, warrants of arrest and attachments. In addition, 
 he executes the final judgment of decree of the court. This in- 
 volves, in civil cases, collecting the award, and may include the 
 seizure and sale of property in order to satisfy the judgment. 
 'See pane 169. -Michigan, New York, and Wisconsin. 
 
 (■3 1 As an 
 agent of 
 the state 
 
 (4) As an 
 agent of 
 the court
 
 THE COUNTY 329 
 
 In criminal cases the sheriff as keeper of the county jail has 
 custody of the prisoners confined there and guards and delivers 
 prisoners sentenced to other institutions. Furthermore, in the 
 majority of states he is charged with the execution of criminals 
 sentenced to death. 
 
 The coroner is the oldest of all elective county officers. It The coroner 
 is his duty to hold an inquest in cases where it seems probable 
 that death resulted from violence or unlawful means. The 
 usual practice is for the coroner to summon a jury, ordinarily 
 of six persons, who, from the evidence presented to them and 
 the more or less expert testimony of the physician, bring in a 
 verdict and make accusations. Anyone accused by the verdict, 
 if not already in custody, is liable to arrest on warrant issued 
 by the coroner. The duties demanded of the coroner involve 
 technical knowledge of two sorts : he needs to be both a lawyer 
 and a physician, able to make a correct diagnosis, weigh evi- 
 dence, and preside over his jury. A man of these abilities is 
 seldom chosen, and coroners' inquests have traditionally been 
 subjects of derision. Massachusetts, in 1877, adopted the sys- 
 tem of medical examiners, who report the cause of death, and 
 if there is evidence of crime further action is taken by the 
 regular prosecuting officer. 
 
 In less than half the states the office of county clerk has county 
 been established. Elsewhere the recording officer of the county co"rt^ ^° 
 is known as the clerk of the courts. As such, the clerk ^^^^^^ 
 opens and adjourns each session of the court, prepares the 
 docket of cases for trial, files all papers connected with each 
 'case, issues writs, enters the judgment of the courts, and 
 keeps the minutes of the proceedings. The duties are almost 
 entirely ministerial. In connection with the county board the 
 clerk of courts serves as secretary and keeps the records of its 
 proceedings and in some cases acts as county auditor. In 
 Minnesota, however, the county auditor acts as clerk of the 
 county board, and the clerk of courts is simply an officer of 
 the court. Almost universally the county clerks and court 
 clerks are electit^e officers, although in Connecticut, New 
 Hampshire, and Vermont they are appointed by the judges and 
 hold office during pleasure of the appointing power.
 
 330 STATE AND MUNICIPAL GOVERNMENT 
 
 Finance 
 officers : 
 (1) County 
 assessors 
 
 (2) The 
 
 county 
 
 treasurer 
 
 4. Other County Officers 
 
 In most of the Southern and in practically all the Western 
 states the value of property for taxation is determined by 
 county assessors.^ Their main duties are to prepare lists of 
 persons subject to taxation, with a description and valuation 
 of their property. Taxpayers in some states are required to 
 submit itemized lists of their property, but such lists do not 
 necessarily limit the valuations made by the assessors. In 
 fixing these values the assessors act in a judicial capacity, but 
 appeals to the courts may be made in case of arbitrary or 
 grossly unequal valuations. Outside the group of states just 
 mentioned assessments are made by the township officers, but 
 as a rule there is a county officer or board which acts as an 
 equalizing authority. 
 
 Every state except Rhode Island provides for a county 
 treasurer, who is usually elected.- This officer receives the 
 state and county taxes and has custody of the county funds, 
 which they disperse according to county warrants. In some 
 states there is a special officer who acts as tax collector; else- 
 where this is the duty of the treasurer. The treasurer's term of 
 office is usually two years, and not infrequently the same person 
 is prohibited from serving more than four years in succession 
 in order to insure an exact examination of the county funds. 
 County treasurers formerly considered it their private preroga- 
 tive to receive all interest which banks allowed them on the 
 deposit of county money, the theory of this being that the 
 county treasurer was personally responsible for all the county- 
 funds. In rich counties this amounted to a large sum; thus, 
 in 1904 the treasurer of Cook County, who had agreed to turn 
 over to the county all such interest, paid in $500,000.^ Many 
 
 iln North Carolina and South Carolina and in Tennessee there are 
 township or district assessors; in California the valuation of property 
 for city taxes is made by city officers. On the other hand, county 
 assessment is the rule in Illinois and Nebraska, and in South Dakota 
 counties without townships. 
 
 -In Connecticut, Kentucky, Louisiana, New Jersey, and Vermont they 
 are appointed by county boards; in South Carolina by the governor. 
 
 "J. A. Fairlic, Local Government in Counties, Towns, and Villages, 
 PI). 123-124.
 
 THE COUNTY 331 
 
 states at present require the county treasurer to return to the 
 county all interest received on the deposit of public funds, 
 and pay him a fixed salary and the expenses of his office. 
 
 In less than one half of the states county auditors are (3) county 
 
 auditors 
 
 prescribed by statute. Indeed, such officers are most necessary 
 with the increasing importance of the financial operations of 
 the county. Where auditors exist they are paid sometimes on 
 the per-diem basis or by fees, and sometimes by fixed salaries 
 — under the fee system the auditor of Cuyahoga County, Ohio, 
 received $50,000 in 1903.^ Where auditors are not established 
 by statute the county board itself audits the accounts of the 
 treasurer. In some counties in Michigan there are boards of 
 auditors which practically determine the appropriations as well 
 as audit the claims. 
 
 Titles to real estate and all documents affecting such titles The regis- 
 
 , . „ _, . J trar of deeds 
 
 are matters of record in all states. Moreover, these records 
 are kept by county officers and, in about half of the states, by 
 an elective officer known as the registrar of deeds. This officer 
 is required to keep in bound volumes all deeds, mortgages, and 
 documents affecting the titles to real estate, together with a 
 description of the estate. From these volumes, and only by 
 means of such records, can the titles to real estate be secured. 
 In order to make sure that the title to a piece of real estate 
 is good, the title must be traced through each succeeding sale 
 and transfer, and examination must be made of all mortgages 
 and claims that have at any time been recorded against the 
 estate. This process is extremely technical, tedious, and com- 
 plicated. In order to avoid this, and to make the transfer 
 of real estate more easy and the title more secure, some states 
 have adopted the so-called Torrens System of land registration. 
 By this system, after judicial hearing, a special court grants 
 a clear title which is guaranteed by the state. From the fees 
 charged for this service an insurance fund is accumulated which 
 may be used to compensate faulty decrees. This system has 
 much to commend it and has met with general approval from 
 all but the lawyers and companies engaged in searching titles. 
 
 ij. A. Fairlie, Local Government in Counties, Towns, and Villages, 
 p. 127.
 
 332 STATE AND MUNICIPAL GOVERNMENT 
 
 School Outside of New England all the states have county school 
 
 officials with some power of educational control. In the 
 Southern states the county school authorities very frequently 
 have full control and management over all the schools within 
 the county, while in the remaining states they have supervision 
 over the officers elected by the townships and cities. This con- 
 trol in the South is exercised by two sets of officers — the 
 county superintendents and the boards of education, which 
 usually control the school property, make appropriations, and 
 sometimes appoint the teachers. The superintendents visit the 
 schools, act as executive agents of the board, and exercise 
 general supervision over the courses of study and the methods 
 of teaching. In the other states where county school officials 
 are chosen, the county superintendents are more important 
 than they are in the South. In general they examine the 
 candidates for appointment as teachers and issue licenses, 
 although this function is sometimes performed by county ex- 
 aminers. The superintendents visit the schools, advise the 
 teachers, organize teachers' institutes, and sometimes consult 
 with the local bodies. Furthermore, they sometimes act as 
 agents of the state department of education.^ 
 
 ipor a general discussion of administration in school matters see 
 pages 172-176.
 
 CHAPTER XVIII 
 
 MINOR DIVISIONS OF LOCAL GOVERNMENT^ 
 I. The New England Town 
 The towns in New England have been defined by the United Definition 
 
 ,,.., . . 1-v and char- 
 
 States Supreme Court as territorial corporations, into which acteristics 
 
 the state is divided by the legislature, from time to time, at its 
 discretion, for political purposes and the convenient adminis- 
 tration of government ; they have those powers only which 
 have been expressly conferred upon them by statute, or which 
 are necessary for conducting municipal affairs."- Originally 
 the New England towns were only quasi-corporations, and in 
 some states the property of any individual inhabitant might be 
 seized to satisfy a judgment against the town. Now, however, 
 the corporate character of the towns is more clearly established, 
 and in some cases they partake of the characteristics of 
 municipal corporations. Except in the northern regions of 
 New Hampshire and INIaine the entire territory of the New 
 England states has been divided into organized towns. These 
 towns are irregular in size and shape and usually contain from 
 twenty to forty square miles. In population they also exhibit 
 great variations — the town of Brookline, Massachusetts, hav- 
 ing nearly 40,000 inhabitants, while three quarters of the 
 towns in New England have a population of less than 2500. 
 Generally the larger communities have adopted the form of 
 city government which absorbs that of the town, but Hartford 
 and New Haven, Connecticut — cities of 100,000 and over — 
 
 1 These are more fully treated in J. A. Fairlie's "Local Government in 
 Counties, Towns, and Villages," pp. 141-215, which has been freely 
 consulted in preparing this chapter, and in H. G. James's "Local 
 Government in the United States," chap. v. 
 
 2J. A. Fairlie, Local Government in Counties, Towns, and Villages, 
 pp. 142-143, quoting Justice Gray in Bloomfield v. Charter Oak Bank, 
 121 U.S. 121, 129. 
 
 333
 
 meeting 
 
 334 STATE AND MUNICIPAL GOVERNMENT 
 
 retain the separate town organization. In New England, 
 contrary to the practice of the Western states, there is no 
 separate village government for settlements within the town, 
 with the result that the towns are generally larger than those 
 in the Western states and perform wider functions. 
 The town The New England towns are governed by the town meeting. 
 This is a direct primary assembly of all the inhabitants of 
 the town qualified to vote. Commonly town meetings are held 
 once a year, although special meetings may be called from 
 time to time. The assembly of a town meeting involves issuing 
 a warrant which designates not only the time and place at 
 which the meeting is to be held but the business to be trans- 
 acted. This warrant enumerates in detail the definite items 
 of business which are to be taken up. Sometimes, however, 
 one of the clauses of the warrant allows the town meeting to 
 transact any other business that may be brought before it. 
 The warrant is drawn up by the officers of the town (the 
 selectmen), who have considerable discretion as to what shall 
 be placed upon the warrant. The town meeting is called to 
 order by the town clerk or by one of the selectmen, and the 
 first business is to choose a moderator for the meeting. It is 
 the practice of many New England towns to choose the same 
 person for moderator year after year, often one who is not 
 one of the selectmen. This gives the town meeting a semblance 
 of independence of the town officers. In many towns this 
 independence is more than a mere pretense, for the meeting 
 freely criticizes the town officers in their duties. The business 
 of the town meeting falls into two classes: the first is the 
 election of the town officers ; the second — perhaps the more 
 important, and certainly the more interesting — is the discus- 
 sion and voting of the articles on the warrant. The election 
 of officers is conducted by means of ballots and in larger 
 towns differs little from an ordinary local election. The adop- 
 tion of the articles on the warrant is a unicjue and interesting 
 jMocedure. The town clerk reads each article in turn, and 
 each is subject to debate and amendment by the members of 
 the town present at the meeting. In the rural New England 
 towns, where the population is largely native American, this
 
 MINOR DIVISIONS OF LOCAL GOVERNMENT 335 
 
 debate and discussion is interesting and educating. Not only- 
 are the policy of the selectmen and their actions during the 
 previous year subject to minute criticism, but the future policy 
 of the town is discussed. The participants show great native 
 shrewdness and often considerable skill in debate. The town 
 meeting has authority to levy taxes and to appropriate money 
 for all the objects of town activities. These include highways, 
 schools, poor relief, and, in varying degrees, water supply, 
 drainage, sidewalks, lighting, and other town activities. For- 
 merly attendance at the town meetings was large, and the 
 plans for town activities were actually formulated there. More 
 recently, as many of the towns have increased in population, the 
 proportion of the voters attending the meeting has declined.^ 
 Frequently the affairs of the town, as well as the nominations 
 for officers, are decided in caucuses, and the meeting itself 
 has degenerated into a ratification assembly. Even in these 
 cases, however, there is always opportunity for debate and 
 criticism, and the town meetings have great educative value 
 in self-government. 
 
 The most important officers of the town are the selectmen.- Town 
 Towns usually choose three selectmen annually, although there (d The 
 are some instances of a larger number, and in Massachusetts selectmen 
 the three selectmen are chosen for three years, each one retir- 
 ing in rotation. The selectmen form the administrative board 
 of the town. They differ from the boards of aldermen in cities 
 and from the county boards in that they have no power to levy 
 taxes nor to make ordinances. Their powers are determined by 
 the town meeting or are conferred by statute, and they vary 
 greatly from town to town. In general, the selectmen issue war- 
 rants for the town meeting ; they lay out highways and drains, 
 grant licenses, and have charge of town property ; in some cases 
 they act as assessors and sometimes as poor-relief and health 
 officers. Their financial powers are slight, but they may draw 
 warrants upon the town treasurer in accordance with the vote 
 of the town meeting and adjust claims against the town. 
 
 iln some of the larger towns the town meeting is replaced by a 
 representative body. 
 
 -In Rhode Island the town council.
 
 336 STATE AND :MUXICIPAL GOVERNMENT 
 
 (2) The 
 town clerk 
 
 (3)Assessors 
 
 (4) The 
 
 town 
 
 treasurer 
 
 (5) The 
 
 school 
 committee 
 
 (6) The jus- 
 tices of the 
 peace 
 
 The town clerk acts as secretary of the town meeting and 
 has charge of the records of the town. He issues marriage 
 licenses, registers births and deaths, and in Connecticut and 
 Rhode Island has some of the functions of the registrar of 
 deeds in recording deeds, mortgages, and other papers affecting 
 the title of land. Nominally the town clerk is elected each 
 year, but in practice he is frequently reelected, and there are 
 instances of clerks serving between forty and fifty years. 
 
 In some towns the selectmen act as assessors of taxes, but 
 in the larger towns special officers are elected. Their duty is 
 to value the property of the town and assess the taxes accord- 
 ing to the votes of the town meeting and those prescribed for 
 state and county purposes. 
 
 The town treasurer receives all the money collected by taxes. 
 These, it should be remembered, include the town, county, 
 and state taxes, which are ordinarily collected at one time by a 
 single officer and paid by the treasurer to the county and state 
 authorities. The treasurer also pays out money according to 
 the warrants signed by the selectmen and keeps account of the 
 financial condition of the town. 
 
 Every town elects a school committee to which women have 
 long been eligible in most states. In the majority of the New 
 England states the town school committee has full control over 
 the schools — appointing the teachers and regulating the course 
 of study. It generally acts through an executive officer known 
 as the school superintendent, whose duties are advisory and 
 supervisory. It is not uncommon for small adjacent towns to 
 combine in employing the services of a superintendent. In 
 Connecticut and Rhode Island some of the towns are divided 
 into school districts, each of which is controlled by a school 
 board known as trustees, which applies the taxes voted by the 
 district for the school. This is the extreme sign of decentral- 
 ized administration. 
 
 In Maine and jSIassachusetts the justices of the peace are 
 appointed by the governor ; in the other New England states 
 they are elected by the towns. Their judicial functions in the 
 former states are very slight: they may summon witnesses, 
 hold preliminary incjuiries, and commit persons for trial ; they
 
 MINOR DIVISIONS OF LOCAL GOVERNMENT 337 
 
 also may take acknowledgments^ and perform marriage cere- 
 monies. In the other New England states the justices of the 
 peace have limited judicial powers. 
 
 Every town has one or more constables who are peace officers (7) other 
 and whose duty it is to arrest violators of the law. In actual "^^""^^ 
 practice they do not perform many police functions, and their 
 duties are chiefly ministerial in the execution of writs and 
 warrants. Yet sometimes they act as collectors of taxes. In 
 many towns they serve as highway officers, although in recent 
 years the extension of state roads has somewhat limited their 
 functions. jSIost towns in New England have library trustees, 
 park commissioners, and a large number of minor officials. 
 
 2. Townships in the Central States 
 
 Throughout the central states organized townships are bodies Definition 
 corporate and politic. Their corporate capacity, however, is actenstics 
 strictly limited, and they are more properly classified as quasi- 
 corporations.^ They may sue and be sued, may make con- 
 tracts for the exercise of their legal powers, and may hold land. 
 Their position is twofold : they are districts for purely local 
 affairs and they are also agencies for state and county business. 
 Inasmuch as in this group of states the county is a more impor- 
 tant agency of local government than it is in New England, the 
 township occupies a less important place. Moreover, through- 
 out this group of states are found incorporated villages which, 
 on the one hand, reduce the importance of the township as do 
 the incorporated municipalities on the other. As agencies of 
 the county and state, the townships assess and collect the 
 taxes for them and also act as election districts. Most of the 
 territories in this group of states are divided into organized 
 townships which are regular in form west of Ohio and are 
 approximately six miles square. 
 
 There are two types of township meetings found in this re- Township 
 gion. In the Northern states, which were settled by immigrants ™^^ ^^^^ 
 
 ^The act, by one who has executed a deed, of going before some 
 officer or court and acknowledging that it is his act and deed. 
 
 -J. A. Fairlie, Local Government in Counties, Towns, and Villages, 
 p. 167.
 
 officers 
 
 338 STATE AND MUNICIPAL GOVERNMENT 
 
 from New England or under New England influence, town- 
 ship meetings are established by statute, and primary meet- 
 ings of the qualified voters are held. The attendance at these 
 meetings varies greatly, but in general it is considerably less 
 than that at the town meetings of New England. One reason 
 for this may be found in the character of the business. In 
 New York the town meeting has no taxing power, all town 
 taxes being levied by the county board of supervisors. In other 
 states the township meeting is given the power to levy taxes, 
 but in IMichigan the township board may levy these for ordi- 
 nary purposes in case the meeting refuses or neglects so to do. 
 The southern tier of the central states^ has no deliberative 
 township meetings. Elections are held at which questions may 
 be submitted for popular approval, but there is no genera] 
 assembly for debate and decision of local issues. 
 Township Two typcs of cxccutive officers are found in this group of 
 states. In the Dakotas, Iowa, Minnesota, Ohio, and Pennsyl- 
 vania the township supervisors or trustees have a position 
 analogous to the selectmen of New England, while in the other 
 states there is more likely to be an executive officer with well- 
 defined duties. In some states- he not only acts as township 
 officer but represents the town on the county board. The duties 
 of these officers vary much in different states : in two^ the 
 supervisors act as town treasurers and can also prosecute in the 
 name of the town ; in Michigan they are the assessors and 
 overseers of the poor; in Indiana the town trustee has charge 
 of the township finances, is overseer of the poor and treasurer, 
 trustee, and clerk of the school township, is an election officer, 
 and also is authorized to rearrange road districts. The town- 
 ship boards act primarily as auditors of the accounts of the 
 township officers and may authorize the payment of claims. 
 In some states they have the power to issue licenses, to fill 
 the vacancies in township offices, and (in Missouri) to levy 
 township taxes. As a rule, where there is no single head officer 
 of a township, the board performs the general administrative 
 functions and usually has the power to levy taxes. 
 
 ' Indiana, Iowa, Kansas, Missouri, Ohio, and Pennsylvania. 
 
 - Illinois, Michigan, New York, and Wisconsin. ^Illinois and New York,
 
 MINOR DIVISIONS OF LOCAL GOVERNMENT 339 
 
 The townships in this region have substantially the same other 
 officers as the New England town, but their duties and powers °*^"^® 
 are of less importance, inasmuch as throughout this region the 
 county authorities perform or supervise more services than in 
 New England. Among these officers should be mentioned the 
 township clerks, assessors, treasurers, overseers of the poor, and 
 highway overseers. 
 
 In this group of states justices of the peace are elected by the The justices 
 townships. Primarily they are county officers, but they gen- °* ^^^ ^^*^* 
 erally perform their functions only within the town from which 
 they are elected. Everywhere they exercise judicial power in 
 minor cases. This, however, is strictly limited — in civil cases 
 generally to those not involving sums greater than from one 
 hundred to three hundred dollars ; in criminal cases to petty 
 crimes and misdemeanors. For more serious criminal offenses 
 they may issue warrants, hold preliminary hearings, and commit 
 the prisoners for trial or release them on bail. 
 
 In the central states school districts are local corporations school 
 distinct from the township corporations. Generally, however, 
 they correspond in area to the townships or may be subdivi- 
 sions of them. In many of the states provision is made for 
 school meetings of the voters of the districts, which are like 
 the town meetings of New England. They elect the school 
 officers, vote taxes, locate sites for schools, and decide upon 
 questions of management. It is usual for three trustees to be 
 chosen as district officers, who constitute the board which 
 actually manages the schools. 
 
 3. County Districts in the South and West^ 
 
 In the Southern and Western states there are no quasi- character- 
 corporations corresponding to the towns of New England and county* 
 the townships of the central states. For the purpose of manag- t^e^south" 
 ing local affairs the counties are divided into districts which and west 
 differ in two important respects from the other areas of local 
 government just discussed. They are simply subdivisions of the 
 
 ^See J. A. Fairlie, Local Government in Counties, Towns, and Villages, 
 chap. xi.
 
 340 STATE AND MUNICIPAL GOVERNMENT 
 
 Districts of 
 the South- 
 ern states : 
 (i) County 
 districts 
 
 (2) School 
 districts 
 
 county for the purposes of administration, and as such have 
 no power to levy taxes or to pass ordinances, and, with the 
 exception of the school districts, have no corporate character. 
 In the second place, the practice in the South and West differs 
 from that in the North, where a single district is used for all 
 purposes of local administration. In the former separate dis- 
 tricts are established for different purposes, and these districts 
 are not necessarily conterminous, although they may overlap 
 one another. 
 
 Two types of districts are usually found in the Southern 
 states. The first is for the purposes of county administration 
 and is known by many designations, as magisterial district,^ 
 civil district,- township,^* election district or precinct,* super- 
 visor's district,^ militia district,'"' hundred,' ward,* precinct.® 
 These districts are used for the election of members of the 
 county board and in some states for the election of justices of 
 the peace and of assessors. The justices of the peace have nearly 
 the same jurisdiction as in the states that have already been ex- 
 amined, and occasionally they are also members of the county 
 boards and the general public agents for the districts in local 
 affairs. All the Southern states are also divided into school 
 districts; in the states bordering on the Atlantic the district 
 school officers are appointed by the county school authorities, 
 but in some of the other states the districts include only a 
 single school, and the trustees or directors are locally elected. 
 As has been pointed out, the school districts have a corporate 
 character. Several reasons might be advanced for the small 
 part played by these county districts in local government. 
 Most obviously the counties in the South have wider functions 
 than those in New England. But it should be also remembered 
 that the population in the South is of a more rural character 
 and the estates are much greater. Moreover, the presence of the 
 negro population, which is generally debarred from the privi- 
 leges of taking part in government, prevents the development 
 
 1 Kentucky, Virginia, and West VirRinia. 
 
 ^Tennessee. 
 
 •''Arkansas, Montana, North Carolina, and South Carolina. 
 
 ••Alabama, Florida, and Maryland. "Mississippi. "Georgia. 
 
 "Delaware. ^Louisiana. "Texas.
 
 MINOR DIVISIONS OF LOCAL GOVERNMENT 341 
 
 of the active local governments found in the North. All these 
 factors combine to render these districts less important than 
 the towns and townships in other states.^ 
 
 The county districts in the Western states are generally The west- 
 
 . r 1 T4T-JJ1 iiT ern states 
 
 larger than the congressional townships of the Middle west 
 and the county districts of the South. Except in Oregon the 
 cities and villages are commonly included within the county 
 district. As a rule, justices of the peace and constables are 
 chosen in each district with functions similar to those described 
 in other sections. In addition to these divisions of the county, 
 road districts may also be formed. But more important than 
 these are the school districts, which are established by the county 
 boards or county superintendents of schools. Broadly speak- 
 ing, there is a district for every school, although city districts 
 naturally include more than one school. In each district there 
 is chosen a board of trustees which employs the teachers and 
 controls the school property. When the taxes for the support of 
 the schools are levied by the county board of supervisors, a 
 special district tax may be voted by the electors in each district. 
 
 4. Villages and Boroughs 
 
 Villages or boroughs are small, compactly built districts Definition 
 possessing charters of incorporation. They differ from the 
 municipal corporation or cities chiefly in size and from the 
 New England towns in that they usually include only those 
 parts of a township which are compactly settled. In many 
 states they are known as villages, but often they are called 
 towns or incorporated towns. The method of incorporation 
 usually requires a petition from the inhabitants of the district 
 and a popular vote. This petition may be presented to the 
 judge of the principal local court, or to the county board or 
 town supervisor, according to prescription. In some states the 
 villagers remain a part of the township,- while in others they 
 are independent of it. 
 
 iSee J. A. Fairlie, Local Government in Counties, Towns, and Villages, 
 
 pp. IQI-IQS- 
 
 2 Illinois, Indiana, Iowa, Kansas, Michigan, New York, and Ohio. 
 
 3 The Dakotas, Minnesota, New Jersey, Pennsylvania, and Wisconsin.
 
 342 
 
 STATE AND MUNICIPAL GOVERNMENT 
 
 Functions 
 of the 
 villages 
 
 Village or- 
 ganization 
 
 Village 
 officers 
 
 The functions of the villages vary in different parts of the 
 country. In New England they are relatively of little impor- 
 tance, as they only supplement the organized active life and 
 duties of the town. Wherever the villages remain parts of the 
 township their status is about the same as in New England, 
 but where they are independent of the township the village 
 government usually adds the duties ordinarily performed by 
 the town. In general, the villages provide for fire protec- 
 tion, street pavements, sidewalks, sewers, waterworks, street 
 lighting, and police. 
 
 The principal authority in a village is the council or board 
 of trustees. Such councils have power to pass ordinances on 
 subjects enumerated in the statutes; they have control of the 
 streets, and authority to issue licenses for certain occupations 
 and to construct the necessary public works. To accomplish 
 these purposes the village councils have limited power of tax- 
 ation and generally may issue bonds for certain purposes, 
 although the amount of these bonds and the objects for which 
 they may be issued are regulated by statute. 
 
 The village officers are ordinarily prescribed by statute, 
 although the village may in some cases establish and appoint 
 additional ones. In every village there is a chief officer, known 
 by various titles — mayor, president, or chairman of the board 
 of trustees. The other officers include a village clerk, a treas- 
 urer, and some police officer. Most villages have a street com- 
 missioner and, in some states, assessors and attorneys. Not 
 infrequently villages are conterminous with school districts, 
 and in New York State the village law makes provision for 
 boards of health and for fire, water, lighting, sewer, and 
 cemetery commissioners.
 
 PART V 
 MUNICIPAL GOVERNMENT
 
 CHAPTER XIX 
 
 CHARACTERISTICS OF AMERICAN CITIES 
 
 A city has been defined "as a body of population massed in Definition 
 a small area."^ To the elements of population and area should 
 be added the fact of incorporation. An American city, there- 
 fore, is a municipal corporation occupying a definite area and 
 subject to the state from which it derives all its powers and 
 for which it exists as an area of local government. The Ameri- 
 can city possesses territorial and sociological characteristics, 
 which result from the massing of population on a compara- 
 tively small area. It has, furthermore, a definite relation to 
 the state government as an area of local administration. And, 
 finally, as a corporation it has definite powers and performs 
 certain very important functions for its inhabitants." 
 
 A city is formed because a number of persons are from Reasons 
 
 for 6xist6iiC6 
 
 various motives drawn together at a particular place. In the of cities 
 United States the considerations which caused and continue to 
 cause the development of cities are defensive, political, com- 
 mercial, and industrial. It was not uncommon in colonial times 
 for the colonists to group themselves around a fort; for ex- 
 ample, Pittsburgh had its origin in the settlement which grew 
 up around Fort Pitt. In like manner, some cities had de- 
 veloped around the army posts in the West. Washington is an 
 example of a city caused by political forces, and not a few of 
 
 iW. B. Munro, The Government of American Cities (3d ed.), p. 29. 
 
 2 One of the most comprehensive and detailed studies of the charac- 
 teristics of cities is' given by Dr. A. F. Weber, "The Growth of Cities in 
 the Nineteenth Century" (iSgg), Columbia University Studies in His- 
 tory, Economics, and Public Law, Vol. XI. Briefer treatments are by 
 D. F. Wilcox, The Great Cities of America, and The American City ; 
 F. J. Goodnow and F. G. Bates, Municipal Government (1919). chaps, i, 
 ii ; W. B. Munro, The Government of American Cities, chap, ii, with 
 references. For further references see W. B. Munro, Bibliography of 
 Municipal Government. 
 
 345
 
 346 STATE AND MUNICIPAL GOVERNISIENT 
 
 our state capitals have developed because a particular locality- 
 was chosen as the seat of the government of the state. By far 
 the greater part of the American cities, however, have been 
 founded and developed as the result of trade or industry. Of 
 these two motives trade is the more important. If there were no 
 external trade the limit of the industry of the city would 
 depend solely upon the demand of the local markets. It is 
 only by trade that the products of one locality can be brought 
 to other localities and exchanged for other products. Trade 
 thus depends upon transportation, and the greatest cities of 
 ancient and modern times have developed along the routes 
 of transportation. Wherever the process of transportation is 
 broken, and the goods transferred from one form of carriage 
 to another or from one owner to another, a city was almost 
 sure to develop. Thus the early American cities developed at 
 the seaports like Philadelphia, New York, and Boston, which 
 were the terminal points of the import trade. In modern times 
 the development of Chicago and the great inland cities of the 
 West is in part explained by their being points of transfer. 
 While trade is responsible for the founding and development 
 of the largest cities in the United States, industry is more im- 
 portant in the cities of the second class. In both New York 
 and Chicago a greater percentage of the population is engaged 
 in commerce or transportation than in industry. Philadelphia, 
 the third largest city in the United States, is an exception in 
 that it has a larger proportion of its population engaged in 
 industry. In some cities with a population under 500,000 
 the industrial inhabitants are from two to five times as great 
 as those engaged in commerce. 
 Area It is almost impossible to generalize concerning the area of 
 
 American cities. This varies from Los Angeles, California, 
 which has an area of 365 square miles with a population of 
 more than 575,000, to West Hoboken, New Jersey, with an 
 area of 1.5 scjuare miles and a population of about 40,000. 
 New York City has an area of more than 300 square miles ; 
 New Orleans, 198: Philadelphia, 129; Chicago, 199. No other 
 cities are more than 100 square miles in area and not many
 
 CHARACTERISTICS OF AMERICAN CITIES 347 
 
 are over 50; a large number extend between 10 and 20 square 
 miles; while about a third have less than 10. 
 
 The growth of cities is a modern phenomenon. This is par- Population 
 ticularly true in the United States, where the rapid growth of 
 cities has surpassed that in all other countries. Not only are 
 cities developing quickly, but the urban population is increas- 
 ing more rapidly than the rural population. Thus the census 
 of 1920 (see table following) shows that 54,318,032 out of a 
 total population of 105,708,771 in the continental area of the 
 United States were found in cities and towns of more than 
 2500 inhabitants; that is, 51.4 of the population was urban, 
 and 48.6 rural. 
 
 POPULATION 
 
 
 1920 
 
 1910 
 
 1900 
 
 1890 
 
 1880 
 
 Urban . . . 
 Rural . . . 
 
 54,318,032 
 51.390,739 
 
 42,623,383 
 49,348,883 
 
 30,797,185 
 45,197,390 
 
 22,720,223 
 40,227,491 
 
 14,772,438 
 35.383.345 
 
 Per Cent of Total Population 
 
 Urban . . . 
 Rural . . . 
 
 51.4 
 48.6 
 
 46.3 
 
 537 
 
 40.5 
 59-5 
 
 36.1 
 639 
 
 29.5 
 70.5 
 
 Since 1880 this change has been going on with rapidity. It 
 is impossible to state at present to what extent the World War 
 retarded or accelerated this movement. In the decade between 
 1900 and 1910 the percentage of urban to the total population 
 increased from 40.5 to 46.3. Without doubt the war increased 
 the concentration in certain industrial communities, but, like- 
 wise, the decline in immigration between 19 14 and 1920 re- 
 tarded the growth both of the total population and of the urban 
 population as well. This concentration of the majority in 
 cities profoundly affects the economic and social life of the 
 entire country. It increases, moreover, the interest and impor- 
 tance of municipal government, since the larger part of the 
 population of the United States, so far as its local government 
 is concerned, is found not in counties or townships but in 
 chartered municipalities. The urban population of the United
 
 tion 
 
 348 STATE AND MUNICIPAL GOVERNMENT 
 
 States is increasing more than seven and a half times as fast as 
 the rural — in the last decennial period the urban population 
 increased 25.2 per cent, while of the rural districts containing 
 a population under 2500 the increase was only 3.4 per cent. 
 Nine and one-half per cent of the population in the United 
 States is to be found in cities of more than 1,000,000 inhabitants, 
 and 15^ per cent live in cities of more than 500,000. In spite 
 of the remarkable growth of some of the large cities, the great 
 majority of the urban inhabitants of the United States is in 
 cities of less than 25,000. Thus, although the greater part of 
 the total population of the United States is urban, the majority 
 of that urban population is distributed in comparatively small 
 cities which are untouched or affected only to a slight degree by 
 the problems confronting the largest cities. 
 Sources of The population of cities grows in two ways : by natural 
 in popuia-^ increase of those within the city and by the migration of those 
 who were born outside of the city. In the past the natural in- 
 crease without immigration was not sufficient to maintain the 
 population of the city. The death rate was higher than the 
 birth rate.^ Thus it is estimated that in London the ordinary 
 death rate during the seventeenth century was approximately 
 fifty persons per thousand, and not until about 1800 did the 
 annual death rate fall below the birth rate.- Similar conditions 
 existed in the United States. Hence one reason for the continued 
 growth of the cities has been the decline of the death rate.^ 
 By far the larger part of the greater population, however, 
 has come from migration. In European cities this migration 
 is from a relatively short distance, but not so in the United 
 States. Although it is true that there is a steady flow of native- 
 born inhabitants from the rural districts to the cities, this is 
 greatly enforced and surpassed by immigration from abroad. 
 Such migration and immigration are from four to five times 
 as large as the natural increase in city population."* 
 
 lA. F. Weber, The Growth of Cities in the Nineteenth Century, p. 231. 
 2W. H. Munro, The Government of American Cities, p. 3Q. 
 •'See W. B. Munro, The Government of American Cities, p. ^q, for a 
 table showing the declining death rate of four large American cities. 
 •»A. F. Weber, The Growth of Cities in the Nineteenth Century, p. 246,
 
 CHAR-\CTERISTICS OF AMERICAN CITIES 349 
 
 In spite of the large immigration of foreigners to the United characteris- 
 
 , f 1 ^ . 1 1 • tics of the 
 
 States, m 19 10 less than 15 per cent of the total population urban popu- 
 was foreign-born. In rural districts only about 7.5 per cent of ^(^i^c^stnbu- 
 the population was foreign-born, but an entirely different con- tion by 
 
 •r f or * ^ iB^ce and 
 
 dition existed in cities. Of the total urban population 22.6 per nationality 
 cent was foreign-born, and in the eight cities with a population 
 of more than 500,000, 33.6 per cent of the inhabitants was 
 foreign-born. Even more startling is the percentage of foreign- 
 born in the industrial cities of smaller size. Thus, in cities with 
 populations between 25,000 and 100,000, twenty-seven had a 
 foreign-born population of more than t^t, per cent, and ten of 
 more than 40 per cent, while Passaic, New Jersey, had a 
 foreign-born population of more than 52 per cent. Even these 
 figures are surpassed by the percentages for foreign-born and 
 their native-born children. Of the total urban population 51.6 
 per cent was either foreign-born or born of foreign-born parents. 
 Only 15 per cent of the population in Woonsocket, Rhode 
 Island, was of native parentage; 13.8 per cent in Passaic; and 
 
 13.6 per cent in Lawrence, Massachusetts. In addition to this 
 large foreign-born element the population of certain cities is 
 complicated by the presence of the negroes. Taking the cities 
 having more than 25.000 inhabitants, only 6.3 per cent of the 
 population was negroes, but in certain cities the negro popu- 
 lation was more than 50 per cent.^ Startling as these figures 
 are, a comparison will show that the percentage of aliens, while 
 increasing in the country at large, has actually decreased in 
 the cities.- 
 
 Economic reasons largely determine the place of settlement [Reasons 
 of the alien immigrants. \\ hile it is true that immigrants trom concentra- 
 certain countries have taken up large rural areas, the majority c^fes]' 
 of the aliens first settle in the cities. This has been the case 
 especially in the past few decades, when the character of the 
 alien immigration coming into the country was such that the 
 
 1 Charleston, South Carolina, 52.8 per cent; Savannah, Georgia, 51.1 
 per cent; Jacksonville, Florida, 50.8 per cent; Montgomery, Alabama, 
 
 50.7 per cent. 
 
 -Goodnow and Bates, Municipal Government, p. 27. The statistics 
 in this paragraph are derived and adapted from this source.
 
 350 STATE AND MUNICIPAL GOVERNMENT 
 
 immigrant was fit for little but unskilled labor. The cities, 
 whether large or small, furnish employment for this labor. In 
 the very largest ones, where a greater proportion of the popu- 
 lation is engaged in commerce than in industry, the public 
 works and the rough manual labor required by commerce 
 absorb great numbers of unskilled laborers. In the cities of 
 the second and third class, where the greater part of the popu- 
 lation is engaged in industry, the invention and development of 
 automatic machinery has opened a wide field for unskilled 
 labor. Here the immigrants are likely to settle. Outside of 
 the cities almost the only occupation which absorbs a large 
 amount of alien unskilled labor is mining. Thus, in Pennsyl- 
 vania and the other mining states a much higher percentage of 
 aliens is found outside of the cities than is true in purely 
 agricultural states. The development of groups or colonies of 
 aliens of the same nationality naturally attracts aliens of their 
 own nation to that region. Thus, although the original number 
 of aliens of a particular nationality in any one community may 
 have been small, aliens of the same nationality are attracted to 
 the same locality. This in part accounts for the development 
 of somewhat larger alien colonies in certain cities. 
 [Effect of It was formerly held that the large number of aliens in our 
 
 immlgm- largest cities was responsible for the evils too often found in 
 tionj |-j^g government of those cities. It may be doubted whether 
 
 this excuse or explanation is adequate. As Professor Munro 
 has pointed out, Philadelphia has a smaller percentage of alien 
 population than any other of the largest cities of the United 
 States, yet Philadelphia has been for years a conspicuous ex- 
 ample of municipal misgovernment. It is entirely true that 
 most of the aliens are unfamiliar with self-government and 
 have no political traditions. It is also true that too often their 
 ignorance is exploited by political leaders for selfish reasons, 
 and it is also beyond doubt that leaders of their own nation- 
 ality and the newspapers published in their native languages 
 frequently give them incorrect ideas. Nevertheless the natural- 
 ized alien is not indiscriminating. His greatest weakness is his 
 attachment to customs or traditions incompatible with Ameri- 
 can ideals and habits and his inherited suspicion and jealousy
 
 CHAFLACTERISTICS OF AMERICAN CITIES 351 
 
 of other nationalities. Thus, reformers have frequently found 
 it impossible to gain the combined support of different groups 
 of foreign-born citizens because of their unwillingness to unite 
 with other nationalities and their fear that some cherished 
 custom might be interfered with by a political change.^ 
 
 In the total population of the United States the males out- (2) statis- 
 number the females, but in the cities the reverse is true. This population 
 is readily explained by the different character of the occupa- ^"3°^^^'°^ 
 tions. In rural districts agriculture and mining employ more 
 males than females ; in the cities, however, certain types of 
 industries employ more women than men. ^Moreover, to an 
 increasing degree, women are finding employment in commerce 
 and trade. This disproportion is constantly being increased,- 
 especially in those cities where the industries employ a large 
 number of women; for example, the textile industries. The 
 effect of such disproportion is not important in itself, but it 
 probably leads to certain very important and far-reaching re- 
 sults. While statistics show that most of the women engaged 
 in industry are unmarried, a large number of married women 
 are employed in different occupations. The number of married 
 women employed in manufacturing plants is large." The effect 
 of the employment of married women in industry is clearly 
 brought out by the mortality tables. In Fall River, for ex- 
 ample, where ^^ per cent of all the women in the city work in 
 industry, the average death rate of children under five years is 
 103. 1 per thousand; in New Bedford, where the percentage of 
 the women in industry is 22, the average death rate for chil- 
 dren under five years is 93.7 pen cent. This high mortality 
 rate for children may not be entirely the result of the employ- 
 ment of the mothers, but may be caused by the low economic 
 
 ^See W. B. Munro, The Government of American Cities, pp. 34-36. 
 
 2 See A. F. Weber, The Growth of Cities in the Nineteenth Century, 
 pp. 299-300. Although there is a larger number of male births, the 
 mortality during the first year is greater among males than females. A 
 still greater mortality diminishes the number of males in their adult life, 
 due to the more dangerous occupations in which they are engaged, to 
 vice, and to excesses. Moreover, it has been found that more women 
 migrate to cities than men. 
 
 ^See Goodnow and Bates, Municipal Government, pp. 29-31.
 
 352 STATE AND MUNICIPAL GOVERNMENT 
 
 (3) statis- 
 tics of 
 population 
 according 
 to age 
 
 (4) The mar- 
 riage rate 
 in cities 
 
 condition of the family. In such cases it may be that the 
 mother's work may result in improving the condition of the 
 family and in actually lessening the rate of mortality. Never- 
 theless the laws of some states regulate the employment of 
 women by limiting their hours and the character of their work 
 because it has been demonstrated that long hours and certain 
 types of work have a bad result upon their children. 
 
 Cities contain a larger percentage of people between the 
 ages of twenty-five and sixty-five than does the country at 
 large. The curve of ages of men and women normally approxi- 
 mates a pyramid — the newly born forming the base, the very 
 aged the apex. The curve of city populations, however, more 
 resembles a top. The heavy mortality of infants somewhat 
 narrows the base, the large immigration between the years of 
 fifteen and sixty-five tends to expand the curve at this point, 
 while the mortality above the age of sixty, being greater in 
 cities than in rural districts, tends to sharpen the top of the 
 curve. ^ The cities therefore contain an undue proportion of 
 people of middle age and at the height of their mental and 
 physical activity. There are fewer children and fewer old 
 people. Hence there is a relatively larger percentage of their 
 population engaged in production than is true in the rural com- 
 munities. Thus the productive population is burdened with 
 the care of fewer dependents, whether young or old, than is 
 the country population. As a result, it might reasonably fol- 
 low that the population of the city would be more alert and 
 animated than the country population. 
 
 The marriage rate in cities is higher per thousand than that 
 in country districts. Several reasons may account for this. 
 In the first place, the cities contain a greater percentage of 
 persons of marriageable age than do the rural districts. In the 
 second place, economic conditions, which give the city-dweller 
 a greater income power than the country-dweller, increase the 
 opportunity for marriage. It must not be overlooked, more- 
 over, that in many cities the industrial life gives to married 
 
 ^See A. F. Wcbcr, The Growth of Cities in the Nineteenth Century, 
 pp. 300 et seq. W. B. Munro, The Government of American Cities, p. 31, 
 reproduces a chart showing the age curves of France and of Paris.
 
 CHARACTERISTICS OF AMERICAN CITIES 353 
 
 women the chance for employment. It may be, too, that the 
 statistics of cities with regard to marriages performed are more 
 accurately kept than those in rural districts. Finally, in an 
 appreciable number of cases the inhabitants of rural districts 
 go to the cities to have the marriage ceremony performed. 
 Nevertheless, in spite of the higher marriage rate in American 
 cities, there is a relatively smaller proportion of married per- 
 sons in cities than in rural districts. This may be explained 
 in several ways. In the first place, the rural immigration to 
 cities is largely an unmarried one, thus leaving an undue num- 
 ber of married persons in the country. Not infrequently married 
 couples leave the city and take up their residence in suburbs, 
 and so decrease the number of married persons within the city. 
 Finally, the higher male mortality in the city lowers the relative 
 number of married persons and adds to the number of widows. 
 
 The birth rate in cities was formerly lower than that in (5) The 
 country districts, but such is not now the case. In general, at inatles^ 
 the present time, the birth rate increases with the density of 
 the population and therefore is higher in cities than in the 
 rural districts and in the country at large. One explanation 
 which was formerly put for^vard was that this birth rate was 
 due to the fecundity of the aliens, but it has been found that 
 among the native-born the birth rate in cities is higher than in 
 country districts. A more obvious and correct explanation of the 
 phenomenon is that the city contains more women of childbear- 
 ing age than does the country. The economic influence of the 
 city, moreover, must not be overlooked. Under the factory sys- 
 tem in industry a man may marry early because female and 
 child labor soon become a help rather than a burden.^ How- 
 ever, with the increasing restrictions on the labor of women and 
 children, and the development of economic foresight and social 
 ambition, there is no guarantee that the birth rate in cities will 
 continue to remain higher than that in country districts.- 
 
 ^A. F. Weber, The Growth of Cities in the Nineteenth Century, p. 341. 
 
 2 Ibid. p. 338, quoting A. T. Hadley, Economics, pp. 48-49: "High 
 comfort and low birth-rate are commonly associated, because comfort is 
 made to depend upon prudence. Let the comfort be made independent of 
 prudence, as in the case of the pauper or criminal, and the birth-rate tends
 
 354 STATE AND MUNICIPAL GOVERNMENT 
 
 (6) The 
 death rate 
 in cities 
 
 [Attempts 
 to reduce 
 the death 
 rate] 
 
 The death rate in cities is everywhere higher than in the 
 country. Formerly the death rate not only exceeded the birth 
 rate, but on account of plague and pestilence it nearly deci- 
 mated certain cities. Not until the nineteenth century could it 
 be said safely that the average death rate was below the average 
 birth rate. Before the nineteenth century the growth of cities 
 had been almost entirely from migration, a large part of which 
 went to replace the loss by death. As might be expected, the 
 death rate in cities is larger for children under one year of age, 
 but the statistical tables published by the Census Bureau show 
 that the death rate for all ages is greater in the cities than in 
 the rural districts, and with the exception of the ages between 
 five and fifteen is greater in cities of more than 100,000 popu- 
 lation.^ It thus may be affirmed that the death rate at all ages 
 increases with the density of the population. The causes for 
 this high death rate are not far to seek. For children under 
 five years old the crowded conditions of the city, the lack of 
 proper food and of opportunity for play, and the prevalence of 
 disease all account, in a large measure, for the abnormally large 
 number of deaths. For adults the dangerous occupations which 
 the city-dwellers engage in and the general wear and tear of 
 urban life tend to increase the death rate. It is true that all cities 
 have taken heroic measures to preserve the health of their pop- 
 ulations and that the death rate in all cities has steadily de- 
 clined — in New York from 25.8 per thousand in 1886 to 12.9 
 per thousand in 1920, and in other cities to a less degree.- 
 
 Wherever large aggregations of population are gathered the 
 problem of preserving their health increases almost in geomet- 
 rical proportion with the size of the population. The obvious 
 
 to increase rather than diminish. ... It is not that social ambition in 
 itself constitutes a greater preventive check to population than the need 
 of subsistence; but that the need of subsistence is felt by all men alike, 
 emotional as well as intellectual, while social ambition stamps the man 
 or the race that possesses it as having reached the level of intellectual 
 morality. Ethical selection can therefore operate on the latter class as 
 it does not on the former. The intellectual man has possibilities of self- 
 restraint which the cniDlional man has not." 
 
 '.A. F". Weber, The Growth of Cities in the Nineteenth Century, p. 346. 
 
 2 See W. B. Munro, The Government of American Cities, p. 3Q, for a 
 table compiled from the reports of the United States Census Bureau.
 
 CHAfLACTERISTICS OF AMERICAN CITIES 355 
 
 dangers which threaten such concentration of population as 
 the cities show are to be found in the inadequate or impure 
 water supply, in the improper disposition of the w^astes, and 
 in the lack of general cleanliness of the community. It is here 
 that the cities put their first efforts, and it is from the result 
 of a pure water supply, a scientific disposition of the city's 
 waste, and clean streets that most of the immediate results in 
 the decline of the death rate are to be noticed. Even more 
 care is necessary than this with regard to the housing of 
 the population, the provision for recreation grounds, the in- 
 spection of food and of the milk supply in particular, and its 
 complement, the ice supply. IMoreover, the laws regulating 
 dangerous occupations and the employment of women and 
 children in industry are aimed at the same result ; that is, to 
 reduce the death rate and to improve the health of the com- 
 munity. The success of these movements depends upon the 
 efficiency of the municipal government. As Professor Munro 
 has well said, the death rate is the barometer of administrative 
 efficiency.^ 
 
 It was formerly held that the city-dweller was less healthy (7) Health 
 than the countryman. The crowded conditions under which 
 he lived, the monotony of his task in the industrial life due 
 to specialization, and the lack of outdoor exercise were believed 
 to produce a weaker type than that which developed in the 
 country. In the nineteenth century, however, the adoption of 
 compulsory military service has shown that in France, Ger- 
 many, and Italy the percentage of those rejected for the army 
 on account of physique was greater for the country districts 
 than for the towns. In the United States, however, the physi- 
 cal examinations of six million men under the Selective Service 
 Act showed that a higher percentage of city-dwellers were re- 
 jected on account of physical defects.- This somewhat reverses 
 
 iW. B. Munro, The Government of American Cities, p. 40. 
 
 2 Second Report of the Provost Marshal General on the Operations of 
 the Selective Service System (1919), p. 159, quoted by W. B. Munro, 
 The Government of American Cities (3d ed.), pp. 43-44. But compare 
 Goodnow and Bates, Municipal Government, p. 28, "Of the total num- 
 ber rejected as unfit, 63 per cent were from the country and 37 per cent 
 from the cities."
 
 356 STATE AXD MUNICIPAL GOVERNMENT 
 
 (8) Intel- 
 lectual 
 standard 
 
 the former theories that the improved sanitary conditions, food 
 quality, and standard of living produced a higher type of 
 physical development in the cities than in the country. 
 
 It is impossible to estimate the intellectual standards of any 
 two parts of the country. About the only criterion is the test 
 of literacy. The census of 1910 showed that 4.9 per cent of 
 the total white population of the United States was illiterate. 
 In cities of more than 25,000, however, the percentage of 
 illiteracy was only 4.3 per cent. It should be remembered, 
 moreover, that to the cities in general comes the great mass 
 of illiterate immigrants. Nevertheless, not only is the percent- 
 age of illiteracy smaller in cities than in the country at large 
 but this percentage is growing less and probably will continue 
 to decline at an increasing rate. The Immigration Act of 19 13 
 excluded all immigrants unable to read and write. In the 
 country districts, and especially in the cities, the school facili- 
 ties are being improved and compulsory education is being ex- 
 tended by increasing both the years of school attendance and 
 the length of the school year. In addition the city furnishes 
 greater opportunities for advanced education by means of 
 night schools, settlement classes, and vocational schools. More- 
 over, city life greatly handicaps the illiterate in economic 
 advancement, which is quite universally conditioned by the 
 ability at least to read and write. 
 
 The ability to read and write is, on the whole, a poor 
 standard^for Standard by which to judge the intellectual ability of a com- 
 
 inteiii- munity. The education of the city-dweller has been well 
 
 gence] -^ •' 
 
 described by J. A. Hobson in the following words : 
 
 [Literacy 
 
 That town life, as distinguished from town work, is educative of 
 certain intellectual and moral qualities, is evident. . . . While there 
 is reason to believe that town work is on the average less educative 
 than country work, town life more than turns the scale. ... If, 
 however, we examine a little deeper the character of town education 
 and intelligence, certain tolerably definite limitations show them- 
 selves. School instruction, slightly more advanced than in the coun- 
 try, is commonly utilized to sharpen industrial competition and to 
 feed that sensational interest in sport and crime which absorbs the 
 attention of the masses in their non-working hours ; it seldom forms
 
 CHAIL^CTERISTICS OF AMERICAN CITIES 357 
 
 the foundation of an intellectual life in which knowledge and taste 
 are reckoned in themselves desirable. . . . Scattered and unrelated 
 fragments of half-baked information form a stock of "knowledge" 
 with which the townsman's glib tongue enables him to present a showy 
 intellectual shop-front. Business smartness pays better in the town, 
 and the low intellectual qualities which are contained in it are edu- 
 cated by town life. The knowledge of human nature thus evoked is 
 in no sense science ; it is a mere rule-of-thumb affair, a thin mechani- 
 cal empiricism. The capable business man who is said to understand 
 the "world" and his fellow-men, has commonly no knowledge of 
 human nature in the larger sense, but merely knows from observation 
 how the average man of a certain Hmited class is hkely to act within 
 a narrow prescribed sphere of self-seeking. Town hfe, then, strongly 
 favors the education of certain shallow forms of intelligence.^ 
 
 Although the average income of the city-dweller is larger (9)0wner- 
 than the countryman's, he seldom owns his home. According property 
 to the Census of 1910, although three quarters of the entire 
 wealth of the whole country was to be found in cities, a small 
 part of the city-dwellers actually own their houses — in Greater 
 New York only 11.7 per cent, and in the borough of Man- 
 hattan only 2.9 per cent. The effect of this is to make the 
 city-dweller less conservative than he who lives in the country. 
 Since the greater weight of taxation falls upon real estate, the 
 majority of the voters in the city feel only indirectly the 
 increase of taxation. They are thus much more ready to 
 sanction increased expenditures and to demand improved and 
 better living conditions than are those who live in the country. 
 
 About the only index to the moral standards of a community do) Moral 
 is the amount of crime committed in it. In this respect the of the citV 
 city has a worse record than the country. The number of 
 arrests for crime increases generally in proportion to the 
 density of the population, and the amount of crime in the 
 .^reat cities, particularly the seaports, is appalling. Several 
 mitigating circumstances, however, may be mentioned. In the 
 first place, since the majority of the population is in the cities 
 it would be natural to find a greater amount of crime, but the 
 
 lA. F. Weber, The Growth of Cities in the Nineteenth Century, p. 3qq, 
 quoting J. A. Hobson, The Evolution of Modern Capitalism, pp. 338-339.
 
 358 STATE AND MUNICIPAL GOVERNMENT 
 
 percentage of crime is more than the larger proportion of the 
 population justifies. When the crimes are analyzed, however, 
 it is found that the crimes against the person — that is, assaults 
 and violence — are not much above the proportion according 
 to population. But crimes against property are far above their 
 true proportion, especially in the case of the crime of larceny. 
 This, in part, may be explained by the larger opportunities: 
 by far the greater part of the country's wealth in personal 
 property is to be found in the cities. It should be remembered, 
 moreover, that criminals naturally gravitate to the city, for the 
 cities give them a greater opportunity to follow a career of 
 crime. Finally, the population of the cities is subject to more 
 violent alterations of condition : employment is less continuous 
 in the city than in the country; wages in the city may be 
 higher, but they are less certain ; and men may be thrown out 
 of employment into idleness, which enhances the temptation 
 for crime. It is certainly true that there are more crimes 
 committed in the city in proportion to its population than 
 in the country, but it is doubtful whether the proportion of 
 criminals is greater.^ 
 (ii) Hu- The cities, on the other hand, are the centers of great chari- 
 
 manitarian ^. ,, .. -^ r • t - t • 
 
 movements tics and humanitarian movements. JNiore is done in the city 
 to relieve poverty and suffering and to improve the social and 
 living conditions of all classes than is possible in any country 
 district. The concentration of wealth, the leisure which this 
 wealth gives to certain classes, and, perhaps, the acute con- 
 sciousness of the evils to be remedied, brought about by the 
 density of the population, compel the city-dweller to a higher 
 sense of his obligations to the community than is found in the 
 country. The cities, to some observers at least, are cesspools 
 of crime and vice ; to others they are the source of many of the 
 most charitable and humanizing movements in the whole coun- 
 try. Both observers are in part correct: the cities present 
 most violent contrasts; in them extremes meet. From the 
 resolution of the contending forces in the cities, however, has 
 come much of the progress which has made the United States 
 so remarkable. 
 
 'A. V. VVcIkt, The Growth of Cities in the Nineteenth Century, p. 408. 
 
 in cities
 
 CHAPTER XX 
 
 THE DEVELOPMENT OF MUNICIPAL GOVERNMENT 
 IN THE UNITED STATES 
 
 Chartered communities have existed in the United States 
 since 1641. There are thus two hundred and sixty years of 
 municipal experience through which it is possible to trace the 
 development of municipal institutions. Beginning in colonial 
 times with a few boroughs of the English type, American 
 municipalities have increased in number until the United 
 States contains more cities than any other country in the world 
 and has led the way in adopting new features for governing its 
 cities. These experiments have not always been happy ; in- 
 deed, Lord Bryce described the government of American cities 
 as the "one conspicuous failure" in our system. It is thus 
 advisable to trace the development of city government in the 
 United States through these two centuries and a half in 
 order to point out the errors of previous generations and to 
 understand the problems which face the present. 
 
 The Colonial Period^ 
 
 Before the American Revolution there were about twenty coioniai 
 chartered boroughs in the English colonies of North America.- ''°'°"2''® 
 The earliest community to receive a charter was Agamenticus, 
 Maine, chartered by Sir Fernando Gorges in 1641. In 1647 
 Gorges granted a charter to Kittery, Maine, and in 1705 the 
 village of Bath, North Carolina, received a charter. Aside from 
 these little hamlets all the chartered communities in the colonies 
 were to be found in New York, New Jersey, Pennsylvania, 
 
 ^One of the best brief treatments of this subject is given by Pro- 
 fessor J. A. Fairlie, Essays in Municipal Administration, chap. iv. 
 
 -For a list of colonial boroughs see J. A. Fairlie, Essays in Municipal 
 Administration. 
 
 359
 
 36o STATE AND MUNICIPAL GOVERNMENT 
 
 Maryland, and Virginia. The last place to be chartered before 
 the American Revolution was Trenton, New Jersey. Although 
 the advantages of incorporation were recognized, the movement 
 had gained little headway during colonial times. In New Eng- 
 land the system of town government, which from 1694 allowed 
 the towns the privileges of corporations, gave greater freedom 
 than any formally granted charter. After the middle of the 
 eighteenth century the opposition of the colonists was probably 
 a deterrent to the provincial governors in granting charters. 
 Whatever the practice of the nineteenth and twentieth centuries 
 has developed in municipal government, the foundation is to 
 be found in these colonial charters, 
 organiza- The colonial charters were granted to the boroughs not by 
 thTw^oniai the assembly of the colony, but by the governor. These char- 
 charters j.gj.g created corporations and gave the boroughs the right of 
 perpetual succession, the right to receive, hold, and dispose of 
 lands and chattels, the right to sue and to be sued in the courts 
 of the colony, and the right to have a common seal. The 
 official title of the corporations was generally "the mayor, 
 
 aldermen and commonalty of ." 
 
 [The In the great majority of the boroughs the mayor was regu- 
 
 ^^^'^'^ larly appointed by the governor of the province. His term 
 was fixed at one year, but reappointments were frequent. He 
 presided at the meeting of the aldermen and common council, 
 but had no power of veto. He was charged with the execution 
 of the laws, and in some boroughs was given control over grant- 
 ing certain licenses. In general he had no power of appoint- 
 ment, but not infrequently he himself exercised the functions 
 of minor offices. 
 [The In the colonial boroughs the number of aldermen was small 
 
 — never over eight, and more generally live or six. The alder- 
 men were chosen in various ways. Not a few of the boroughs 
 were "close corporations";^ that is, having the power to elect 
 their successors. In such corporations the aldermen were 
 chosen by the council; in other boroughs they were elected 
 popularly by the freemen — generally at large, although in 
 Albany and New York they were chosen by districts. 
 > Annapolis, New York, and Philadelphia. 
 
 aldermen]
 
 MUNICIPAL DEVELOPMENT 361 
 
 The councilmen were commonly more numerous than the [The 
 aldermen and, in close corporations, were chosen by the alder- *^°"°" ®°-l 
 men, mayor, and recorder. Elsewhere they were elected by 
 popular vote. The aldermen and councilmen formed one body, 
 which, in order to transact business, must have the mayor and 
 a certain number of aldermen present. 
 
 The recorder was supposed to be the legal adviser of the [The 
 government, but there was no requirement, except in Norfolk, '^^^°^ "■' 
 that he should be learned in law. In close corporations he 
 was chosen by the corporations ; elsewhere he was appointed 
 by the governor of the colony. There were other officers also 
 — a town clerk in every borough ; a treasurer in most of them, 
 although an officer is rarely mentioned in the charters; and in 
 New York and Albany, in boroughs which were conterminous 
 with counties, there was a sheriff. In the charters for some of 
 the boroughs fines were prescribed for failure or refusal to 
 accept office, and in Philadelphia the fines were often paid 
 in preference to service. 
 
 The most marked point of difference between the colonial [The 
 boroughs and the modern city was the presence of freemen. "^^^"^"-I 
 As a rule, the corporation was given the power to admit free- 
 men to the corporation. Women, as well as men, were eligible, 
 and small fees were charged for this privilege. The privileges 
 of the freedom of the corporation were twofold. In most 
 boroughs the freemen had the monopoly in certain trades, 
 which, in Albany, gave them a great advantage in the Indian 
 trade; all freemen, moreover, were members of the electorate. 
 In the close corporations this franchise was of little impor- 
 tance, as the vacancies in the governing board were filled by 
 the remaining members. In other boroughs the franchise was 
 extended to all freemen and as a rule to freeholders or those 
 who could qualify by the possession of a small amount of 
 personal property. 
 
 The colonial boroughs were judicial rather than administra- Functions 
 tive organizations, the result partly of English precedent and colonial 
 partly because few of the modern municipal functions were boroughs 
 performed. The mayor, recorder, and aldermen constituted a 
 court which had jurisdiction over petty cases. These same
 
 362 STATE AND MUNICIPAL GOVERNMENT 
 
 officers were also members of the county courts. The legisla- 
 tive functions of the councils were small ; they might make 
 ordinances "for the good rule and government of the body cor- 
 porate," but in some instances there was a requirement that 
 these must be submitted to the provincial governor for ap- 
 proval. In administration the common council took charge of 
 the markets ; they had power to keep streets free from rubbish 
 and obstructions, and in a few cases streets were laid out by 
 their authority. The water-supply was derived during colonial 
 times entirely from pumps and wells, although in 1774 the 
 council at Albany undertook a primitive reservoir system. The 
 preservation of peace and order by means of the patrol of 
 the streets was hardly begun during the colonial period, yet 
 New York and Philadelphia had established night watchmen 
 before the middle of the eighteenth century. Street lighting did 
 not commence until 1761 in New York, and then was consid- 
 ered a part of the police function. There were no public schools 
 , in any of the boroughs, no parks, no libraries, no administration 
 of charitable relief. 
 Finances With such limited municipal functions it is not surprising 
 
 that the financial operations were also limited. The revenue 
 of the borough was derived largely from fines, licenses, and 
 fees for the markets, ferries, and docks. The early charters 
 gave no authority to levy direct taxes, but the colonial legis- 
 latures soon extended the power of taxation, and by the middle 
 of the eighteenth century the direct tax became a definite and 
 regular part of the municipal revenue. 
 
 Municipal Development from 1775 to 1820 
 
 Character- The establishment of the independence of the United States 
 venod '^ brought about certain significant changes in municipal govern- 
 ment.^ The most important change was the substitution of 
 the state legislature for the governor in granting city charters. 
 
 ' The best brief treatments of municipal development are given by 
 J. A. Fairlie, Municipal .'\dministration, chap, v, and W. B. Munro, The 
 Government of American Cities (t,(\ cd.), chap. i. ,'\ more extended treat- 
 ment is piven by Eugene McQuillin, Treatise on the Law of Municipal 
 Corporations, Vol. I, pp. 1-159.
 
 MUNICIPAL DEVELOPMENT 363 
 
 In those cities which were incorporated immediately after the 
 Revolution, charters were issued not by the governor of the 
 state but by the state legislature. This established a precedent 
 which has been followed ever since and which has had far- 
 reaching results. A charter granted by the state legislature is 
 like any other statute. It is thus subject to legislative amend- 
 ment or revocation. This change sets the precedent for the 
 mischievous interference in municipal affairs which charac- 
 terizes the middle period of American municipal government. 
 Another change was found in the disappearance of the close 
 corporation. None of the newly chartered cities were allowed to 
 establish close corporations, and the state legislatures amended 
 such charters to provide for a popularly elected council. This 
 is an example of the supremacy which the state legislatures 
 exercised over the municipalities. Not even the existing char- 
 ters which had been granted by the royal governors were free 
 from legislative interference. 
 
 The organization and powers granted by the state legisla- Municipal 
 tures in the early charters do not greatly differ from those of t[on under 
 the colonial charters. By 1796, however, the influence of the *?|/^^* 
 national Constitution was clearly felt, and the forms of national charters 
 government were bodily transferred to the cities. The Balti- 
 more charter of 1797 thus provided for a bicameral city legis- 
 lature. The council was composed of two members chosen 
 annually from each of the eight wards, while the other house 
 was chosen by an electoral college, which also selected the 
 mayor. In addition, the mayor was given, like the president 
 of the United States, the veto of ordinances passed by the 
 council. But this was a novelty and was not widely adopted 
 until much later. Perhaps more far-reaching than any formal 
 frame of government was the general feeling that checks and 
 balances should be set up to insure the separation of the ex- 
 ecutive (that is, the mayor) from the legislative department 
 (that is, the common council). As Professor Munro has well 
 pointed out,^ there was no reason for such a separation of 
 powers in municipal government. It was necessary only in the 
 ultimate power in the state. In such subordinate institutions as 
 ^The Government of American Cities, pp. 7-9.
 
 364 STATE AND MUNICIPAL GOVERNMENT 
 
 Municipal 
 functions 
 
 Growth of 
 cities 
 
 Municipal 
 politics 
 
 municipalities it had no place. Yet '' the wisdom of the framers " 
 is still invoked to perpetuate the bicameral system and the 
 separation of the legislative and administrative powers. 
 
 Until 1820 the functions undertaken by the municipalities 
 increased in degree rather than in number. Few new duties 
 were taken on, and only the somewhat slow increase in popula- 
 tion compelled the cities to extend their functions quantita- 
 tively. Thus New York City, with a population of 100,000 
 in 1810, expended only about Sioo,ooo. 
 
 In 1820 there were only thirteen towns in the United States 
 with more than 8000 inhabitants and only six cities with more 
 than 20,000 population. The total urban population was less 
 than 500,000, or barely 5 per cent of the entire population 
 of the country.^ 
 
 In the first decades after 1800 municipal politics became 
 subordinated to national and state politics. Two reasons may 
 account for this: in the first place, the functions of the city 
 were not important enough to cause the formation of local 
 parties, and, secondly, the interference of the state in municipal 
 affairs gave an opportunity to reward success in state political 
 campaigns by the "spoils" in the cities. 
 
 Character- 
 istics 
 
 Municipal 
 organiza- 
 tion 
 
 Municipal Development from 1820 to 1850 
 
 This period is characterized, first, by the changed method 
 of choosing the mayors. The mayors in some cities had always 
 been chosen by the common council, but in 182 1 the constitu- 
 tion of New York established this as a general rule for the 
 state. The period is also characterized by a further extension 
 of the principles of democracy. In the charters issued to 
 Boston and St. Louis in 1822 and to Detroit in 1824 the mayors 
 were chosen by popular vote. Finally, during this period most 
 cities did away with the property requirements and established 
 manhood suffrage. 
 
 Although in an increasing number of cities the mayors were 
 popularly elected, they had received very little enlargement 
 of their powers. 'Ihe power of vetoing ordinances was not 
 
 ij. A. Fairlic, Municipal Administration, j). 80.
 
 MUNICIPAL DEVELOPMENT 365 
 
 extended, nor was the appointing power of the mayor enlarged. 
 Choice by election did give the mayor a more independent 
 position. It prepared the way, however, for the enlargement 
 of his powers which came when the council had demonstrated 
 its inefficiency. 
 
 As a general thing single chambers still were the rule in the The 
 municipal councils, although the charter of Boston provided ^"ncTi^^ 
 for a bicameral council. In the New York charter of 1830, 
 however, the bicameral system was adopted, "for the same 
 reason which has dictated a similar division of power into two 
 branches, each checking and controlling the other, in our 
 general government."^ This charter also provided for the 
 establishment of separate departments by the council, but this 
 provision proved too vague, and the municipal functions con- 
 tinued to be performed by committees of the council. This 
 charter, moreover, gave the mayor the right to veto the 
 ordinances passed by the council. 
 
 With the increase of population in cities municipal functions Municipal 
 were extended in both number and character. The question of 
 water supply became pressing, and New York City constructed 
 the Croton aqueduct. As has been shown, most cities had estab- 
 lished in the previous period a night watch, and several others 
 now set up during these years small bodies of rather ill- 
 organized and inefficient day police. Fire protection was be- 
 coming general and was performed by volunteer companies, 
 although the municipalities in some instances furnished the 
 apparatus. In a few cases the municipal councils appointed 
 the school boards, but in general these were considered separate 
 from the municipal government. 
 
 The extension of municipal functions necessitated increasing Finance 
 attention to finance. Most of the city charters gave a grant 
 of general taxing power to the cities instead of relying upon 
 the system of special authorization for special purposes. The 
 power was subject to definite limitations. First, cities were 
 limited to a certain percentage of the assessed valuation of 
 the property in the city. For extraordinary purposes — to meet 
 
 ij. A. Fairlie, Municipal Administration, p. 83, quoting Address of 
 the Convention of 1829.
 
 366 STATE AND MUNICIPAL GOVERNMENT 
 
 The spoils 
 system 
 
 Character- 
 istics 
 
 Municipal 
 functions 
 
 expenses beyond the amount which could be so obtained — 
 recourse to the state legislature was necessary. Moreover, 
 there was always in every city charter a limitation upon the 
 objects of taxation, and no municipality could raise money for 
 purposes other than that specified by the charter. This seri- 
 ously hampered the development of municipal functions and 
 required frequent appeals to the state legislature, thus per- 
 petuating the system of state interference in municipal affairs. 
 In so doing, it put the city at the mercy of the legislature and 
 reduced the discretion of the city authorities. 
 
 During this period the spoils system gained a firm hold in 
 municipal affairs. In most of the cities appointments rested 
 with the council, which was generally chosen from wards. The 
 names and organization of the national parties were transferred 
 to municipal contests, and the council members soon regarded 
 these appointments as legitimate patronage to be used to 
 further their political fortunes. In addition, the system of 
 rotation in office was extended to municipal officers. Thus, at 
 the very beginning of the extension of municipal functions 
 an inefficient method of the selection of officers was fastened 
 upon the cities. 
 
 Municipal Development from 1850 to 1870 
 
 During this period there was a steady growth of the urban 
 population. This increase began to force the undertaking of 
 new municipal functions and the very rapid development of 
 those functions which had previously been performed by the 
 cities. The period also shows a constantly increasing tendency 
 on the part of the state legislatures to interfere with municipal 
 affairs and to divide the city government into independent 
 departments. Along with this came a decline in the impor- 
 tance and character of the municipal councils. Finally, this 
 period shows the spoils system, if not at its height, flourishing 
 almost unchecked. 
 
 As might be expected, the concentration of population in 
 New York City, which, in 1850, had 500,000 inhabitants, 
 compelled the city to improve its means for protection. Con- 
 sequently, in 1845 ^cw York established the first disciplined
 
 MUNICIPAL DEVELOPMENT 367 
 
 police force and also a paid fire department. Municipal water- 
 works were established in Boston, Chicago, and Baltimore. 
 Other cities were soon obliged to follow New York in the 
 establishment and maintenance of a police force. The ordinary 
 functions of city government which had been more or less 
 irregularly attempted since colonial times — that is, the care 
 of the streets and the relief of the poor — were rapidly ex- 
 tended, and most cities made a beginning of a school system. 
 
 Although the forms of municipal organization remained al- changes in 
 
 ... . , . , , ,. J organiza- 
 
 most unchanged, they were overlaid with special bodies and tion : 
 instruments created by the legislature. The council, while 
 nominally in control of the city's policy, as a matter of fact 
 was losing power. This was accomplished in various ways. 
 
 It has been noted that many cities were forced to appeal to (i) special 
 the legislature for additional powers in order to perform the 
 functions which were necessary and, particularly, to finance 
 these functions. It has, moreover, been seen that the state 
 legislatures from the very first regarded the cities as merely 
 subordinate areas of administration and the city charters as 
 mere statutes subject to amendment at any time. These legis- 
 lative amendments might be either formal amendments of the 
 city charter or special statutes passed for some particular pur- 
 pose or for some particular city. During this period the num- 
 ber of special statutes increased enormously and to such an 
 extent that the city councils were in many instances reduced 
 almost to impotency. The dangers of this habit were recognized, 
 and several states^ by constitutional amendment forbade the 
 practice. None of these states, however, contained any large 
 cities, and in none of them was the problem acute. 
 
 Many of the new functions which were given to cities by (2) Growth 
 special statutes or charter amendments were conferred not departments 
 upon the city council but upon newly created departments, 
 independent of the municipal council. In previous periods it 
 has been seen that the schools and poor relief were more or 
 less independent of the action of the council. Now, however, 
 almost every new function conferred upon a city was vested 
 in an independent department. Thus, in 1849 the new charter 
 ^Arkansas, Florida, Iowa, Kansas, Nebraska, and Ohio.
 
 368 STATE AND MUNICIPAL GOVERNMENT 
 
 f3) Legis- 
 lative com- 
 mission 
 
 Reasons 
 for these 
 changes in 
 organiza- 
 tion 
 
 for New York City created twelve executive departments, 
 whose heads were chosen by popular vote. Similar changes 
 were made in Cleveland, and in 1851 the water board of 
 Chicago was established with an independent power to borrow 
 money. Another example of the declining position of the council 
 is seen in the limited power of veto which was conferred upon 
 the mayor. 
 
 During this period, moreover, the powers of the council were 
 limited still further through the establishment of special legis- 
 lative commissions or boards, which were appointed not by 
 municipal but by state authority. For example, in 1857 a 
 state park commission was established for New York City and 
 a state metropolitan police board for New York and Brooklyn ; 
 in i860 a state police board was set up for Baltimore and in 
 1861 for Chicago; in 1865, state commissions were established 
 for New York City for the fire and health departments and 
 for the licensing of saloons; and in 1870 construction of the 
 new city hall in Philadelphia was intrusted to a state commis- 
 sion. These commissions were all-powerful within the fields 
 granted them by the statutes, and in New York they went so 
 far as to control five sixths of the municipal expenditures.^ 
 
 Various reasons are assigned for this condition of affairs. 
 The transfer from council committees to popularly elected de- 
 partments was perhaps the result of the wave of democracy, 
 which reached its height in 1850. But this was not uncon- 
 nected with the inefficiency of the municipal council. As has 
 been shown, municipal politics were party politics, and the 
 men chosen to the city councils were not of such a caliber as 
 would lead thoughtful men to intrust them with the new func- 
 tions which the city was obliged to attempt. The councils had 
 shown themselves particularly inefficient and careless of the 
 city's best interests in the granting of franchises and the mak- 
 ing of contracts, and in the functions which still remained in 
 their hands they proved inefficient and were constantly subject 
 to criticism. It cannot be said, however, that the legislative 
 commissions which were appointed to remedy the maladminis- 
 tration and mismanagement of the councils were a very great 
 ^J. A. Fairlic, Munici{)al Administration, p. 90.
 
 MUNICIPAL DEVELOPMENT 369 
 
 improvement. Since these were under the control of the state 
 government they were subject to the violent alterations and 
 disorganizations consequent upon any charge in the political 
 complexion of that government. 
 
 The spoils system was pretty thoroughly fastened upon the The spoils 
 cities before the beginning of this period. With the enlarge- ^^^ ^" 
 ment of the municipal functions came an opportunity for the 
 extension of the spoils system. The patronage of a large city 
 was a prize which both parties were anxious to obtain. If this 
 were left to the disposition of the local authorities the success- 
 ful party in the state campaign would be defrauded of what 
 it considered its legitimate perquisite. This, perhaps, is the 
 real explanation of the growth of commissions appointed by 
 the state authorities and the state control of the administrative 
 functions of the city. It resulted to an increasing degree in 
 the subordination of city issues to the necessities of the cam- 
 paigns of the national parties, and it prevented the develop- 
 ment of any purely municipal parties. 
 
 Municipal Development from 1870 to 1900 
 
 The decades from 1870 to 1900 are characterized by the character- 
 continued growth of cities and the consequent extension of '^ '"^^ 
 municipal functions. Of even more importance, however, are 
 the first attempts at the reorganization of the framework of 
 municipal governments. The first years of the period are dis- 
 tinguished by notorious examples of misgovernment in the 
 largest city in the United States, New York, and other cities 
 in turn suffered to a less degree, but these evils concentrated 
 public attention on them and forced reform. 
 
 In 1870 there were 226 cities, with a population of more Growth of 
 
 cities 
 
 than 8000 ; in 1880 there were 286 such cities, which contained 
 22.5 per cent of the entire population of the United States; 
 and there were nearly a hundred cities with a population of 
 more than 20,000. Ten years later the number of cities with 
 a population of more than 8000 had risen to 448, and there 
 were 28 cities with a population of more than 100,000, 15 of 
 200,000 or more, and 6 with a population of more than 
 500,000. These vast populations were recruited not simply
 
 370 STATE AND MUNICIPAL GOVERNMENT 
 
 Limitations 
 on state 
 interference 
 
 Reorganiza 
 tion 
 
 [Appoint 
 ments] 
 
 from natural increase and by migration from the country dis- 
 tricts but also from a huge alien influx. Hence the problems 
 of these decades are complicated by the presence of large 
 numbers of aliens who, through the lax enforcement of the 
 naturalization laws too often become subject to the political 
 control of corrupt leaders. 
 
 In this period an increasing number of states adopted con- 
 stitutions prohibiting the passage of special statutes for cities/ 
 and two states, Missouri and California, passed amendments 
 allowing the cities to frame their own charters. 
 
 These decades saw many new charters granted to cities and 
 many amendments to the existing charters. The general char- 
 acteristic of these amendments was toward strengthening the 
 authority of the mayor, thus still further weakening the powers 
 of the council. In the majority of the charters the appoint- 
 ment of many of the municipal officers was put into the hands 
 [Removals] of the mayor. In some cities the mayor was given the power 
 to remove on definite charges the officers whom he appointed, 
 or, as in New York, to do this with the approval of the gover- 
 nor. This appointing power, however, was not generally an 
 absolute one. After the analogy of the Federal Constitution, 
 the city charters usually allowed the mayor to nominate and 
 the city council to confirm his nominations. This opened the 
 door to trading and logrolling, but on the whole it was an 
 advance over the system either of popular election or of state- 
 appointed officers. In the last decade of this period an increas- 
 ing number of cities vested the absolute appointing power in 
 the mayor. Practically all the city charters during these years 
 give the mayor the power of veto of measures and, in some 
 cases, of separate items in finance bills. 
 
 Municipal functions were rapidly extended during this period. 
 The older cities required a higher standard of efficiency and 
 the smaller cities demanded an expansion of their functions, 
 especially with regard to the maintenance of streets, protec- 
 tion against fire, the reorganization of the police forces, and 
 public education. 
 
 1 California, Illinois, Louisiana, Missouri, New Jersey, Pennsylvania, 
 Texas, and West Virginia. 
 
 [Veto] 
 
 Municipal 
 functions
 
 MUNICIPAL DEVELOPMENT 371 
 
 With the extension of these municipal functions and their Finance 
 appHcation to large bodies of population concentrated in a 
 small area, the expense of municipal administration rapidly 
 increased. By 1900 the annual expenditure of New York City 
 was more than $100,000,000, and the expense per capita was 
 swiftly rising with the growth of the city. The New York 
 City charter of 1873 introduced a novelty in dealing with 
 this problem. The council had proved extravagant and in- 
 efficient ; a new board was created known as the board of 
 estimate and apportionment, which consisted of the mayor, 
 comptroller, president of the board of aldermen, and president 
 of the department of taxes and assessors. This board was given 
 the duty of preparing the budget and became the central 
 authority in municipal finance, thus exerting an effective con- 
 trol over the entire system of municipal government. During 
 this period other cities adopted boards of control, budget 
 boards, or some institution to perform similar functions. 
 
 The evils of the spoils system had been clearly seen in the The spoils 
 previous period, and in these later years attempts were made ^'^^^^'^ 
 to remedy them. State after state passed civil-service laws and 
 established commissions for the supervision of municipal ap- 
 pointments. The municipal service was classified and appoint- 
 ment was made only as a result of competitive examination, 
 while officers could be removed only for cause and in many 
 cases only after a hearing. Although the civil-service movement 
 had its origin during this period, it was not extended to all the 
 municipal officers nor was it found in the majority of the states. 
 
 Municipal Development from 1900 to 1920 
 
 The decades from 1900 to 1920 are noteworthy because of character- 
 the radical changes in the framework of city government and 
 because of an awakened and lively interest in municipal affairs. 
 This interest, it is true, was manifested during the last decade 
 of the nineteenth century, but it has become increasingly 
 effective during the last twenty years. 
 
 From 1900 to 1920 the urban population has increased from Growth of 
 30,000,000 to 54,000,000 — a greater increase than in any of 
 the periods which have been examined. Moreover, in 1920,
 
 372 DEVELOPMENT OF MUNICIPAL GOVERNMENT 
 
 as has been seen, more than half of the entire population of the 
 United States lived in cities. Municipal administration is thus 
 a problem of prime importance to the majority of the people 
 of the country. 
 Municipal The municipal reforms of the previous periods were aimed 
 at special abuses or tendencies, rather than at any radical 
 change in the form of government. These reforms have stead- 
 [Home rule] ily continued. The movement for home rule — that is, the 
 independence of the city from state control — has gathered 
 an increasing momentum. Some states give to the cities the 
 absolute power to frame their own charters ; others, like New 
 York and Massachusetts, provide certain types of charters 
 which cities may adopt. Almost everywhere there is a tend- 
 ency to restrict special legislation and state interference in 
 municipal government. Nevertheless, since the state is coming 
 to realize that its welfare is dependent upon that of the cities, 
 there has been an extension not of state interference with 
 municipal government but of the functions of state administra- 
 tion. With this consideration in mind, the movement for home 
 rule is not so important as is sometimes supposed. 
 Reorganiza- In 1901 the Commission system of government was estab- 
 government lished for Galveston, Texas, thus introducing a novelty in 
 municipal framework. The threatened bankruptcy of the city 
 led to a reorganization of the government not on political but 
 on business lines. It meant the breaking down of the tradi- 
 tional separation of the powers of legislation and administra- 
 [Govern- tion. The movement spread rapidly, particularly in the Middle 
 Mmmission] West, until today there are approximately three hundred and 
 fifty commission-governed cities. The weakness of commission 
 government was soon made manifest, and about ten years later 
 the city-manager type was introduced, thereby concentrating 
 in one hand the administrative functions of the city. This 
 movement, as well, has made rapid headway, until there are 
 [The city about two hundred cities having city managers. In those 
 cities which retained the traditional forms of government in- 
 ••^suong creasing power has been given to the mayor. More and more 
 mayor"] frequently it is the case that his powers of appointment and 
 removal arc extended and made independent of the council;
 
 MUNICIPAL DEVELOPMENT 373 
 
 especially in finance the mayor's power has grown, and in some 
 states to the extent that the city council may not increase any 
 item in the mayor's budget. 
 
 As might be expected, municipal functions have developed Municipal 
 most rapidly during this period. The extraordinary growth of 
 the cities has necessitated the building of vast waterworks and 
 sewage-disposal systems, while in the largest cities the trans- 
 portation question is one of great importance. The old prob- 
 lems of street pavement, lighting, and protection against fire 
 have been met with always greater efficiency. A high standard 
 is demanded and a far higher standard attained than in any 
 previous period. Newer functions are constantly being under- 
 taken by the cities. As far back as 1850 the development of 
 parks was considered a legitimate city function. Today this 
 has expanded to an extraordinary degree, and playgrounds, 
 recreation centers, and municipal amusements are frequently 
 provided. Increasing attention is given to the development of 
 the city streets, and a whole new movement — that of city 
 planning — is attempting to add to the efficiency, convenience, 
 and safety of city life. The school systems are undertaking 
 new functions, not simply in the development of night schools 
 and kindergartens but in the maintenance of specialized schools, 
 which give training for specific objects. More and more care 
 is taken of the poor, the sick, the unfortunate, and the delin- 
 quent, until the appropriations for these objects rank second 
 in the expenses of all the cities of the United States. As a 
 result the appropriations for schools rank first among the ex- 
 penses of the cities of the United States, and the combined 
 amounts appropriated for sanitation, recreation, health con- 
 servation, and charities are almost double the sum spent upon 
 any other service except schools.^ 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), p. 78.
 
 CHAPTER XXI 
 THE RELATION OF THE CITY TO THE STATE^ 
 
 The city a The distinguishing mark of i\merican cities is the fact that 
 corporation fj^gy ^j-g municipal corporations. A municipal corporation has 
 been defined as ^'the body politic and corporate constituted by 
 the incorporation of the inhabitants of a city or town for 
 the purposes of local government thereof. . . . [It is] estab- 
 lished by law partly as an agency of the State to assist in the 
 civil government of the country, but chiefly to regulate and 
 administer the local or internal affairs of the city, town, or 
 district which is incorporated."- The city is a public cor- 
 poration (that is, one established for public purposes), and as 
 such it is called into being at the pleasure of the state, inde- 
 pendently of the will of the people of the locality affected. It 
 is true that in many instances the inhabitants of the district 
 are consulted, but this is not legally necessary.-' A municipal 
 corporation, like all other corporations, is the creation of the 
 legislature of the state. It has been shown that the boroughs 
 of colonial times received their charters from the governor, and 
 as such the charters were beyond the interference or control of 
 the colonial legislatures. But it has also been shown that the 
 
 ^The relation of city and state is well treated in brief form in 
 W. B. Munro's "Government of American Cities," chap, iii, and in 
 Goodnow and Bates's "Municipal Government," chaps, vi, vii. One of 
 the most comprehensive sources is found in Howard L. McBains "The 
 Law and the Practice of Municipal Home Rule." The fifth edition of 
 J. F. Dillon's "Commentaries on the Law of Municipal Corporations" 
 (S vols.) considers this subject exhaustively with references to the deci- 
 sions of the courts. A brief account of municipal home rule is found 
 in Bulletin No. ii of tlie Bulletins for the Massachusetts Constitutional 
 Convention, Vol. 1, |). 415. Mention should also be made of F. J. Good- 
 now's "Municipal Home Rule." Other references may be found in 
 W. B. Munro's " Bibliography of Municipal Government." 
 
 -J. F. Dillon, (!()nimin(arics on tlic Law of Municipal Corjiorations, 
 Vol. I, pp. 58-59. 'Ibid. p. 142. 
 
 374
 
 RELATION OF THE CITY TO THE STATE 375 
 
 state legislatures, since their establishment, have exercised com- 
 plete and undisputed control over the charters of all cities, 
 whether these had been granted by a colonial governor or by 
 the legislature itself. 
 
 The legal position of the city in the state thus depends Legal 
 primarily on the fact that it is a corporation. As such, it is the^city tn 
 the product of the state legislature and is entirely subordinate ^^ ^^*® 
 to it in all ways not forbidden by either the Federal Constitu- 
 tion or the state constitution. The position of the city is, 
 moreover, affected by the fact that it is a public corporation, 
 organized for the purpose of performing functions which are 
 of interest not only to the city itself but to the state at large. 
 The state, therefore, is compelled to regard the municipal cor- 
 poration in a very different light from the private corporations 
 created by the legislature. Thus, state control has an entirely 
 legitimate sphere in municipal activities. 
 
 The basis of municipal government is to be found in the city The city 
 charter. These charters generally contain four important ele- 
 ments: ^ (i)The first clause creates a corporation by declaring 
 the city to be a ''body corporate and politic" with a definite 
 name by which it ''shall have perpetual succession, may use 
 a common seal, sue and be sued, purchase, hold, and sell 
 property." (2) A definition of the territorial boundaries of 
 the city. (3) Provisions relating to the governing body of 
 the corporation. These provisions include not merely a de- 
 scription and enumeration of the powers of the mayor and 
 common council but also the qualifications for the voters of 
 the city. In some charters the provisions for holding elections 
 are prescribed.- (4) Perhaps the most important feature of 
 the charter is the minute and detailed enumeration of the 
 powers of the city council. This section contains the grants 
 of power and the limitations which condition practically all 
 the municipal activities. The most important of these grants 
 is the one which allows the city to create debts, usually, how- 
 ever, subject to very definite limitations. As will be seen, the 
 
 ^J. F. Dillon, Commentaries on the Law of Municipal Corporations, 
 Vol. I, pp. Q4-9S. 
 
 2 These features will be discussed at length in the succeeding chapters.
 
 the city 
 
 376 STATE AND MUNICIPAL GOVERNMENT 
 
 city charter gives to the city all the powers it has, and the 
 courts quite uniformly have construed city charters very 
 strictly. Therefore it is of vital importance to the city that 
 a proper and adequate grant of power be contained in the 
 charter. It is true that cities may secure additional powers 
 by general statutes applicable to all cities, or from specific 
 powers conferred upon them by special legislation. But such 
 legislative interference, while necessary and salutary in some 
 instances, has not always brought about good results. With- 
 out doubt the present tendency is toward endowing a city with 
 adequate power and freeing it from the capricious and some- 
 times partisan interference of the state legislature. 
 Powers of The city charter generally grants five classes of powers to 
 the city : ( i ) the powers incident to all corporations ; (2 ) power 
 to levy taxes; (3) power to appropriate and spend money; 
 (4) power to perform certain public services; and (5) power 
 to enact and enforce local police ordinances.^ Since the city 
 has no inherent authority the source for the exercise of all these 
 functions must be found in some definite grant, either in the 
 charter or in statutes. The burden is placed upon the city of 
 proving that it actually possesses the powers it wishes to exer- 
 cise. Where the power claimed is an ordinary one the courts 
 are fairly liberal in construing the clauses of the charter or 
 statutes, but they are very strict in the interpretation of grants 
 of power which are out of the usual or which may touch the 
 right to liberty or property of the citizens.-' Thus, although the 
 courts do not construe with too great narrowness the powers 
 granted to the city for establishing streets, parks, or schools, they 
 are extremely strict — frequently to the point of denial — with 
 regard to the privilege of engaging in some of the newer munic- 
 ipal activities. For example, it required a special act of the legis- 
 lature of Massachusetts amending the charter of Taunton to 
 allow that city to establish a dental clinic for school children.'' 
 
 ' This classification is follow ed by Goodnow and Hates, Municipal 
 Government, p. 93. A more extended treatment is found in J. F. Dillon, 
 Commentaries on the Law of Municipal Corporations, Vol. I, pp. 439-580. 
 
 ^See J. F. Dillon, Commentaries on the Law of Municipal Corpora- 
 tions, Vol. I, pp. 452-454, especially footnote 2, pp. 453-454. 
 
 •'Goodnow and Bates, Municipal Government, p. 95.
 
 RELATION OF THE CITY TO THE STATE 377 
 
 A more usual application of this tendency is found in the 
 refusal to cities of the right to engage in any sort of public- 
 utility enterprise not directly connected with the police power 
 of the municipality.^ 
 
 The powers granted by the charter are usually exercised by How the 
 
 citv GXGr— 
 
 city ordinances ; that is, by an act of the legislative body of cises these 
 the city. The charter generally prescribes the procedure for p°^"s 
 passing such an act, and in most cases the consent of the city 
 executive is necessary. To be valid a city ordinance must be 
 (i) within the powers granted by the charter and (2) adopted 
 according to the procedure prescribed by the charter. The 
 courts, moreover, have laid additional limitations upon this 
 ordinance power, (i) Ordinances must be reasonable. What 
 constitutes a reasonable or unreasonable ordinance is generally 
 determined by the court in a consideration of each special case, 
 but judicial decisions now furnish a great body of precedents.^ 
 (2) They must not make unjust discriminations. (3) They 
 must not unreasonably restrain trade. This does not mean that 
 trade or business may not be subject to regulation and limita- 
 tions, for all trades are liable to some restrictions. These 
 regulations, however, must be for an obvious and real public 
 purpose and must not, under guise of the exercise of the police 
 power, attempt certain limitations on business. 
 
 The liability of cities is determined by the twofold position Liabilities 
 
 , . , , . . _ . , , . ,. J . of cities 
 
 which the city occupies. It is a public corporation engaged in 
 performing public functions, and it is also engaged in certain 
 business or commercial operations which are unconnected with 
 the functions of government. The city thus occupies a posi- 
 tion between the state, which may not be held responsible for 
 its action, and a private corporation, which is responsible for 
 all its acts.^ 
 
 A city is responsible for all the contracts which it makes. Liability 
 
 , .11- for contracts 
 
 whether these are to carry out the governmental business 
 or in furtherance of some private or commercial or business 
 enterprise which the city has undertaken. 
 
 iSee W. B. Munro, The Government of American Cities, p. 81. 
 2 Ibid. pp. 86-87, with references to McQuilhn and to Dillon. 
 ^Goodnow and Bates, Municipal Government, p. 95.
 
 378 STATE AND MUNICIPAL GOVERNMENT 
 
 Liability for A distinction is made in holding the city liable for torts: 
 ^°^^ when acting in its public or governmental capacity the city 
 
 is not liable for its torts, but when acting in its private capacity 
 it is liable. ^Moreover, with regard to torts committed by its 
 agents, a similar distinction is made. The city is not liable 
 for the acts of those agents or officers engaged in purely 
 governmental service, but in the case of the officials and 
 employees who are engaged in the commercial or business 
 enterprises which the city undertakes, the city is liable for 
 damages on account of their torts, whether these arise from 
 negligence or from inefficiency. Thus a city may not be held 
 liable for the action of the fire department, but is held liable 
 for all torts and damages a person may suffer from the adminis- 
 tration of the water department. The general rule is that 
 where the city performs some special function for which it 
 receives definite compensation it ceases to act in its general 
 or governmental capacity and is subject to the same liabilities 
 as a private corporation.^ 
 Attitude of Such being the position of the city in the state, and such 
 ture^tfwaVd ^^^ powers and responsibilities, it is evident that it occupies 
 the cities ^ purely subordinate position and that the whole story of 
 municipal development depends upon the attitude which the 
 people of the state and the legislature manifest toward it. 
 This has varied from time to time ; but inasmuch as the 
 theory of strict construction of charters has always been ap- 
 plied, and since the growth of the cities has necessitated new 
 or additional powers, the cities have constantly been forced to 
 ask for special legislation and legislative consideration. More- 
 over, as has been shown, in certain periods of municipal develop- 
 ment the legislatures have for partisan purposes frequently 
 interfered in municipal affairs. 
 Special Cities have always been subjects of special legislation. By 
 
 legislation ^g^^ ^^^ mischievous results were beginning to be obvious, and 
 efforts were made to check or control it. These measures were 
 
 1 For a more extended treatment of this subject see W. B. Munro, 
 The Government of American Cities, pp. go-ioi. The whole question of 
 liabilities is exhaustively discussed in J. F. Dillon's "Commentaries on 
 the Law of Municipal Corporations," Vol. IV, pp. 2807-3064.
 
 RELATION OF THE CITY TO THE STATE 379 
 
 not immediately successful ; in fact, the volume of special 
 legislation increased in the next decades. For example, in 1870 
 the New York assembly passed 808 acts, of which 212, amount- 
 ing to three fourths of the bulk of the statutes of the year, 
 related to cities and villages.^ Between the years 1884 and 
 1889 the legislature passed 1284 acts, 390 of which affected 
 New York City.- In 1890, 67 laws were passed by the legisla- 
 ture of Maryland affecting Baltimore alone. ^ In Massachu- 
 setts, between 1885 and 1908, there were four hundred special 
 laws passed relating to Boston; and in 1916 — in spite of the 
 fact that Massachusetts had adopted the optional charter law 
 — over three hundred requests for special legislation were re- 
 ferred to various committees, and 171 were enacted into laws.* 
 Such a volume of special legislation is hurtful and inefficient. 
 Its necessity may possibly arise because of an ill-drafted 
 charter or an improper classification of the cities of the state 
 by general law. But errors in charter drafting or in classi- 
 fication of cities are extravagantly rectified if that process com- 
 pels the legislature to remedy them by special legislation, 
 which is wasteful of the time and energy of the legislature. 
 That body at best is very busy, and in many states the length 
 of its session is strictly limited. To insist that a large propor- 
 tion of its efforts should be devoted to considering municipal 
 problems in which, after all, only a small portion of the 
 legislators are interested, is to place too great a burden on 
 an already overworked body. In their anxiety to secure the 
 desired legislation the cities have, moreover, been known to 
 maintain expensive lobbies for the purpose of influencing the 
 legislators. Such special legislation is also hurtful in many 
 instances to the particular city. It is frequently passed not 
 for the purpose of benefiting the city concerned but to further 
 the fortunes of a political party and a certain economic group. 
 Instances are not wanting where some cities have been de- 
 prived of valuable privileges by the legislatures when their own 
 
 ^Goodnow and Bates, Municipal Government, p. 100. 
 
 ^F. J. Goodnow, Municipal Home Rule, p. 23. 
 
 "Goodnow and Bates, Municipal Government, p. 100. 
 
 •*W. B. Munro, The Government of American Cities, pp. 61-67.
 
 38o STATE AND MUNICIPAL GOVERNMENT 
 
 governments desired to retain them. Special legislation is in- 
 efficient. The majority of the members of the legislature are 
 not vitall}' interested in the special bills reported by the 
 committees. The various committees themselves, as has been 
 shown/ are made up by the organization in the legislature and 
 not all the cities by any means are represented on their com- 
 mittees. In some states it has become the habit of the legisla- 
 tive committees to consult and take the advice of the members 
 of the majority party who happen to come from the particular 
 city affected. If it should happen, as it sometimes does, that 
 certain interests dominate the political fortunes of that city 
 and the members of the legislature from it, the result is that 
 the legislative action is controlled by these interested parties 
 rather than by the best interests of the city. At best, special 
 legislation is likely to be inefficient ; at its worst, it may be 
 used to further corruption and misgovernment. 
 Limiutions The control of the state over the city is limited in two ways : 
 power of the fi^st, by the general prohibitions of the Federal Constitution 
 6Ute over ^yhich prohibit the state from depriving any person of property 
 or liberty without due process of law, from impairing the 
 obligation of contracts, or from taking private property for 
 public use without just compensation. Second and more im- 
 portant, however, are the limitations which are found in the 
 constitutions of the various states. These limitations have 
 steadily increased in number. As has been shown, during the 
 first fifty years of municipal growth the cities were left entirely 
 at the mercy of the state legislature. By 1850, however, the 
 evil of such unregulated power was evident, and certain states 
 began to insert limitations in their constitutions in order to 
 protect the cities from the dominance of the legislatures. These 
 restrictions are expressed in different ways. Some of them deal 
 with the methods of framing or amending the charter and pro- 
 hibit the passage of special laws for individual cities.- Others 
 are designed to prevent the legislature from allowing cities 
 to do things which have been found dangerous and hurtful ; 
 for example, to grant perpetual franchises to public-service 
 
 ^Sce pases 210-213. 
 
 2 At least thirty states have adnptcfi restrictions of this sort.
 
 RELATION OF THE CITY TO THE STATE 381 
 
 corporations or to exceed their borrowing power. Another class 
 of restrictions is aimed at insuring the consent of the citizens of a 
 municipality to any proposed change. In some states no change 
 can be made in the charters unless ratified by a referendum of 
 the citizens. Other states, however, have gone further and have 
 established municipal home rule ; that is, they allow the cities 
 to frame their own charters without legislative interference. 
 
 The first state to prohibit special legislation was Ohio. The Restrictions 
 constitution of 1851 decreed that the state legislature could Jftion^'of 
 pass no special laws for the individual cities, but that all cities i^gj^iatioii 
 should be organized according to a general law which should 
 have application throughout the state. In 1852 the legislature 
 passed such a general law, dividing the cities of the state into 
 two classes. The process of classification, however, continued 
 until at one time there were eleven classes of cities, eight of 
 which contained but a single city. Legislation, therefore, for 
 any one of these eight classes was equivalent to special legisla- 
 tion for an individual city. In 1902 the supreme court of Ohio 
 overruled its previous decisions by declaring "that the present 
 classification cannot be regarded as based upon differences in 
 population, or upon any other real or supposed differences in 
 local requirements. Its real basis is found in the differing 
 views or interests of those who promote legislation for the 
 different municipalities of the state." ^ This forced the legisla- 
 ture to adopt a general code for all cities having a population 
 of more than five thousand. The result was almost as unfortu- 
 nate as the minute classification which had previously existed, 
 in that the largest cities in the state were given no greater or 
 other powers than the small cities and were thus unable to deal 
 with the special problems which confronted them. This con- 
 dition continued until 191 2, when the constitutional provision 
 of 1 85 1 was replaced by one allowing the cities to adopt by a 
 referendum any charter or law which the legislature might pass, 
 
 ^ State V. Jones, 66 Ohio St. 453, quoted by J. A. Fairlie, Essays in 
 Municipal Administration, p. 100. Chap, v deals with "The Municipal 
 Crisis in Ohio," leading to the adoption of the general code. See also 
 H. L. McBain, The Law and the Practice of Municipal Home Rule, 
 pp. 621-645.
 
 382 STATE AND MUNICIPAL GOVERNMENT 
 
 The optional Some statcs are still unwilling to grant municipal home rule, 
 system but recognize the evils of a rigid municipal code. Several of 
 these states — for example, Massachusetts, New York, North 
 Carolina, Ohio, and Virginia — have enacted what may be 
 described as optional charter laws; that is, by general statute 
 the legislature frames several different types of charters which 
 any city within the state may adopt by a referendum vote.^ 
 The Massachusetts system offers four types, including the 
 commission-government and city-manager plans. Six different 
 styles are presented in the New York law, which any city 
 except New York, Buffalo, or Rochester may choose. This 
 plan has certain advantages in theory. In all probability it 
 presents plans which have been carefully considered, and it 
 provides for a certain degree of uniformity while allowing for 
 the variations which different cities may require. It is de- 
 signed to save the city the inconvenience and expenditure of 
 time and energy involved in framing its own special charter, 
 and it frees the legislature from the pressure which cities 
 always exert for the adoption of their particularly designed 
 charters. Moreover, it gives the cities home rule within cer- 
 tain limits. Unfortunately, however, not many cities have 
 taken advantage of this plan, and in Massachusetts at least 
 the practice still prevails for cities to frame their own charters 
 and attempt to force adoption by the legislature. 
 Regulated Some States have recognized the impossibility of prohibiting 
 legislation ^^^ special legislation for cities and have therefore tried to 
 regulate it. This is sometimes done, as formerly in Ohio, by a 
 classification of the cities according to population. In other 
 states provisions are inserted which require the assent of a 
 municipal officer or of the citizens of the municipality before 
 such special legislation is put into effect. The method adopted 
 in New York provides for both the classification of cities and 
 the assent of the mayors of the cities concerned. Legislation 
 may be adopted for any one of the three classes into which the 
 cities of the state are divided without consulting the municipal 
 authorities. Legislation for any single city, however, must be 
 submitted to the mayor of that city. If it receives approval 
 iSee W. B. Munro, The Government of American Cities, pp. 57-58.
 
 RELATION OF THE CITY TO THE STATE 383 
 
 the bill goes to the governor for his assent, but if the bill is 
 not approved it must be passed a second time by the state 
 legislature. Some cities have taken advantage of the provision 
 which allows the mayor to retain the act for fifteen days, and 
 acts passed at the end of the legislative session have been kept 
 by the mayor until the legislature has adjourned and then 
 returned with his disapproval, thus preventing the possibility 
 of such legislation during that session. A better system was 
 adopted by Illinois in 1904 and by Ohio in 191 2, which 
 referred all charter amendments and special legislation to a 
 popular referendum of the citizens of the municipalities in 
 those states. This gives the citizens an emphatic veto upon 
 all state legislation concerning their municipality, although it 
 does not guarantee the adoption of all measures which they 
 might desire. It has been used in the case of Chicago with 
 great effect in order to prevent the legislature from imposing 
 measures which were disliked by the people. The disadvan- 
 tage of this system lies in the inherent limitations connected 
 with the use of the referendum, which is hardly adapted to 
 the decision of complicated questions by popular vote. Yet, 
 as has been shown, the complicated questions of municipal 
 government were not always accustomed to receive careful or 
 unbiased consideration in the legislature. 
 
 The most far-reaching attempt to free cities from legislative Municipal 
 interference is by the establishment of municipal home rule.^ 
 This phrase — municipal home rule — is given different mean- 
 ings in different states and at different times. In some it may 
 
 iThe most comprehensive treatment of this subject is found in 
 H. L. McBain's "The Law and the Practice of Municipal Home Rule." 
 Bulletin No. 11, of the Bulletins for the Massachusetts Constitutional 
 Convention, Vol. I, p. 415, gives a brief treatment of this subject. 
 J. F. Dillon, Commentaries on the Law of Municipal Corporations, 
 Vol. I, pp. 154-175, discusses the home-rule provisions of certain states 
 with illustrative cases. F. J. Goodnow, Municipal Home Rule, presents 
 the earl}' views. Goodnow and Bates, Municipal Government, chaps, vi, 
 vii, particularly pp. 103-113, 121-131, and 138-148, give an excellent dis- 
 cussion of the system of home rule, the limitations thereon, and the rela- 
 tive effects of legislative and administrative control of municipal functions. 
 W. B. Munro, The Government of American Cities, pp. 61-79, gives an 
 excellent brief discussion.
 
 384 STATE AND MUNICIPAL GOVERNMENT 
 
 mean the mere prohibition against special legislation, and in 
 others the adoption of the optional charter system. Again, it 
 may mean the approval of the city for any legislation passed 
 by the state. In its wider and more general sense municipal 
 home rule signifies the power of the city to determine its own 
 form of government, choose its own officers, and regulate its 
 own activities. Thus, in its widest sense, municipal home rule 
 may mean local self-government. The weight of the judicial 
 opinions is that no city is endowed with all the functions of 
 such self-government,^ but that, as the Supreme Court has 
 declared, the cities are mere departments of the state.- In its 
 more usual sense municipal home rule includes the power of 
 the city to frame its own charter, either with or without the 
 assent of some state authority, and to conduct its government 
 according to the charter it has framed. 
 Extent of Up to iQiQ twelvc States had adopted some system allowing 
 
 municipal ..... . , . , o r^, 
 
 home rule municipahties to frame their own charters.^ The earliest state 
 to adopt this plan was Missouri, which provided in 1875 that 
 any city council might call for the election of a miniature con- 
 vention in order to frame the charter ; if approved by four 
 sevenths of those voting at a general or special election, this 
 charter went into effect without the necessity of obtaining the 
 assent of the state authorities. California adopted a similar 
 scheme in 1879, Washington in 1889, and Minnesota in 1896, 
 
 ij. F. Dillon, Commentaries on the Law of Municipal Corporations, 
 Vol. I, pp. 154-156. 
 
 -Barnes v. District of Columbia, 91 U.S. 540. For the decisions of 
 state courts denying the right of local self-Rovcrnmcnt sec J. F. Dillon, 
 Commentaries on the Law of Municipal Corporations, Vol. I, pp. 164-175. 
 
 ^Missouri (1875); California (1879); Washington (1889); Minne- 
 sota (i8q6) ; Colorado (1902); Oregon (1006); Oklahoma (1908); 
 Michigan (1908); Arizona, Ohio, Nebraska, and Texas (1912). In addi- 
 tion, Wisconsin in 1919 passed a constitutional amendment through its 
 first stage; Utah framed an amendment which is to be submitted to the 
 people at the ne.xt election ; and Pennsylvania passed two amendments 
 through one session of the legislature which will have to be submitted a 
 second time. Sec H. L. McHain, The Law and the Practice of Municipal 
 Home Rule, pp. 114-117, for a table showing (he machinery of home 
 rule. See also Bulletins for the Massachusetts Constitutional Convention, 
 Vol. I, pp. 447-449, for a table showing the states following this plan and 
 the method of initiation, ratification, and amendment.
 
 RELATION OF THE CITY TO THE STATE 385 
 
 but most of the states now utilizing this plan did not adopt 
 it until the twentieth century. Minnesota, Michigan, and 
 Ohio are the only states east of the Mississippi which allow 
 this system. 
 
 The majority of states permitting home-rule charter-making Procedure 
 
 . . . 1 1 i. J in making 
 
 provide for summonmg a charter commission, as a rule elected home-ruie 
 by the citizens voting at large. ^ In Oregon there is no proce- ^^"^"^ 
 dure prescribed by the constitution, but the provisions of the 
 initiative and referendum are applicable. The work of the 
 charter commission, which in most states is called a board of 
 freeholders, is then submitted for the approval of the voters 
 at either a general or a special election." In most all states a 
 majority of those voting on the question is required for the 
 ratification of this charter. Missouri, however, stipulates four 
 sevenths of those voting at the election except in the case of 
 St. Louis, where only a majority is required. Minnesota has 
 a similar requirement. In eight of these states the charter is 
 put into effect without the approval of the state authorities; 
 in the others the legislature or governor must act before the 
 charter is finally adopted.^ Amendments to such charters may 
 be proposed either by the council or by petition of a certain 
 percentage of the voters, varying from 5 per cent in Colorado 
 and Nebraska to 25 in Arizona. These amendments are sub- 
 ject to popular ratification, and where the state authorities are 
 required to act on the original charter similar action is required 
 for the amendments.^ 
 
 Considering home rule from the first point of view — namely. Limitations 
 the power of the city to determine its own frame of govern- ruiecharter- 
 ment — there can be little objection to any one of the methods '"^'^'"s 
 
 1 In Minnesota the judge of the district court may appoint the com- 
 mission and must appoint it on petition of 10 per cent of the voters. 
 
 2 In Oregon the council may approve the charter, but its act is subject 
 to a popular referendum if demanded. 
 
 3 In California it must be approved by a concurrent resolution of the 
 legislature; in Oklahoma and Arizona by the governor if not in conflict 
 with the state constitution and laws; in Michigan by the governor be- 
 fore it is submitted to the voters, but his veto may be overridden by a 
 two-thirds vote of the charter commission. 
 
 4 See H. L. McBain, The Law and the Practice of Municipal Home 
 Rule, pp. 656-667, for a discussion of the working of this machinery.
 
 386 STATE AND MUNICIPAL GOVERNMENT 
 
 described here. It is not of vital importance to the state 
 whether a city adopts the ordinary type of government (that 
 is, mayor and council), the commission, or the city-manager 
 plan. The interest of the state lies rather in the control 
 of both the municipal functions and the municipal officers 
 appointed to enforce state and municipal laws. Municipal 
 charter-making in the sense of adopting some particular 
 scheme of municipal government may well be performed by 
 the city itself without much state supervision. But, as has 
 been shown, a city charter deals not simply with the frame- 
 work of the government but with the electorate and its func- 
 tions and with the powers exercised by the city council ; it also 
 determines the activities in which the city may engage. The 
 state is vitally interested in these functions and duties. 
 Choice of Self-government involves the right to choose the officers who 
 
 mcii^^ shall administer the functions of government. Municipal home 
 rule, therefore, would vest in the cities the choice of such 
 officers. Yet, as has been seen,^ the failure of the city to 
 appoint proper and efficient officials has led the states again 
 and again, sometimes at the request of the cities themselves, 
 to take over the appointment of certain city officials. Par- 
 ticularly was this true with regard to the police and fire com- 
 missions and in some instances the financial officers. The 
 extension of this movement had two causes. In the first place, 
 certain cities appealed to the legislature for protection against 
 their own government ; this was emphatically true in machine- 
 ridden cities, where the parties or certain interests were exploit- 
 ing the city for their selfish purposes. A second reason is found 
 in the fact that many municipal officers are charged with the 
 enforcement of state laws; for example, the police, and, for- 
 merly, those officials charged with the enforcement of liquor 
 regulations. Such officials might rightly be classified as state 
 officers. The courts, holding the traditional narrow view with 
 regard to the powers of a municipality, have tended to inter- 
 pret away constitutional prohibitions on state interference by 
 assuming that these officers were state rather than municipal 
 officials. Some state control over certain officials who are the 
 
 'Sec page's 307-309.
 
 RELATION OF THE CITY TO THE STATE 387 
 
 agents for the enforcement of state laws is obviously necessary. 
 Consequently the city-made charters might properly be re- 
 stricted or the officials chosen under them subjected to some 
 form of state regulation and supervision. What this should be 
 will be discussed later. 
 
 By far the most important part of city charters consists in Municipal 
 the grants of power which determine the functions of the city. 
 In these the state is vitally interested. Not only do the cities 
 contain the larger part of the population of the United States, 
 but the activities of this population may affect the entire state 
 in many ways. For example, the question of the water supply 
 of a great city is one which affects not simply the city itself 
 but the surrounding communities. In the same way, the dis- 
 position of the sewage of a large city is of vital importance 
 to the entire state. Particularly is this true when several 
 municipalities are in close proximity to each other. Thus, for 
 example, Massachusetts has very properly and, on the whole, 
 successfully dealt with the water supply and drainage of the 
 so-called metropolitan district, which contains not only Boston 
 but several cities of the second class. The financial condition 
 of the cities is also a matter for state concern. Therefore a 
 very definite limit should be placed upon the functions which a 
 city-made charter grants to the council. In what fields these 
 limitations should be exerted and how they should be exercised 
 will be discussed later. 
 
 The city as a political unit will be considered in the next Political 
 chapter. Here, however, it is necessary to note the integration the city to 
 of politics in city and state as a factor in determining the *^^s*^^^ 
 question of home rule. Historically the national parties have 
 dominated both the states and the municipalities. The doc- 
 trine of the complete subordination of the city to the state 
 strengthened this tendency. In a previous chapter^ it has been 
 noted that the successful party in state politics regarded the 
 patronage of the city as its legitimate perquisite. This feeling 
 grew stronger, if anything, in the decades immediately follow- 
 ing the Civil War. The federal system of government, in 
 which the powers of the state are distributed between the 
 
 iSee page 366.
 
 388 STATE AND MUNICIPAL GOVERNMENT 
 
 national, state, and local units, may at times require the con- 
 trol of all these units by a single party in order to realize the 
 complete policy of that party .^ Thus, party names and organi- 
 zations are the same for national, state, and municipal parties, 
 and the organization of the party in each area is not inde- 
 pendent, but integrated with the organization in other areas. 
 With the constant interference of the state legislature in munic- 
 ipal affairs this subservience of municipal to state parties was 
 perhaps necessary. To many observers such necessity has now 
 disappeared, and efforts are made to divorce municipal from 
 state politics. It is questionable whether this is possible or 
 even desirable. The growth of cities has brought more than 
 half of the people under their jurisdiction. The cities them- 
 selves are constantly reaching out in every part of the state 
 and affecting more and more the life and resources of the rest 
 of the state. What touches the cities for good or evil reacts 
 upon the entire state. With the extension of manhood suffrage 
 and the concentration of the alien element within the city, 
 it may be questioned whether the cities should be allowed to 
 exercise without restriction or supervision the "right of self- 
 government," which some of them claim but which the courts 
 have denied. That cities should be freed from captious and 
 selfish interference in their affairs by the legislature is obvious, 
 but that cities can never be allowed complete and entire 
 municipal home rule is equally clear. Hence the question to 
 be answered is to what extent and in what measure this state 
 control over cities may best be exercised. 
 Fields in At the risk of some repetition it is advisable to summarize 
 
 control ^is^ ^^T briefly the fields in which state control of municipal 
 exercised- ^^Jfctions is advisable or necessary. The city from one point 
 of view is but an area of the state government. Emphatically 
 is this true in the conduct of elections. There is no doubt of 
 this when one remembers that in some states the urban popu- 
 lation is so much greater than the rural and that the policy 
 (i )Eiec- of the state is determined by elections in the cities. If the 
 states are to be maintained as political entities it is necessary 
 
 1 Everett Kimball, The National Government of the United States, 
 pp. 138-139- 
 
 tions
 
 RELATION OF THE CITY TO THE STATE 389 
 
 for them to be able to enforce their laws and to supervise 
 elections in the cities. 
 
 The power to levy taxes is a sovereign power. At first the (2) Finance 
 cities were not granted the general powers of taxation. To 
 surrender such entirely to the cities might disrupt the financial 
 system of the state and possibly interfere with the state's 
 resources not only in taxation but in other fields. Closely 
 connected with taxation is the power to incur debts. Since 
 the cities contain more taxable wealth than the rural areas, 
 the states cannot well allow the cities the complete and free 
 use of that wealth ; to do so would hamper the state. No 
 city, whether from its own point of view or that of the 
 state, should be allowed to bankrupt itself by a heavy load 
 of debt. 
 
 The greater part of the duties of the municipal police is (3) Police 
 the enforcement of state laws. As such they are emphatically 
 state officials and suitable subjects for state supervision. When 
 it is remembered that the percentage of crime is higher in the 
 cities than in the state at large and that the rapid means of 
 transportation which the motor puts at the disposal of the 
 criminal makes capture not always certain, it is clear that 
 the inhabitants of the entire state are vitally interested in the 
 preservation of law and order in the cities. 
 
 The question of public health is very important. It has (4) Health 
 been shown that the death rate increases with the density of 
 population, and there is no doubt that the concentration of 
 population in the cities is an inviting field for epidemics. The 
 health laws of the state must be applied to city and rural 
 districts alike, and the entire state is interested and affected 
 by the water supply of the city and the disposal of its waste. 
 
 Education is coming more and more to be regarded as a state (5) Educa- 
 concern. In a democratic system of government this must be 
 so because the success of the government depends in a large 
 measure upon the intelligence of the electorate. One must 
 admit, however, that the school systems of the cities are gen- 
 erally superior to those in rural districts, yet it is of vital 
 importance that no opportunity be allowed for any deteriora- 
 tion of standard.
 
 390 STATE AND MUNICIPAL GOVERNMENT 
 
 Methods of 
 state 
 control : 
 (i) Legis- 
 lative 
 control 
 
 (6) Charity Charitable relief is steadily becoming more a matter of 
 interest to the entire state. State institutions on the whole have 
 proved superior to those maintained by local agencies. With 
 the more scientific administration of charity it is probable that 
 the relief of the poor, the unfortunate, or the defective can be 
 administered more satisfactorily through the state authorities 
 than by the duplication made necessary if the municipalities 
 are to be responsible. 
 
 The legislative control of municipalities was a principle of 
 English law which was transplanted to the colonies ; it had its 
 origin in the theory of the supremacy of Parliament and the 
 centralized government of England. Although it has been 
 largely abandoned in England in actual practice, if not in 
 form, it still persists in the United States. Theoretically the 
 doctrine views the city as a corporation subject (like all 
 corporations) to the control of the state legislature. The legis- 
 lature grants the charter, and the legislature may extend, 
 amend, or diminish the powers of the city. Viewing the city 
 charter alone as the constitution of a subordinate corporation, 
 this legislative control might be justified ; but when the mani- 
 fold functions and activities of the city are examined and the 
 intense interest of the state in the efficient performance of 
 these functions is realized, it will be seen that legislative 
 control has serious defects. The defect is in the very nature of 
 legislation. Legislation is the formulation of rules, not their 
 enforcement. Legislative control, therefore, attempts to formu- 
 late, by means of statutes, minute rules for every imaginable 
 situation ; but such a task is impossible, since cities vary in 
 their requirements and necessities. Thus, constitutional provi- 
 sions to the contrary, legislatures are constantly obliged in 
 one form or another to pass special legislation. Again, the 
 legislature is unable to enforce its acts and is obliged to rely 
 upon the courts. Finally, legislatures themselves are ill adapted 
 to foresee the necessities of the cities and are often unwilling 
 or unable to solve city problems. The political intliience which 
 the city member may exert in the legislature not infrequently 
 leads that body to adopt measures contrary to the best interests
 
 RELATION OF THE CITY TO THE STATE 391 
 
 of city and state alike. This has been emphatically proved in 
 connection with the control of municipal indebtedness. 
 
 Since the cities are corporations subject to law, the courts (2)judiciai 
 might be expected to be able to supplement the legislature in 
 enforcing its provisions. In certain matters this is true. In 
 enforcing a statute the courts may, for example, invalidate a 
 city loan made contrary to law, but in such cases the political 
 effect is awkward. The loan has been issued and the bonds 
 are in the hands of the public, who have a natural feeling of 
 resentment that they should be made to suffer loss from the 
 act of a city council. In the second place, the judges and 
 prosecuting officers, who enforce the state law, are the products 
 of the same political system which controls the city government, 
 and their action and point of view are not without bias when 
 passing upon the acts of municipal authorities. There is, more- 
 over, a wide field of municipal activity which is properly be- 
 yond judicial control. This is its discretionary power. The 
 courts have no control over the exercise of the discretionary 
 powers granted by the city charter, and the legislature can only 
 forbid or prohibit. Thus the effective supervision of munici- 
 palities requires some other form of control than legislative 
 or judicial. 
 
 The idea of administrative control originated in Europe, and (3) Admin- 
 much of the success of municipal government in Prussia is due control 
 to the relative absence of legislative control and the prevalence 
 of administrative control. The advantages are obvious, par- 
 ticularly as regards discretionary powers. No legislature can 
 hope to foresee all the wants of all the cities, nor are these 
 cities or their needs uniform. But any legislature may lay 
 down certain simple and comprehensive rules vesting in ad- 
 ministrative authorities the power to apply these rules with 
 such variations as the needs of the cities require. To an in- 
 creasing degree the states are adopting this method. State 
 civil-service commissions frequently hold examinations and 
 apply the provisions of the civil-service law directly to the 
 cities. The finances of the cities in many states are subject to 
 administrative state control, while the city boards of education
 
 392 STATE AND MUNICIPAL GOVERNMENT 
 
 and of health are governed by the rules and regulations of the 
 state administrative authorities. Although administrative con- 
 trol has not developed to the same extent in this country that 
 it has in England or in Europe, yet the results are generally 
 excellent. It has somewhat limited the evils of special legis- 
 lation, it has avoided the delay and injustice of judicial control, 
 and it has brought about a more prompt and efficient state 
 control in those fields where state administration is desirable.
 
 CHAPTER XXII 
 
 THE CITY AS A POLITICAL UNIT 
 As a political unit the city must be examined from two points Relation of 
 
 - . T . . , . , ,..,,. the political 
 
 of View. It IS an area within the state, and its inhabitants organization 
 form a section' of the general state electorate, whose action and^hr^ty 
 determines in part the political action of the state. But the 
 city is also a political unit with its own very definite problems 
 to solve. The population of the city, moreover, as has been 
 shown, has different characteristics from that of the state at 
 large. The political machinery in a city, therefore, is required 
 to function for two purposes — for the state and for the city 
 itself. The organization and operation of this machinery is 
 most important, but it is conditioned by state laws rather 
 than by municipal necessities. As such, it has been treated 
 in Part II ; in this chapter it is desirable not to repeat what 
 has been previously said, but to show how the peculiar com- 
 position and problems of the city affect the general principles 
 of political action. 
 
 The Municipal Electorate 
 In any community the composition of the electorate is of importance 
 
 , . ,.,,.. . . . ^ ... ot the 
 
 vital importance; most emphatically is it so m cities. It will municipal 
 be remembered that the alien element is larger in the city ^i<^^^°''^t^ 
 population than in the country and that in some cities the 
 foreign-born and their children far outnumber the native ele- 
 ment. The city contains a greater proportion per thousand of 
 people in middle life. Fewer city-dwellers own their homes, 
 and thus the city electorate lacks the steadying influence found 
 in the country. A greater proportion of the population of the 
 city pay no taxes at all or only the poll tax. With these con- 
 ditions in mind, it must be remembered that this electorate, 
 through some form or other of political action, is called upon 
 
 393
 
 394 STATE AND MUNICIPAL GOVERNMENT 
 
 Electoral 
 qualifica- 
 tions fixed 
 by the 
 state : 
 
 (i) Citizen- 
 ship 
 
 to perform directly or through its representative the manifold 
 functions which the density of the population requires. The 
 municipal government, which is the creature of the municipal 
 electorate, is constantly facing complex and technical problems 
 and is spending vast sums of money in their solution. On no 
 other group of the population are such burdens laid. No 
 other group is so heterogeneous, so lacking in tradition, nor so 
 susceptible to political organization and manipulation. 
 
 The electoral qualifications for the cities are fixed by state 
 law. In spite of the different characteristics of the city popu- 
 lation, the legislatures have treated the electorate of the state 
 as a unit; they have not taken into account the various dif- 
 ferences just described nor the peculiar problems which the 
 cities face. From the point of view of the state as a political 
 unit, perhaps this is justifiable, for in state political action the 
 peculiarities of the city population are neutralized or corrected 
 by those of the rural population. In the control of municipal 
 affairs, however, there is no such corrective influence, and the 
 city electorate, with all its limitations, is obliged to face and 
 attempt to solve its peculiar problems. 
 
 ]\Iost countries require citizenship as a qualification for vot- 
 ing. This is not invariably true in the United States, for nine 
 states allow aliens to vote when they have declared their inten- 
 tion to become citizens.^ In former times — even where citi- 
 zenship was required — the large cities furnished fertile fields 
 for naturalization frauds, and it was not uncommon for 
 political organizations to furnish evidence and witnesses for 
 the purpose of naturalizing whole groups of aliens whose vote 
 they might control.- In recent years, however, the whole pro- 
 cedure of naturalization has been revised and, by the control 
 of the Department of Justice through the United States district 
 attorneys, has been made much more effective. 
 
 1 Arkansas, Indiana, Kansas, Missouri, Nebraska, South Dakota, and 
 Texas. In two stales aliens are allowed to vote who are otherwise 
 qualified and have dcilarrd their intention to become citizens before 
 November 8, 1804 f Michigan) and December i, iqoS (Wisconsin). 
 
 -James Brycc, The American Commonwealth, Vol. II, p. 103, gives 
 a description of these conditions.
 
 THE CITY AS A POLITICAL UNIT 395 
 
 The voting age in every state is fixed at twenty-one, and (2) Age and 
 since the ratification of the Nineteenth Amendment (1920) 
 disabilities with regard to sex have been removed. 
 
 The requirements for residence vary greatly in the different (3) Resi- 
 states. In general they are fourfold. The first is residence in 
 the state, which varies from two years ^ to only three months.^ 
 The most common period is one year. Residence in the county 
 is required for a definite period, from one year in Alabama to 
 ten days in Wisconsin.' Residence within the city varies from 
 one year in Mississippi and Virginia to ten days in Iowa and 
 the other states."* Residence in the electoral districts, precinct, 
 or ward is also essential. This varies from one year in Missis- 
 sippi to one day in Maryland. Sixteen states demand a thirty 
 days' residence.^ 
 
 The term "residence" is a technical one. It differs from the Meaning 
 
 of '' iGsi— 
 
 terms "domicile" and "inhabitant" in that it is largely deter- aence" 
 mined by the desire of the individual. A man's legal residence is 
 commonly where he says it is, where he intends to remain, or 
 in the particular community of which he wishes to be consid- 
 ered a member. Since in the United States state-income and 
 personal-property taxes are levied by the jurisdiction in which 
 the citizen has his residence, it is often of great importance to 
 the individual just where he will declare his residence to be. 
 Cases are not unknown of a person's keeping his residence in 
 a state which has no income tax or in a town or city where the 
 tax rate for personal property is low or the assessors complacent. 
 The restriction of the franchise to legal residence in a city 
 has an unfortunate effect. It is a matter of common knowledge 
 that many of the large cities are surrounded by suburbs in 
 which live a large population who draw their livelihood from 
 
 1 Alabama, Louisiana, Mississippi, North Carolina, Rhode Island, 
 South Carolina, and Virginia. 
 
 2 Maine. 
 
 ^Oregon and Pennsylvania make no specified requirement for county 
 residence. 
 
 "^lowa, Nebraska, South Dakota, West Virginia, Wisconsin, and 
 Wyoming. 
 
 5 For table of qualifications see the annual editions of the American 
 Year Book and World Almanac.
 
 396 STATE AND MUNICIPAL GOVERX:\IENT 
 
 Effect 
 
 of the 
 
 residence 
 
 requirement 
 
 on the 
 
 municipal 
 
 electorate 
 
 (4) Educa- 
 tion 
 
 (5) Owner- 
 ship of 
 property 
 
 and are vitally interested in the city and its administration. 
 These persons are deprived of any share in the municipal 
 government, although their business is carried on in the city. 
 This suburban element, moreover, is often the very one which 
 the city can least afford to do without. It generally represents 
 moderate success in business life and a higher grade of intelli- 
 gence and stability than is found in the heterogeneous, shifting 
 population of the city. In France and in Italy, on the other 
 hand, it is recognized that a person who pays taxes in the city 
 may have a greater interest there than in the place of his 
 domicile, and he is therefore allowed to choose in which place 
 he will vote. In England occupation of premises either for 
 domicile or business purposes takes the place of the residence 
 requirement. Thus in foreign cities it is possible that persons 
 who are vitally interested in the affairs of the city may take 
 part in its management, and the city is not deprived of the 
 votes of an interested class. 
 
 The qualifications in regard to literacy are fixed by the 
 state authorities and have been fully discussed elsewhere.^ It 
 should be remembered, however, that the percentage of illiter- 
 ates is lower in the cities than in the rural districts. It is too 
 short a time since the passage of the Nineteenth Amendment 
 to determine whether the percentage of illiterate voters in the 
 cities is now greater than that in the rural districts. The or- 
 ganizations attempting to register women for the elections of 
 1920 found in some cities a surprisingly large number who 
 could not pass the reading and writing test which is required 
 in some states. 
 
 Rhode Island is the only state which requires ownership of 
 property as a qualification for the city franchise. The constitu- 
 tion of 1842 required the ownership of real estate valued at 
 S134, or the payment of rent to the amount of S7.- In 1888 
 manhood suffrage was established for state elections, but no 
 person was allowed to vote for the election of the city council 
 or upon the proposition to impose a tax or expend money in 
 any town or city unless he had paid a tax on property valued 
 
 ^See papes 40-45. 
 -Article II, Sect. i.
 
 THE CITY AS A POLITICAL UNIT 397 
 
 at $134.^ In Virginia the legislature may prescribe a property- 
 qualification not exceeding $250 for any county, city, or town.- 
 
 Payment of poll taxes is made a qualification for voting in (e) Payment 
 several states." In certain others the payment of all state 
 taxes is also required.* Massachusetts and some other states 
 require only that the voters shall have been assessed for the 
 poll tax, which is a very different thing from having paid it. 
 Where the requirement is that the voter shall have paid it, in- 
 terested political organizations not infrequently pay this tax 
 for certain kinds of voters. This is expressly forbidden by the 
 constitutions of Alabama and Louisiana, and in those states, 
 as well as in most of the Southern states, the provisions requir- 
 ing the payment of taxes serve to disfranchise a large part of 
 the negro vote. A requirement that the voter shall have merely 
 been assessed for the poll tax is of practically no use, for it 
 shuts out no one. 
 
 The preparation of the voting list involves the same proce- (7) Regis- 
 dure for state and municipal elections and is prescribed by the 
 state laws already discussed.^ But the problem in the densely 
 populated city is vastly different from that in the rural dis- 
 tricts, and the laws of many states prescribe a different proce- 
 dure. The most effective method requires personal registration 
 for each election, as is the case in some of the larger cities. 
 This, however, has been felt to place too great a burden upon 
 the voter, and in a few states it is the practice to keep the 
 voter's name on the list as long as he continues to be assessed 
 for taxes. This method removes the test of continued interest 
 in elections which one writer has found so desirable.*^ 
 
 •1 Amendment VII. 
 
 2 See Index Digest of State Constitutions. 
 
 "Alabama, Arkansas, Louisiana, Mississippi, North Carolina, Rhode 
 Island, South Carolina, Tennessee, Texas, and Mrginia. 
 
 ^Mississippi, Pennsylvania, and South Carolina (of those not registered 
 before 1898). 
 
 5 See pages 45, 61, 62. 
 
 f' See A. N. Holcombe, State Government in the United States, p. 158. 
 For a contrary view see W. B. Munro, The Government of American 
 Cities, p. 118.
 
 398 STATE AND MUNICIPAL GOVERNMENT 
 
 The Municipal Electorate in Action 
 
 Work of the 
 electorate : 
 
 (i) Nomi- 
 nations 
 
 Nomi- 
 nations 
 generally 
 made by 
 caucuses 
 
 Closed 
 primaries 
 
 The non- 
 partisan 
 primary 
 
 The functions of the municipal electorate, like those of the 
 state, are primarily in the choice of the officers and members 
 of the municipal council. Through these officials, chosen by 
 the municipal electorate, the greater part of the functions of 
 the city is exercised. It is true that the devices of direct legis- 
 lation are used in municipal government to a larger degree than 
 in state affairs, but the greater part of the duties of the elec- 
 torate is confined to the nomination and election of officers. 
 The methods by which these functions are performed are of 
 importance not only to the municipality itself but also to the 
 state, of which the municipality is a part. 
 
 The whole process of nomination has been fully discussed 
 with regard to state elections, and the merits of the convention 
 system and the primaries have been presented. It is only nec- 
 essary here to note the differences which distinguish municipal 
 political action from that of the state at large. First, the 
 convention system is absent. Except in the largest cities,' nomi- 
 nations for municipal officers are commonly made in the caucus 
 or primary. Thus the discussion of the relative merits of the 
 convention and the direct primary for municipal elections is 
 theoretical only. It might be that municipal conventions would 
 have nominated better candidates, but inasmuch as the conven- 
 tion system has been so rarely used in municipal affairs, little 
 data is available on which to base a judgment. In practically all 
 cities the caucuses or primaries were once confined to the mem- 
 bers of the political party, and in some cities participation in 
 the primary could be obtained only by election to it. Although 
 in general such a severe restriction was not required after the 
 state began to interest itself in the process of nomination, the 
 control of the primaries is still in the hands of the members of 
 the party. 
 
 The theory of the nonpartisan primary is that pariy desig- 
 nations have no place upon the municipal ballot. It is both 
 an open and a direct primary; that is, it nominates candidates 
 directly to office without the intervention of a convention and 
 it is open because all members of the electorate may attend
 
 THE CITY AS A POLITICAL UNIT 399 
 
 irrespective of tlieir party. The names appear on the ballot 
 as the result of a petition signed by a small number of qualified 
 voters, usually twenty-five. They are not in party columns, 
 however, and are without party designation. The candidates 
 for each office are arranged either alphabetically or by lot. 
 Without any guide the voters are asked to pick out from the 
 candidates the ones they wish to nominate. In counting the 
 ballots the two candidates who receive the highest number of 
 votes are declared nominated and their names, and theirs 
 only, appear on the ballot at election. In some states, how- 
 ever, if any one candidate receives a clear majority of the 
 votes cast, he is declared elected without the necessity of the 
 formal election. 
 
 The nonpartisan primary is strictly not a primary, but Merits and 
 a preliminary election. As such, it has certain merits and the non- 
 defects — to a slight degree it encourages independent can- p^^^ 
 didates ; furthermore, it narrows the choice at election to two 
 candidates and thus prevents the election of any official by 
 a minority of the votes cast, as frequently occurs when 
 the final ballot contains several candidates. One of the 
 greatest objections, however, is the burden which is put upon 
 the voter. Nomination through the medium of parties gives 
 some information to the voter; the party designation, while 
 not necessarily a certificate of character and ability, does 
 assure the voter that the candidate is acceptable to the party 
 with which he generally acts. This is entirely wanting on the 
 ballots in the nonpartisan primary. The other defects of the 
 nonpartisan primary are those which have been mentioned in 
 discussing the direct primary and deal with both the cost of 
 the system and the character of the candidates nominated.^ 
 The nonpartisan primary was first used in Iowa in those cities 
 adopting commission government, and has since been adopted 
 by other cities. 
 
 Nomination by petition is an attempt to do away entirely Nomination 
 
 . , , , , . , . .... by petition 
 
 With the system both of party conventions and of primaries, 
 whether closed or open, direct or nonpartisan. According to 
 this method the names of the candidates are placed upon the 
 
 iSee pages 68-74.
 
 400 STATE AND MUNICIPAL GOVERNMENT 
 
 ballot as the result of a petition. In Boston, when it was first 
 adopted in 1909, the signatures of 5000 voters were required; 
 in 1 913 this was reduced to 2500. The petitions for nomina- 
 tion bear the name and address of each candidate, but no 
 party designation. After being signed they are given to the 
 election commissioners for verification. Unlike the primary 
 system, nomination by petition gives every class or group in 
 the community an opportunity to place the name of a candi- 
 date upon the ballot. This, however, is a dubious advantage, 
 for as the number of candidates on the ballot increases, the 
 possibility of the election by the minority of the voters also 
 increases. Nor can it be proved that the caliber of the candi- 
 dates nominated by petition is any higher than that of those 
 chosen by the convention or primary system. 
 Effect upon In theory these systems both encourage independence and 
 ganizatVon weaken the control of the party organization. Without doubt 
 independence is encouraged, but it may be questioned whether 
 the party organization is very much hampered in its control 
 by this independence. As has been pointed out,^ under the old 
 method the party organization was forced to conciliate rather 
 than to discipline. Under the primary system any independent 
 candidate may test his fate; he has no complaint if he fails, 
 and the leaders of the organization can usually control enough 
 votes to crush an insurgent. Although nomination by petition 
 is in theory entirely independent of the party organization, 
 yet the leaders of the organization generally in secret caucus 
 pick out the candidates and circulate petitions in their favor. 
 Merits of An ideal scheme of nomination has not yet been devised for 
 
 mumcipai use in American cities. In all systems that have been attempted 
 either the power of the party organization is everywhere felt 
 or else the voter is left entirely without guidance. According 
 to Professor Munro the system should be simplified,- thereby 
 decreasing the honor which most Americans attach to mere 
 nomination. Certainly in the cities of other countries a simple 
 and easy method of nomination seems to work well, but it may 
 be questioned whether this would be the case in the United 
 
 ^W. B. Munro, The Government of American Cities, pp. 135-136. 
 -Ihifi. pp. 138-13Q. 
 
 nomination
 
 THE CITY AS A POLITICAL UNIT 401 
 
 States. It is to be feared that for many years to come Ameri- 
 can ballots would be burdened with the names of a multitude 
 of candidates should we adopt the French system, by which 
 any citizen may announce his candidacy, or the English method, 
 which requires the petition to be signed by only ten voters. 
 
 Municipal elections are everywhere conducted according to (2) Elections 
 state laws. Ordinarily these state laws make no difference be- 
 tween the procedure for the election of state officers and for 
 the election of purely municipal officers. In some cases, how- 
 ever, chiefly as the result of a special law or privilege granted 
 in the charter, a different date and different procedure is 
 adopted for municipal elections than is followed at state and 
 national elections. 
 
 In the attempt to remove municipal elections from the con- Time of 
 trol of state and national parties, some states have set the date ""ctions 
 of these elections at a different time from the others. When 
 the elections are held on the same date the state and the 
 municipal-party organizations cooperate and manage a single 
 campaign. This in itself is not objectionable if the best inter- 
 ests of both the state and the city were considered, but such 
 is not commonly the case. In small cities municipal interests 
 are subordinated to the advantages of the party in the state, 
 while in very large cities the reverse may hold true. Thus, 
 when the election dates coincide, it is almost impossible to 
 have an unprejudiced expression of opinion on municipal issues. 
 Political action in the city is unavoidably colored by the 
 national or state party issues. The great argument in favor 
 of holding the elections on the same date is the one of expense. 
 It costs not far from a dollar for every ballot cast at a munici- 
 pal election.^ In addition there must be considered the legiti- 
 mate expenses of the candidates and of the party organizations, 
 which, although raised by subscription rather than by taxation, 
 are met by the inhabitants of the city. To those who believe 
 in the strong control of the city by the state, anything which 
 would insure identity of party in both state and city would be 
 advantageous. To such it is an advantage to hold the municipal 
 and state elections on the same day. 
 
 iW. B. Munro, The Government of American Cities, p. 140.
 
 402 STATE AND MUNICIPAL GOVERNMENT 
 
 The ballot One great disadvantage in setting the same day for both 
 state and municipal elections is that it complicates the ballot. 
 Either separate ballots must be distributed for the state and 
 for the municipal elections, or the state ticket, already too 
 long, must be still further complicated and lengthened. The 
 effect on elections of the long and intricate ballot has already 
 been discussed and the advantage of the short ballot set forth. ^ 
 The ballots for municipal elections have ordinarily been shorter 
 than those for the state; fewer officers have as a rule been 
 chosen by direct popular election in municipal government than 
 in the government of the state. The tendency, moreover, is 
 toward still further decreasing the length of the ballot by 
 additions to the appointing power of the mayor, the commis- 
 sion, or the city manager. In an increasing number of cities 
 it has become evident that popular election is not the best 
 means to choose officers who, as far as their municipal func- 
 tions are concerned, are very frequently engaged in the man- 
 agement or administration of technical or business departments. 
 
 Preferential The system of preferential voting has already been de- 
 scribed.- It has been used in a modified form at the primary 
 elections of several states, but nowhere in the regular state 
 elections. More than forty cities, however, have adopted it.'' 
 The advantage of the system is fourfold : it insures election 
 by the majority, thereby preventing what has been proved so 
 unfortunate — a minority election resulting from the multiplic- 
 ity of candidates ; it avoids the trouble and expense of a second 
 election where the law requires a majority for choice; it 
 enables the voter to express his entire opinion and not simply 
 his first choice ; it still further weakens the power of the organi- 
 zation or forces the latter to select better candidates. It would 
 seem to be admirably adapted to municipal elections. 
 
 Proportional Proportional representation should be sharply distinguished 
 
 represen- . . ... » i i • , c • i • 
 
 tation from preferential voting. As has been said, preferential voting 
 
 insures the choice of the majority. Proportional representation 
 
 ^Sec paKC'S 95-90. 
 
 " See pane 101. 
 
 ^See Bulletin No. 27 in Hulletins for the Massachusetts ConstiUitioiial 
 Convention, Vol. II, pp. 307-319. Papc 313 ^ives a list of the cities 
 which have adopter! it.
 
 THE CITY AS A POLmCAL UNTI 403 
 
 is based on the principle ''that each political party or 'each 
 considerable party or group of opinion' shall be entitled in all 
 representative bodies to a number of representatives propor- 
 tionate to the number of its voting members."^ The workings 
 of this system have already been described.^ It remains only 
 to discuss its adaptation to municipal affairs. As already 
 pointed out, it is used in no state and in only two cities of any 
 considerable size — Ashtabula, Ohio, and Kalamazoo, Michi- 
 gan. Proportional representation obviously cannot apply to 
 the election of municipal officers. For thfse some system of 
 preferential voting is desirable. The tendency is to decrease 
 the number of directly elected officers and to vest more power 
 in the council or commission. Could proportional representa- 
 tion be tried in the election of councilors with advantage? 
 In both Ashtabula and Kalamazoo, where proportional repre- 
 sentation has been tried, the election worked according to the 
 theory, and the different groups of the electorate gained their 
 proportional representation in the municipal council.^ It may 
 be questioned, however, whether a council made up of mem- 
 bers chosen to represent racial, religious, and social groups 
 is best adapted to administer the affairs of a city. Race divi- 
 sions are too apt to appear in municipal politics, and shades of 
 opinion do not always coincide with these racial divisions. 
 
 Municipal Parties 
 
 The necessity for the part played by political parties in political 
 the states has already been described.' These same duties and munici-'" 
 the same necessity exist in cities. The municipal government P^^iti^s 
 cannot be carried on without political action, and in all but 
 the very smallest cities this political action must be taken 
 
 iSee Bulletin No. 28 in Bulletins for the Massachusetts Constitutional 
 Convention, Vol. II, pp. 325-334. 
 
 "See pages 102-104. 
 
 ^See "Kalamazoo Tries Proportional Representation," in National 
 Municipal Review, Vol. VII, pp. 339-348; also W. E. Boynton, "Propor- 
 tional Representation in Ashtabuk," in National Municipal Review, 
 Vol. VI, pp. 87-90. 
 
 ■^See pages 46-48.
 
 404 STATE AND MUNICIPAL GOVERNMENT 
 
 through organized groups, or poHtical parties. The organiza- 
 tion of poHtical parties with their rings and bosses, their 
 methods of raising money, their legitimate and illegitimate 
 expenditures, and their all-pervasive influence, has also been 
 described.^ In fact, the most perfect examples of party organi- 
 zation are found in the cities. The questions for discussion in 
 this section deal not so much with the general problem of 
 parties and party organizations as with the identification of 
 municipal and state parties and the possibilities and methods 
 of separating them, 
 Should The power of the sovereign state of the United States is 
 
 parties^and distributed between the national and state governments. So, 
 state parties yyithin the States, the functions of state government are divided 
 
 be identical? ' ° 
 
 between the state itself and the cities. In order to insure the 
 harmonious working-out of any policy and its faithful adminis- 
 tration, it is necessary for the group favoring that policy to 
 dominate both state and municipal governments. The easiest 
 method of accomplishing this is by means of a political party 
 which shall be identical in the state legislature and in the city 
 councils. On the other hand, it is entirely obvious that there 
 are different questions to be solved by national, state, and 
 municipal governments. Sometimes these questions conflict ; 
 hence a single or identical party fails to give satisfaction. 
 Moreover, sad experience has shown that the interests of the 
 cities are too often treated as the spoils of the parties successful 
 in state affairs, and municipal home rule was designed to free 
 the city from too complete a subordination to the state. But 
 where identical parties and party organizations control both 
 the state and municipal elections, the promises of home rule 
 are often illusive. Three methods have been tried in order to 
 meet these evils : - 
 (i) Abolition The abolition of parties has been attempted in those cities 
 
 of parties , • i i , , .... 
 
 which have adopted nomination by the nonpartisan primary or 
 by petition and which have removed from the ballot all party 
 designations. Little can be said in favor of such radical action. 
 At their best, parties and party organizations are excellent 
 
 'Sec pages 56-60. 
 
 2Scc W. B. Munro, The Government of American Cities, pp. 155-161.
 
 THE CITY AS A POLITICAL UNIT 405 
 
 agents for the precipitation and expression of the popular will ; 
 at their worst, party organizations and political parties are 
 what the electorate allows them to become. The remedy or 
 reform is always in the hands of the voters. In municipal 
 politics the evil lies not so much in the existence of parties 
 for formulating views and selecting candidates for office as 
 in the subordination of the municipal to the national and 
 state parties. 
 
 At the other extreme is the effort to create strictly municipal (2) Munici- 
 
 , 1- r xi- • pal parties 
 
 parties. These parties endeavor to formulate a policy 01 their 
 own, to nominate their own candidates and, if successful, to 
 administer the affairs of the city according to their principles. 
 They aim to be genuine political parties, with the usual type 
 of party organization, and they try to fulfill all the functions 
 of a regular political party. It is obvious that such parties can 
 be organized only in the largest cities, and even there the 
 difficulties are great. Party organization is expensive and is 
 the growth of time and tradition. Groups must be trained to 
 act together and acquire a loyalty to a definite ideal which 
 seldom exists in purely municipal affairs. Important as are 
 the operations of municipal government, and vital as they are 
 to the well-being of the citizens, they seldom arouse that pas- 
 sionate attachment which is the characteristic of national and 
 state parties. It is true that in New York the Citizens' Union 
 in 1896 and in 191 7 attempted to run its candidate in opposi- 
 tion to those of the Democratic and Republican parties, but in 
 both instances it was unsuccessful, although in the former year 
 it polled more than 150,000 votes. In London, where there 
 are nominally municipal parties, the division is largely along 
 the lines of the national parties.^ The municipal field seems 
 narrow compared with the national. The most likely time for 
 the success in the formation of a purely municipal party is 
 after the domination of one of the state parties by a corrupt 
 political organization. At such a time a purely municipal 
 party may be organized in order to oust the former organi- 
 zation. It rarely happens, however, that strictly municipal 
 
 ^See W. B. Munro, The Government of European Cities, pp. 346- 
 347, and A. L. Lowell, The Government of England, Vol. II, p. 151.
 
 4o6 STATE AXD MUNICIPAL GOVERNMENT 
 
 parties have long lives. They may be effective in producing a 
 party revolution, but they are apt to distintegrate and break 
 up when faced with the continued problems of administering 
 the government. 
 (3) Fusion A more successful plan of combating the evils of state domi- 
 nation of parties is by "fusion." This is an attempt to get one 
 or both of the state parties to adopt in their platform the 
 program desired by the particular group in the city. A fusion 
 is brought about between one of the regular parties and a 
 group (or perhaps a bipartisan group) of insurgents, who may 
 force the leaders of one party to adopt their program and to 
 give to them a share of the candidates. This method has been 
 tried with success in many cities. A "citizens' ticket," a "citi- 
 zens' party," or, in 1901 and 1914, The Citizens' Union in 
 New York have been successful as the result of persuading 
 one of the state parties to accept their program. This method, 
 however, is based upon the supposition that there are a suf- 
 ficient number of independent voters to desert their regular 
 parties and vote for such fusion candidates and that there is a 
 political party willing to forego the advantages of a straight 
 party platform, candidate, and victory. 
 
 The Initiative, Referendum, and Recall 
 
 Direct The deviccs for direct legislation have already been fully 
 
 egis ion j^jgj,jjggg^j jj^ dealing with state government.^ It should be 
 remembered that such direct action was first attempted in 
 cities and towns rather than in states. Except in so far as the 
 ratification of state constitutions is concerned, from a very 
 early time the cities have been asked to express their approval 
 or disapproval of the charters framed by the legislature. More- 
 over, many laws have been submitted to the cities in order to 
 determine their local application, particularly with regard to 
 the control of the liquor traffic. This type of direct legislation 
 does not involve the decision regarding general law or the 
 adoption of a particular measure, but concerns rather the 
 application of a law which has been discussed, framed, and 
 
 'See Chaplcr \T.
 
 THE CITY AS A POLITICAL UNIT 407 
 
 adopted by the legislature. The true referendum has also been 
 used by cities on the question of incurring a debt or of the 
 extension of the debt limit, and even of granting certain fran- 
 chises. The adoption of the home-rule principle, moreover, as 
 applied in Ohio and Illinois, required a popular referendum on 
 all special laws applicable to the city ; but the greatest accel- 
 eration of this principle came from the use of the commission 
 form of government, in which there is a complete identification 
 of the legislative and executive function in municipal affairs, 
 thereby breaking down one of the most cherished checks and 
 balances in the American system of government. The com- 
 missions were extremely small, and it was therefore felt that . 
 too much power was put in the hands of a small group. To 
 meet this criticism the machinery of direct legislation has been 
 quite generally extended to the cities which have adopted 
 this plan.^ 
 
 In the cities of the Far West direct legislation has been Extent 
 freely used, perhaps not always wisely, but with considerable direct ^ 
 
 satisfaction. Moreover, it is significant that in the optional- legislation 
 
 ' o 'is used 
 
 charter system adopted by Massachusetts the initiative and 
 referendum were provided before the constitutional amend- 
 ment allowed it to be used for state issues. In fairness, however, 
 it may be said that as yet few cities in Massachusetts have 
 adopted any of the optional charters. Of the hundred or more 
 questions which have been submitted during the past years to 
 the voters of American cities, a large proportion deals with 
 proposed changes of municipal government or with franchises.- 
 
 The same arguments for and against the referendum in Effect 
 municipal affairs might be cited as have been discussed in tiative and 
 their use in state affairs. There is this difference: municipal '^fs''^"'^"™ 
 electorates, while not so homogeneous as the st^^te electorates, 
 have a certain homogeneity of interest ; that is, a referendum 
 applied to the state at large touches both rural and urban 
 populations, whose problems may be very different. Applied 
 to the city, the referendum affects but one type of population, 
 
 ^This is the so-called Des Moines plan, also adopted in 1907 by the 
 legislature of Ohio (see page 439). 
 
 ^See W. B. Munro, The Government of European Cities, p. 330.
 
 4o8 STATE AND MUNICIPAL GOVERNMENT 
 
 the urban, which presumably is more vitally interested in what 
 concerns it alone than in measures which are not so immediately 
 important to it. 
 
 The recau The recall as a means of direct control of government has 
 already been described, and the arguments for and against it 
 have been presented.^ It should be remembered that the recall 
 has been used chieliy in cities, — seldom has there been the re- 
 call of a state officer. In the past decade it has been invoked 
 successfully about eight times, but its use has been threatened 
 more frequently. In the few cases in which it has been em- 
 ployed, it has served to remove municipal officials who were 
 not satisfactory to the voters and has been successfully invoked 
 in states as diverse as California, Texas, and Massachusetts. 
 
 Effect of the Whatever may be the theoretical and practical arguments 
 
 newer forms . ,. , . , . . , ,, , , . ^ , 
 
 of city gov- agamst direct legislation and the recall, the adoption of the 
 ernment commission and city-manager forms of government has in- 
 creased the demand for immediate popular control of munici- 
 pal officials and policy. This is not to be wondered at, since 
 these types of government concentrate wide powers in the 
 hands of a few men. The experience with the traditional 
 working of the electoral system and the operation of parties is 
 not such that the voters are yet ready to intrust their elected 
 officers entirely and completely with these new powers. More- 
 over, the tendency to increase the length of terms of councils 
 and officials makes it seem desirable to give the voters an 
 opportunity to remedy the errors of election which have been 
 disclosed in administration. Whether these arguments are 
 theoretically valid is not the question. The possibility of using 
 direct legislation and the recall has been the price which has 
 been paid for the newer forms of city government. It is to be 
 hoped that the increased responsibility and power will result 
 in the choice of councils and officials which will make the use 
 of these agencies unnecessary, 
 
 ^See pages 126-128.
 
 CHAPTER XXIII 
 
 TYPES OF MUNICIPAL ORGANIZATION— THE 
 MAYOR-AND-COUNCIL TYPE 
 
 At present there are three distinct varieties of municipal varieties of 
 government in operation in the United States. The oldest and wganizatlon 
 by far the most common is the mayor-and-council type. Orig- 
 inally all the municipalities in the United States were governed 
 by some variety of this type of organization. At the end of 
 the nineteenth century, however, the attempt to eradicate some 
 of the most serious evils in municipal government led to the 
 adoption of an entirely different form of municipal organiza- 
 tion. This was the commission type of government, which was 
 adopted first by the city of Galveston in 1901. Many benefits 
 resulted from this change of form, but it was realized that 
 there were certain inconsistencies in the plan, and there fol- 
 lowed still another type of organization, the city-manager type, 
 which has been put into operation with extraordinary success 
 in many of the small and middle-sized cities of the country. 
 
 The City Council 
 
 The earliest American cities adopted the English type of History 
 government. In this the council was the central organ. ^ The counci" ^ 
 government of the colonial borough, as has been pointed out, Borough 
 
 1 • -11 1-111 rr^i • councils in 
 
 was vested m a council chosen directly by the voters. This the colonies 
 council in turn elected a certain number of aldermen, usually 
 six or eight, as well as the city officials. The mayor, the alder- 
 men, and the council sat as one body, framed the ordinances, 
 
 ^See W. B. Munro, The Government of American Cities, chap, viii, 
 with references. Also J. A. Fairlie, Municipal Administration, chap, xvii, 
 and Goodnow and Bates, Municipal Government, chap, ix, with additional 
 references. 
 
 409
 
 4IO STATE AND MUNICIPAL GOVERNMENT 
 
 spent the city taxes, and attended to the small administrative 
 duties which were then performed by the city. The adoption 
 of the first state constitutions, and more particularly of the 
 Federal Constitution, influenced the framework of municipal 
 government. Following the federal analogy, many of the city 
 councils became bicameral ; aldermen and councilors alike 
 were chosen by popular vote ; the mayor was also popularly 
 elected and, like the president of the United States, was given 
 the veto power. As the cities undertook more and fresh admin- 
 istrative functions, these were performed by committees of 
 the council. About the middle of the nineteenth century the 
 city council was the central and dominating factor in municipal 
 government. It was the city legislature which, by its ordi- 
 nance power, determined the activities of the city, and through 
 its committees it also actually performed or supervised the 
 increasing administrative functions. 
 Decline From 1850 on the importance of the city council has steadily 
 
 counci" ^ declined. In the first place, the character and ability of the 
 members of city councils everywhere has seemed to deteriorate. 
 The committees had too much work to do and were ill fitted 
 to perform the work they attempted. Partisanship and the 
 spoils system diminished the little efficiency possessed by the 
 councils. Appeals made to the state authorities for relief were 
 answered by reducing the administrative powers of the city 
 council. The functions which it had attempted to exercise 
 were taken away and given to the mayor or to officials or to 
 boards chosen by popular vote, or, in some instances, to state- 
 appointed authorities. The result was that during the last 
 half of the nineteenth century the city council fell from its 
 dominating position to that of a subordinate legislative author- 
 ity whose chief duty was to pass local by-laws and make 
 appropriations. The reaction against state interference and 
 the demand for home rule did not tend to restore the city 
 council to its former position. On the contrary, the powers 
 of the mayor have steadily grown at the expense of the city 
 council, and if functions which were at one time exercised by 
 state-appointed officials were returned to the city, they were 
 returned to boards or officials appointed by the mayor.
 
 THE MAYOR AND COUNCIL 411 
 
 It is impossible to generalize about the organization of the organiza- 
 city councils. Not only does the practice vary in the different city council 
 states, but within the same state different types of organiza- 
 tions are found. Originally the majority of the cities, follow- 
 ing the federal analogy, were governed by a bicameral council. 
 The movement has been steadily away from this, until today 
 less than a third of the cities have that form of government. 
 Of the ten largest cities of the United States, only Baltimore 
 retains the bicameral system. 
 
 The chief advantage claimed for the bicameral system is Advantages 
 that one chamber acts as a check upon the other and prevents vanta'^s 
 hasty or ill-considered legislation. Experience does not bear ^J. ^^^ <='^y 
 
 -^ o I- bicameral 
 
 out this theoretical claim ; since both chambers represent prac- system 
 tically the same class of voters and often the same territorial 
 unit there is little difference between them. Quite generally, 
 too, the same political party controls both chambers, and hence 
 the political check of divergent parties is ineffective. As a rule 
 the only difference is that through the longer terms of the 
 upper chamber a little more independence of popular opinion 
 may be assumed, although even this is not usually found true. 
 The bicameral system has not served its purpose in preventing 
 hasty legislation, but it has sometimes been effectually used 
 in causing delay and in extorting compromises. 
 
 When the city council is bicameral the upper or smaller Description 
 body is usually known as the board of aldermen and the lower council':*^ 
 or larger body as the common council. When the council con- (') ^^"^^ 
 sists of a single body it is commonly designated as the city 
 council, although in some cities it is called the board of alder- 
 men. The size of the council varies greatly. In New York (2) size 
 and Chicago the numbers are 73 and 70, respectively ; the 
 Boston council consists of but 9 members ; and San Francisco 
 has a council of 18. The terms for the members are always (3) Terms 
 short. In some cities where the bicameral system exists the 
 members of the upper council serve for four years and the 
 members of the lower for two. In general, the council mem- 
 bers are chosen for either two or four years (the shorter term 
 being the more common), while in New England annual 
 elections are still the rule.
 
 412 STATE AND MUNICIPAL GOVERNMENT 
 
 (4) The Almost everywhere any qualified voter may become a candi- 
 members ^^^^ ^^^ ^^^ ^j^^ council. In a few exceptional cities there 
 
 are special qualifications, but no city requires a special prop- 
 erty qualification. Membership in the council is regarded as 
 the lowest rung of the political ladder, and men without experi- 
 ence and often with little ability succeed in getting themselves 
 elected to this position. They are ordinarily loyal party mem- 
 bers, with inconsiderable business interests. An investigation 
 of the former common council in Boston showed that the total 
 sum which the members paid for taxes did not equal the annual 
 cost of a single city laborer.^ In some cities men of such cali- 
 ber furnish tempting opportunities for corruption, but as a rule 
 the American municipal government as evidenced by the city 
 council is not to be condemned so much for its corruption as 
 for its stupidity and inefficiency. 
 
 (5) Salaries Most citics pay the members of the city council. The salaries 
 
 vary from a few hundred dollars to the five thousand a year 
 paid in Philadelphia. A great many cities, however, pay 
 nothing at all. It cannot be said that payment improves the 
 caliber of council members, and some councilors are drawing 
 salaries from the city which they could not obtain from private 
 employers. Where there are no salaries private interests often 
 serve as an excuse for neglected city service and not infre- 
 quently lead the councilors to attempt to secure compensation 
 by roundabout and sometimes discreditable methods. 
 
 (6) Methods Members of city councils are elected in three ways — by wards, 
 of choice ^^ large, or by a combination of both. Election by wards is 
 
 most common. It is almost invariably followed for the lower 
 
 chamber of a bicameral council and quite generally used for a 
 
 single chamber. Boston and San Francisco are exceptions among 
 
 the large cities, and choose their councilmen on a general ticket. 
 
 Advantages The chief advantage claimed for the election of councilmen 
 
 advantages by wards is that all parts and classes in the city may be repre- 
 
 b* w^afds" sented. It is felt that each section of the city is entitled to a 
 
 representative on the council who shall be able to reflect the 
 
 ^W. H. Munro, The Government of American Cities, p. i8q. In one 
 New England city during one administration not a single member of 
 either board paid anything but the poll tax.
 
 THE MAYOR AND COUNCIL 413 
 
 local ideas and sentiments. Selection by wards, moreover, pre- 
 vents all the council from coming from one section of the city, 
 and for the most part it is successful in producing a bipartisan 
 body. On the other hand, experience has shown that election 
 by wards tends to subject the councilmen to the control of the 
 local ward organization. The phrase "a ward politician" is 
 one of opprobrium, and unfortunately ward politicians have too 
 frequently found their way into the city councils. Moreover, 
 anything which is good for a single ward of a city usually is 
 for the best interests of the entire city. Ward election too fre- 
 quently has resulted in council members overlooking the best 
 interests of the whole city and concentrating their efforts on 
 obtaining advantages for their own ward. 
 
 Election on a general ticket has many theoretical advan- Election 
 tages. In the days when the candidates were nominated by ^ ^"^^^ 
 the convention it was possible to distribute the nominations 
 among the various wards or districts of the city, and thus to 
 prevent any local organization from foisting on the city an 
 improper candidate. However, with the modern movement of 
 nominations by petition or primaries, these checks are not so 
 efficacious. Election on the general ticket is to be defended 
 upon the theory that the entire city is interested in the 
 character of each and every one of the council. 
 
 A combination of the two systems has been tried in some combina- 
 cities. The council members are nominated by wards and no°mination 
 chosen on a general ticket. This vests the final choice of the ^^^^g^g^joj, 
 council in the city at large and sometimes forces the ward at large 
 organization to nominate as candidates men who would be 
 acceptable not simply to their ward but to the city as a whole. 
 In small cities there are theoretical advantages for this method, 
 but in larger ones the strength of the political parties is so 
 great that the dominant party in the city will almost invariably 
 choose without hesitation the candidates nominated by the 
 local ward organizations of the party. 
 
 There is a great deal of similarity in the organization and 
 procedure of the city councils throughout the United States.^ 
 
 iSee Eugene McQuillin, Law of Municipal Corporations, Vol. 11, 
 chap. xiii.
 
 414 STATE AND MUNICIPAL GOVERNMENT 
 
 organiza- In a few cities the mayor is the presiding officer of the city 
 procedure council ; in a few others the mayor is the presiding officer of 
 of municipal ^^le upper chamber or board of aldermen ; in a very few — New 
 
 councils ^^ -^ 
 
 York, for example — the president of the board of aldermen 
 is chosen by popular vote; elsewhere the presiding officer of 
 the city council is chosen by that body itself. This is ordi- 
 narily done as the result of a caucus of the newly elected 
 members and, where party discipline is effective, occurs at the 
 first meeting. Cases are not wanting, however, where the 
 organization of the council has been delayed through the in- 
 ability of its members to agree upon a presiding officer. The 
 usual term of the presiding officer is a single year, although 
 in many instances he serves for the life of the council. City 
 councils frame their rules for procedure, and it is customary 
 to adopt the rules of the previous year. In some cases, how- 
 ever, provisions for procedure, particularly with regard to 
 making appropriations and granting franchises, are embodied 
 in the city charter. Rules which the council adopts may be 
 and frequently are suspended, either by unanimous consent or 
 by a two-thirds vote of the council. Hence, little idea of the 
 actual working of the council can be gathered from a study of 
 the rules; for example, the requirement that every order shall 
 be given a reading at each of two meetings of the council is very 
 often suspended, and important measures are put through at a 
 single meeting with only a brief opportunity for discussion. 
 Council The committees of the council are the real working elements 
 
 commi jn it. In large cities these committees may number thirty or 
 
 forty and vary in importance from the committees in charge 
 of the highways, finance, and lighting to that in charge of the 
 graves of soldiers. Probably not more than half of them are 
 of vital importance and many, though charged with important 
 matters, have merely nominal functions, as, for e.xample, the 
 committees on statistics or the sinking funds. Where the city 
 council is a bicameral body joint committees are chosen con- 
 sisting of members from each body. Along with these joint 
 committees, each chamber may choose committees of its own. 
 Method of Council committees are generally appointed by the prcsid- 
 nig (jflicer. Smce there is great desire to serve on important
 
 THE MAYOR AND COUNCIL 415 
 
 committees, the presiding officer often pays his election obHga- 
 tions by committee appointments. Thus it may happen that im- 
 portant committees are composed not of men specially fitted for 
 the work they are called upon to perform, but of men possess- 
 ing political influence. Since, moreover, the terms of the coun- 
 cilmen are not long and the term of the presiding officer often 
 still shorter, the composition of the important committees is 
 subject to frequent changes. This is in direct contrast to the 
 custom in England, where the tenure of service in the council 
 is long and the service of committees is tiot infrequently con- 
 tinuous. Thus, in Glasgow it was found that seven committee- 
 men had served for fifteen years on their respective committees 
 — two for eighteen years, two for twenty, three for twenty-one, 
 and three for twenty-five years.^ This long service upon com- 
 mittees tends to give the members an expert knowledge of their 
 duties which is impossible under the American system. As a 
 result, in England the recommendations of the standing com- 
 mittees are practically always followed, while in the United 
 States so little confidence is placed in these recommendations 
 that they are frequently subject to amendment or rejection. 
 
 The powers of the city councils in the United States vary so powers of 
 much from state to state and even between cities in the same coum;ii^ 
 state that it is impossible to make a comprehensive summary. 
 These powers are derived, as has been seen, from the charter 
 granted to the city, which charter may be either a general or 
 a special charter framed for the individual community. The 
 charter powers themselves are subject to frequent amendment 
 as a result of special legislation, either asked for by the city 
 or superimposed on the particular city by the legislature. 
 Finally, moreover, certain general state laws apply to all cities 
 alike. In general, however, while the powers of the city coun- 
 cils have been steadily declining, such as remain may perhaps 
 be classified as legislative and administrative. 
 
 The city council may legislate on such matters dealing with (i) Legisia- 
 the structure and form of the city government as are not cov- (aJVenTr"f 
 ered by the city charter or general statutes, but this field is not powers 
 large, for the attempt is often made by the state authorities 
 ^See Goodnow and Bates, Municipal Government, p. 216.
 
 41 6 STATE AND MUNICIPAL GOVERNMENT 
 
 (6) Police 
 power 
 
 (c) Finan- 
 cial power 
 
 to cover these matters thoroughly. The council, however, by 
 ordinance, may in certain instances provide for the selection 
 of minor officials and fix the compensation both of these and, 
 in many instances, of the officials prescribed by the charter. 
 The city council exercises a limited police power through 
 the passage of ordinances. They may make rules concerning 
 traffic and the establishment of fire limits, building laws, sani- 
 tary, health, and plumbing regulations, and, in a narrower field 
 dealing with the morals of the citizens, such regulations as those 
 concerning dance halls, the curfew, parks, and playgrounds. In 
 this field, however, the powers of the city council are being con- 
 stantly diminished. In the first place, more and more of these 
 matters are regulated by general state laws, and, second, the 
 power to make them is being taken from the city government 
 and given to administrative boards — thus the regulation of 
 traffic may be given to the street commissioners or to the police, 
 the sanitary or health regulations to the board of health, and so on. 
 The financial power of the city council is still large. Very 
 often the city council determines the tax rate, although it does 
 not decide what property shall be taxed. Even this power is 
 
 [Appropria- limited by the power of the council to make appropriations. 
 
 tions] Theoretically, the city council makes the appropriations; 
 
 actually, however, there are many restrictions upon this power. 
 In some cities the appropriations are gathered together in a 
 budget, which is prepared either by the mayor or by some 
 special committee. The city council in many cases is limited 
 in its consideration of the budget to decreasing the appropria- 
 tions asked for. It may not insert new appropriations nor 
 increase those already called for. In some cities, moreover, 
 the power to decrease the budget is subject to limitations: in 
 New York City changes can be made against the approval of 
 the mayor only by a three-fourths vote. However, in the 
 majority of cities the city council is allowed both (o increase 
 and to decrease the mayor's estimates and thus, necessarily 
 through the making of the appropriations, to determine the 
 tax rate.' The city council is the decisive factor in borrowing 
 
 1 See page 541 ; also W. B. Munrn, Principles and Methods of Municipal 
 Administration, pp. 446-453.
 
 THE MAYOR AND COUNCIL 417 
 
 money. All loans, whether temporary or permanent, have to [Loans] 
 be passed upon by the council. It is true that this power is 
 restricted by state statutes and that the city cannot borrow 
 money for purposes which are forbidden or not specifically 
 granted to it. In most states, moreover, there are debt limits 
 beyond which the city council may not go. Furthermore, many 
 states give to certain municipal bodies the right to issue bonds 
 for special purposes ; thus the sewer commissioners, water 
 boards, and park commissioners are frequently given the right 
 to issue bonds without consulting the city council. In spite of 
 these limitations the power of the city council in finance is 
 large. No appropriations can be made without its vote, and as 
 a rule no debt can be incurred without its consent. 
 
 The city councils originally had unlimited power to grant (d) Fran- 
 franchises, but this has proved such a fertile field of corruption 
 that as a rule it is now limited, particularly in the case of 
 franchises to street railroads for the use of the streets and 
 highways. In some cities a popular referendum is required, 
 and in others it may be invoked by petition. Moreover, the 
 power of the city government is limited by constitutional and 
 statutory provisions which prevent the grant of permanent 
 franchises and not infrequently specify the terms of a fran- 
 chise. In the field of the public utilities which are actually 
 operated by the city, such as the water and sewer systems and, 
 in some cases, gas and electricity, the city council sometimes 
 possesses the power to regulate such matters by ordinance. 
 For the most part, however, the actual control of these services 
 is under some administrative board which operates more or less 
 independently of the city council. 
 
 The city councils exercise a rather wide miscellaneous legis- (e) Mis- 
 lative power. Examples of this are found in the location of 
 public buildings and parks and the utilization of the permissive 
 powers granted to the city by the charter. In general the 
 legislative powers of the city councils are decreasing in impor- 
 tance; more and more functions are taken over by state 
 authorities or exercised by administrative boards. Neverthe- 
 less the ordinances of any city constitute a bulky and bewilder- 
 ing collection. They are constantly being revised and amended
 
 istrative 
 powers 
 
 418 STATE AND MUNICIPAL GOVERNMENT 
 
 and are seldom completely understood except by the officers 
 charged with their execution. 
 (2) Admin- Theoretically the city council ought not to exercise adminis- 
 trative powers. Consistent with the federal analogy, which 
 had been the model of the American city government, the ad- 
 ministrative functions should be exercised by the city executive. 
 Nevertheless many city councils exercise a good deal of ad- 
 ministrative power by charter and, through the play of politics, 
 wield considerably more. Many cities, both large and small, 
 still give to the city council the appointment of certain officers ; 
 in more the nominations of the mayor require the confirmation 
 of the city council or, in the bicameral system, of the upper 
 board. Wherever the power of appointment exists the city 
 council exercises a certain control over the administration and 
 certain administrative powers as well. In some instances the 
 city council has the right to approve all contracts, and most 
 city councils may require reports from the administrative 
 departments and may investigate them. This enumeration of 
 the legal administrative powers of the council gives an inade- 
 quate idea of the position it actually plays in municipal admin- 
 istration. Although its powers in administration may be 
 limited, the influence of the members of the council is great. 
 Since all departments require appropriations and are dependent 
 for one thing or another upon the activities of the council, the 
 individual members rather often acquire great influence in 
 the administrative departments in return for their support. The 
 patronage of some departments is put at the disposal of groups * 
 of councilmen, and the departments themselves may be oper- 
 ated not for the efficiency of the service but to further the 
 political fortunes of individual councilors, 
 mnuenceof In most American cities the city council legally has a minor 
 council position, but practically, through the operation of politics, its 
 influence is far-reaching. This influence, however, has not 
 made for efflciency or good government. Consequently the 
 tendency since the middle of the nineteenth century has been 
 to decrease the powers of the city council and to extend those 
 of the executive. Only in the commission form of government.
 
 THE MAYOR AND COUNCIL 419 
 
 where the principle of separation of powers has been ignored, 
 is there any tendency toward increasing the legal position and 
 influence of the council. 
 
 The Mayor 
 
 The position occupied by the mayor in American municipal Development 
 administration is unique/ It is the result of development and of mayor 
 of the attempt to remedy the evils and inefiicient administra- 
 tion under the councilor system. During the colonial period the 
 mayor, like his English predecessor, was merely the presiding 
 officer of the council ; he was chosen by the council and, along 
 with the aldermen, met with the council ; he had no veto power 
 and few if any administrative powers and he was in no sense 
 of the word an independent administrative officer.^ The adop- 
 tion of the Federal Constitution and the revision of the early 
 state constitutions, with the express or implied separation of 
 powers, led to a change in the position of the mayor. As has 
 been shown, the city charters of the late eighteenth and early 
 nineteenth centuries provide for a mayor chosen by popular 
 vote rather than by the city council.^ In some charters the 
 mayor was given certain powers of appointment, subject, how- 
 ever, to the confirmation of the aldermen,* but in no instance 
 was he given the veto power. Thus, until the middle of the 
 nineteenth century the mayor was rather the equal of the 
 council and not the dominating factor in city government. 
 
 iThe best brief recent account of the office of mayor in the United 
 States is given by W. B. Munro, The Government of American Cities 
 (3d ed.), chap. ix. Other brief accounts are by Goodnow and Bates, 
 Municipal Administration, chap, ix, and J. A. Fairlie, Municipal Admin- 
 istration, chap. xix. A detailed study of the office of mayor is contained 
 in "The American Municipal Executive," by R. M. Story, University of 
 Illinois Studies in the Social Sciences, Vol. VII, No. 3. 
 
 2 For the position of the mayor in colonial times see page 360; a'so 
 J. A. Fairlie, Essays in Municipal Ad-.7i:n:s'.rat:on. pp. 68-6g, and 
 R. M. Story, "The American Municipal Executive," University of Illinois 
 Studies in the Social Sciences, Vol. VIII, No. 3, pp. 21-23. 
 
 3 In Baltimore in 1796 the federal analogy was pushed to the extreme 
 and the mayor was chosen by a miniature electoral college. 
 
 *Boston, 1796.
 
 420 STATE AND MUNICIPAL GOVERNMENT 
 
 Since 1850 the council has lost power. The reasons for this 
 have already been discussed.^ Ultimately almost all of the 
 powers which the council lost were transferred to the mayor, 
 although this transfer did not take place immediately. Some 
 of the powers which the council had failed to exercise efficiently 
 were transferred directly to state authorities; for example, the 
 police administration of Baltimore in i860 and of Chicago in 
 1861. In 1865 the state took over the control of fire protec- 
 tion, public health, and licensing in New York City and vested 
 them in state boards. As has been seen, a reaction against 
 state administration soon set in, and for the most part the 
 administrative powers which were exercised by state officials 
 were transferred to officials or boards appointed by the mayor. 
 In some cases the powers of the council were given to popularly 
 elected officials. It was soon found, however, that popular 
 election was not a satisfactory method of choosing administra- 
 tive experts, and in a great many cities the mayor was the 
 recipient of the power to appoint these subordinate administra- 
 tors. Toward the end of the nineteenth century the power of 
 the mayor increased with great rapidity. Some of the largest 
 cities — New York- for example — took away from the council 
 the power of confirming the nominations of the mayor, thus 
 making him practically independent in administration. The 
 mayor also gained great powers in finance. In many cities he 
 was given the right to frame a budget which could not be 
 increased by the action of the council and, in some cities, could 
 not be decreased except by an extraordinary majority. Many 
 municipalities accorded to the mayor more and more power 
 in awarding contracts. His term was lengthened and his salary 
 increased. Thus, in some cities the mayor became the domi- 
 nant factor in municipal government. But this development 
 was by no means uniform throughout the United States: in 
 many cities, and those not the smallest, the council was still 
 very powerful ; in others — perhaps a majority of the middle- 
 sized ones — the council and the mayor shared the responsibility 
 and functions of government. Still the tendency at the end of 
 
 *Sce papcs 367-369, 370. 
 
 2This movement began in Brooklyn in 1882.
 
 THE MAYOR AND COUNCIL 421 
 
 the nineteenth century was toward a "strong" mayor, able to 
 dominate all features of city government. This tendency, how- 
 ever, was sharply checked by the development of the newer 
 types of municipal government — the mayor-and-commission 
 and the city-manager plan. It is true that neither of these 
 forms has been adopted by many of the cities of the first rank, 
 and in them the ''strong" mayor is still the rule. Nevertheless, 
 in an increasing number of small and middle-sized cities either 
 the commission or the city-manager plan has been adopted, 
 thus slightly checking the tendency toward the usual type 
 of a dominant city executive. 
 
 In practically all American cities the mayor is chosen by Method of 
 direct popular vote. Candidates for office are nominated and 
 elected according to the systems described for the selection of 
 other elective officials.^ A few cities, however, use the system 
 of nonpartisan primaries for the nomination of the mayor, and 
 some — for example, Boston — require that the mayor shall be 
 nominated by petition. As a rule the election is by plurality 
 vote ; a very few cities require a majority, and some have 
 adopted the system of preferential voting.- 
 
 The usual term of office for the mayor is two years, although Term 
 this rule is by no means uniform either in a single state or 
 throughout the country. In New England, except for Boston, 
 the greater number of cities elect their mayors annually. Some 
 of the largest cities in the United States have adopted a four- 
 year term.^ A few municipalities give the mayor a three-year 
 term, and still fewer a five-year term. The general tendency 
 is toward increasing his term of office. Practically everywhere 
 the mayor is eligible for immediate reelection,'* and wjiere the 
 terms are short he has almost a prescriptive right to renomina- 
 tion. In the larger cities the executive functions of the mayor 
 are so complicated that the incumbents are likely to spend the 
 first year or more in acquainting themselves with their duties 
 
 iSee Chapter V. 
 2 See pages 101-102, 402. 
 
 3 Baltimore, Boston, Chicago, New York, Philadelphia, and St. Louis. 
 ■*In Boston and Philadelphia, where the term is four years, the mayor 
 is not eligible for immediate reelection.
 
 422 STATE AND MUNICIPAL GOVERNMENT 
 
 and in initiating their policies. Where the term is two years 
 the time is so short that the executives have little opportunity 
 to show the voters the results of their policy. Consequently 
 the voters are generally asked to give the mayor another term 
 in order that he may carry out and complete his plans. Thus, 
 during the second year of a two-year term the mayor is not in- 
 frequently busy planning for his reelection to the detriment of 
 his administration. A four-year term gives a mayor the chance 
 not only to initiate but to bring his policies to fruition ; it 
 enables him to correct some of the inevitable mistakes he may 
 make during his first year and to come before the voters for 
 reelection with a record of accomplishment for good or evil.^ 
 It is sometimes held that a four-year term is a severe penalty 
 for an unwise selection ; that the voters may have been stam- 
 peded in their choice. It has sometimes happened that skill- 
 fully manipulated public opinion has denied reelection to an 
 excellent official and placed in office for a long term an inex- 
 perienced and inefficient administrator. This danger may be 
 avoided in various ways : in New York State the mayors of 
 some cities may be removed by the governor as the result of 
 charges and a hearing ; in other states some of the various sys- 
 tems of recall which have been described are in effect.- On the 
 whole it would seem better to run the risk of making an unfor- 
 tunate choice for a long term, subject to the safeguards already 
 mentioned, than to compel every mayor to stand for reelection 
 at the end of short terms. 
 
 The one universal qualification is that the mayor must be a 
 qualified voter. Additional qualifications, however, are imposed 
 in some cities. Baltimore, San Francisco, and St. Louis require 
 Quaiifl- a five years' residence in the city ; some cities set a mini- 
 mum age-limit, and a few require a property qualification. 
 
 1 In England the term of the mayor is one year; in France, four 
 years; in Italy, three years; in (Germany the j^cneral rule is twelve years, 
 althouRh in some cases it is for life. See Goodnow and Bates, Municipal 
 Administration, p. 232. It should be remembered that in En^ikind the 
 mayor has little administrative power, this beini; exercised by the commit- 
 tees of the council, while in Germany the burgomaster is a professional 
 administrator i liiirRed with few political duties; hence the comparative 
 length ol terms is of little importance. -See pages 126-128. 
 
 cations
 
 THE MAYOR AND COUNCIL 423 
 
 But no city exacts any professional qualifications or past expe- 
 rience in administration in municipal affairs.^ 
 
 In nearly all the cities in the United States except the very 
 smallest the mayor is paid an annual salary. This stipend may 
 be fixed by charter, but is usually determined by city ordi- 
 nance, with the provision that the salary may not be increased 
 during the term of office of any incumbent. The salaries paid 
 the American mayors vary from Si 000 or less in the smaller 
 cities to $18,000 in Chicago." As compared with the English 
 cities (where the mayors receive no salaries but are given allow- 
 ances for actual expenses) and the German cities (where the 
 burgomasters are considered to be well paid), the American 
 cities are generous, but this generosity neither insures the same 
 type of executive nor is adequate for the expenses the Ameri- 
 can mayor incurs. Whatever salary is paid to the mayor the 
 demands upon him are usually greater than his stipend. Some 
 of these demands, like the entertainment of guests of the city, 
 should be met by the city. The majority of his expenses, how- 
 ever, are connected with the political rather than with the 
 legally required duties of his office. In most cities the mayor 
 is a strong organization man and wins his election through the 
 activity of the organization. He consequently finds it to his 
 advantage, if he is not actually assessed, to contribute largely 
 to the funds of the party.^ 
 
 In order to win and maintain popularity the mayor must be 
 generous in his subscriptions to various organizations and in 
 his contributions to different societies. In addition he finds it 
 advantageous to acquire the reputation of being charitable and 
 ready to extend aid in needy cases. These demands on him 
 
 1 W. B. Munro, The Government of American Cities, p. 215. This is not 
 strictly the case in the mayor-commissioner under the commission form 
 of government in some cities, where, by a provision of the system, 
 professional qualities are sought. See pages 436-438. 
 
 2 New York pays $15,000; Philadelphia, $i2,coo; Boston, $10,000; 
 San Francisco, $6000. 
 
 ■"'Where there is an attempt to avoid party organizations the candi- 
 dates are obliged to contribute more generously. Thus the published 
 returns of a Boston election showed that the two leading candidates ex- 
 pended about $150,000 in addition to what was contributed by their sup- 
 porters. See W. B. Munro, The Government of American Cities, p. 219.
 
 424 STATE AND ]\IUXICIPAL G0\T:RN:\IENT 
 
 Character- 
 istics of 
 American 
 mayors 
 
 frequently greatly exceed his salary. It is not to be supposed 
 that this financial sacrifice on the part of most mayors is a 
 permanent one. In a few cases, perhaps, the mayor may recoup 
 himself in corrupt ways, but more often he seeks compensation 
 through the prominence and advertising which his position 
 gives him. As chief executive of a city he becomes well known, 
 and if he is a lawyer he attracts considerable practice. In other 
 fields as well his prominence is an asset. His term of service 
 in a large number of instances results in direct financial 
 profit, not because of corruption or absolutely illegal acts but 
 from a dubious blending of his private business with his 
 official functions. 
 
 American mayors are rarely professional administrators ; in 
 this respect they are in direct contrast to the German burgo- 
 master and to the city manager in the newest form of American 
 municipal government. Mayors in the United States are seldom 
 men of large business experience ; in this respect they are in 
 sharp contrast to the English mayors. Nor, like the English 
 mayors, are they men of large means. In fact, great wealth 
 and connections with big business are considered a handicap 
 for the candidacy of any mayor. American mayors are, pri- 
 marily, politicians ; ordinarily, faithful members of the party 
 organization. They have seldom held any other political of- 
 fice; indeed, previous administrative service in either state or 
 municipal affairs is, like wealth, a handicap. Although there 
 are notable exceptions to this, yet experience has shown that 
 previous service generally gives a man a "record." While this 
 record may be good he will have been obliged to offend cer- 
 tain influential politicians who may oppose and thwart his 
 ambition. The American mayoralty is not a stepping-stone 
 to higher political office. There are, it is true, many excep- 
 tions to this statement, but as a rule the office of mayor is 
 generally the first and last official position which the incumbent 
 occupies. 
 
 In spite of the theory of the separation of departments the 
 mayors of American cities possess certain legislative powers. 
 The first of these — the power to recommend legislation — is 
 generally exercised in two ways. On taking office the mayor
 
 THE MAYOR AND COUNCIL 425 
 
 in his inaugural address frequently outlines the program he Legislative 
 
 , , . , ,, If • i powers of 
 
 expects and desires to have put through, bince, in most cases, the mayor: 
 the mayor and the city council are of the same political party Jj^'om^mend" 
 and products of the same political organization, the mayor's action 
 inaugural may come to be the program of the party and thus 
 is often favorably acted upon by his party majority in the 
 council. A second way in v/hich the mayor recommends action 
 is by means of special messages to the council. These messages 
 may be delivered in the form of a personal address or as a 
 written communication. They are effective in proportion to 
 the mayor's influence upon the council. This, in turn, depends 
 upon his standing in the organization and the extent to which 
 the leader controls the councilmen. Where the mayor and 
 council are of opposite parties neither the mayor's inaugural 
 nor his special messages receive much consideration. 
 
 The strongest weapon which the mayor has is the right to (2) veto 
 veto the action of the council. Originally this did not belong ^"^^"^ 
 to mayors in the United States nor is it possessed by any 
 municipal executive in England or on the Continent. The veto 
 power is a distinctly American institution. According to prac- 
 tically all city charters no ordinance or action of the council 
 becomes binding unless signed by the mayor. The mayor's 
 veto consists in returning to the body in which it originated 
 any ordinance or resolution without his approval. If the 
 majority of the council repasses the ordinance or order in spite 
 of the mayor's objection, it becomes valid without his signature. 
 Most city charters require an extraordinary majority to over- 
 ride the mayor's veto — in general, two thirds; but San Fran- 
 cisco require seven ninths, and in Boston the disapproval of 
 the mayor is final. 
 
 The executive veto was adopted in the Federal Constitution [Merits of 
 
 ,., .. ^, . ,,. J. ,, the mayor's 
 
 and in the constitutions of the various states in order to protect ^eto] 
 the executive from encroachment by the legislature. As such 
 it has been effective. On the whole, it has been used sparingly 
 and wisely in state and national affairs and is almost uni- 
 versally regarded as a safeguard against extravagant or unwise 
 action by legislative bodies. Following the federal analogy, it 
 was carried over to municipal government in the nineteenth
 
 42 6 STATE AND MUNICIPAL G0VERN:\IENT 
 
 century, where it cannot be defended on the same grounds.^ 
 The legislative functions of the city government are not com- 
 plete and final in themselves ; above and beyond the city is 
 the state legislature, which by law may enact measures for the 
 city or repeal action taken by it. The city executive, more- 
 over, in the last sixty years has not needed protection against 
 the city council, and in fact the mayor has dominated the 
 legislative branch. Whether this be for the advantage or dis- 
 advantage of good government the veto has too often been 
 used as an instrument of political juggling. The council has 
 evaded responsibility, trusting to the mayor to veto its act, and 
 the mayor, by refusing to exercise this veto power, has tried 
 to shift the responsibility to the council. Moreover, instances 
 are not wanting in which the mayor has compelled the council 
 to confirm bad appointments through the threat of vetoing a 
 measure in which it was vitally interested. Yet in spite of these 
 criticisms the mayor's veto has often made for economy and 
 prevented foolish and harmful legislation. It is true that under 
 the commission form of government the veto has been aban- 
 doned, but government by a commission, as will be seen, pre- 
 sents very different problems from the mayor-and-council type. 
 The commission is both the executive and the legislature. As 
 long as the system of the separation of the executive and legis- 
 lative departments remains, even in its faulty present form, 
 there seems to be a legitimate place for the veto of the mayor. 
 (3) Finan- In many cities, although perhaps not in most, the mayor 
 initiates appropriations. Originally the finance committee of 
 the city council, as in the English boroughs, prepared the bud- 
 get. This proved unfortunate in American cities, for the coun- 
 cil members attempted to pad the budget for the benefit of 
 their wards and constituencies and had little regard for the 
 wider interests of the city or for economy and sound finance. 
 In many American cities today the mayor is given the sole 
 authority to prepare the budget ; that is, to receive the esti- 
 mates of the various departments and to recommend the 
 amount which the city council shall appropriate to each. In a 
 
 ^ For criticism of the mayor's veto power see W. B. Munro, The Gov- 
 ernment of American Cities, pp. 225-226. 
 
 cial powers
 
 THE MAYOR AND COUNCIL 427 
 
 large number of these cities the council is prohibited from 
 increasing the suggested amounts or from inserting new appro- 
 priations, but it may reduce the amounts recommended.^ In The Boston 
 Boston the mayor has the undivided responsibility of preparing ^^^° 
 and submitting the budget. The council may reduce or omit 
 any item, but may not increase any suggested appropriation 
 nor insert new ones. In New York the preparation of the The New 
 
 ,.,,.. , . ^ York plan 
 
 budget is vested in a board of estimate and apportionment, 
 which consists of the mayor, the comptroller, the president of 
 the board of aldermen, and the five borough presidents. The 
 board of aldermen, to whom the budget is then submitted, can 
 make no changes except to decrease the appropriations called 
 for, and even these changes are subject to the veto of the 
 mayor, which can be overridden only by a three fourths' vote.- 
 
 The appointing power is one of the most important features Administra- 
 of authority of the mayor, and in many cities the most impor- (j^A^p^^fnt- 
 tant. In no American city does the mayor's appointing power i°s power 
 extend to all the city officials, for some of these are still elected 
 by the city government or by the voters directly. Particularly 
 is this true with regard to the officers intrusted with the admin- 
 istration of finance, like the city treasurer or the comptroller. 
 The great majority of administrative officials, however, obtain 
 their office as the result of nomination or appointment by the 
 mayor. Until the last decades of the nineteenth century con- 
 firmation by the city council, or one body of the city council, 
 was necessary in order to consummate the appointment of the 
 mayor. This was only another example of the slavish following 
 of the federal analogy. Beginning with Brooklyn in 1882, the 
 experiment was tried of giving the mayor the absolute power of 
 appointment. This has rapidly spread and has become the custom 
 in many, although not in the majority, of the American cities. 
 
 The theory of requiring aldermanic confirmation rested not Merits of 
 simply on the desire to copy the federal system, but on a confirSon 
 genuine fear that the municipal executive could not be trusted 
 to make appointments unchecked by the representatives of the 
 voters. It was felt that aldermanic confirmation would prevent 
 
 iSee page 541. For fuller treatment see also W. B. INiunro, Principles 
 and Methods of Municipal Administration, pp. 445-453- ^See page 546.
 
 42 8 STATE AND MUNICIPAL GOVERNMENT 
 
 The Boston 
 plan 
 
 Removals 
 from office 
 
 partisan or bad appointments. Such, however, has not been 
 the case. Aldermanic confirmation has too often been used as 
 an excuse to avoid responsibihty. The mayor has claimed that 
 he "appointed as good men as the aldermen would confirm, and 
 the aldermen that they were obliged to confirm the mayor's 
 appointees. Moreover, the system has led to trading and log- 
 rolling by which the mayor buys the support of the aldermen 
 with the patronage at his disposal. 
 
 The amendments to the Boston Charter in 1909 gave to 
 the state civil-service commission the power of passing upon 
 the mayor's appointments. No aldermanic confirmation was re- 
 quired, but the mayor was obliged to certify to the commission 
 that his nominee was a ''recognized expert in the work which 
 will devolve upon him" or "a person specially fitted by educa- 
 tion, training, or experience to perform the duties" of the 
 office. On receiving such information the commission investi- 
 gates the mayor's appointee, and unless it is satisfied that the 
 appointee fulfills the conditions the mayor's appointment lapses 
 on the expiration of thirty days and a new nomination must be 
 made. This system is obviously an invasion of the principle of 
 municipal home rule, for it gives to a state-appointed body, 
 which is not under the control of the municipality, the power 
 to reject the nominations of the municipal executive. Never- 
 theless, in its actual working the system has much to commend 
 it. It must be admitted that a great deal depends upon the 
 liberality with which the commission interprets the words 
 "recognized expert." As it has been applied in the case of 
 Boston, it has restricted the freedom only of the spoilsmen, 
 and a mayor at all interested in appointing even moderately 
 efficient administrators has met with no difficulty. On the 
 whole the Boston plan has much to commend it.^ 
 
 Where officials are appointed by the mayor without the 
 confirmation of the city council or board of aldermen, the 
 mayor as a rule may remove his appointees without assigning 
 cause. In some cities, however, after an officer appointed 
 by the mayor has held office for a certain length of time, he 
 
 'For a fiillcT discussion of Iho Boston plan see W. B. Munro, The 
 Government <it Ameriran Cities, pp. 230-233, 435-436.
 
 THE MAYOR AND COUNCIL 429 
 
 may not be removed except as the result of a hearing. But 
 where the mayor's appointment is subject to coniirmation by a 
 board of aldermen, the officer may not be removed without 
 the consent of the concurring body. Accordingly the mayor 
 finds himself in such cases merely the nominal director of the 
 administration for which he is held responsible. 
 
 The American mayor has a great many miscellaneous powers Misceiiane- 
 and functions which vary with the charters of the different ouh^mayor 
 cities. As a rule he is intrusted with supervision over all the 
 departments, although where he is not given the power to 
 appoint and remove the department officials this power is of 
 little avail. In some cities he is given the right to receive 
 reports and inspect the accounts of the city officials, but with- 
 out the power to compel certain actions this right amounts to 
 very little. He may call out the militia in some cities and 
 occasionally may pardon offenders sentenced at the municipal 
 court. In many cities he is a magistrate, and sometimes he 
 actually exercises these judicial functions. He often represents 
 the city at legislative hearings and in some states may express 
 his approval or disapproval of legislation affecting the city. 
 
 Today, in cities using the mayor-and-council type of govern- present 
 ment, the mayor is the dominating factor in the situation. His \l^^ '°° ° 
 powers have steadily increased, his duties have multiplied, and 
 his responsibility has become very direct. Whatever failures 
 and inefficiencies are found in municipal governments of the 
 mayor-and-council plan they are not due to lack of power on 
 the part of the mayor. So much authority has been given the 
 mayor in some of our largest cities that he may, as did ex- 
 Mayor Mitchel of New York, institute and carry through exten- 
 sive municipal reforms and establish an enviable record for 
 efficient municipal administration. In so doing, however, a 
 mayor may be forced to override and ignore the popular and 
 democratic element in the city government. He thus lays him- 
 self open to the charge of establishing a one-man power. This 
 may bring about such a change of sentiment that the excellences 
 of his administration — based as it is on the executive power 
 — may be reversed and discarded where an admittedly less 
 efficient but more popular administration would be continued. 
 
 mayor
 
 CHAPTER XXIV 
 
 TYPES OF MUNICIPAL ORGAXIZATIOX— CITY 
 GOVERNMENT BY A COMMISSION 
 
 Principles of City government by a commission rests upon the theory of 
 sfon'f^'of the fusion of the legislative and administrative functions. In 
 government ^.j^g gygtem of government just described — that of the mayor 
 and council — the principle of the separation of the powers of 
 government was the underlying feature. The influence of the 
 Federal Constitution and the constitutions of the various states 
 in framing the organs of government and in the distribution of 
 their powers was everywhere seen. City government by a com- 
 mission abandons this theory and analogy and rests upon the 
 principle that in municipal administration there is no need for 
 a division of power or for the checks and balances which are 
 so cunningly devised for the national and state governments. 
 It starts with the assumption that the greater part of the func- 
 tions of municipal government deals with problems of execution 
 and administration and not with legislation. Briefly, commis- 
 sion government abolishes the legislative organs of the city and 
 vests all the legislative functions in an administrative council 
 or group of heads of administrative departments. Although it 
 is a radical departure from the systems of national and state 
 government, it is an adaptation of the principles and methods 
 of county government. 
 
 The application of commission government to cities was the 
 result of a disaster.' In September, 1900, a large portion of 
 
 iThc material on commission Rovcrnmcnt is copious. Detailed refer- 
 ences to this may be found in W. B. Munro"s "Bibliography of Municipal 
 Government." There is an excellent discussion of this system in "The 
 Government of American Cities" (.^d ed.), chap, xii, by the same author, 
 which Rives some of the more recent and important references. Esjwcial 
 attention should be called to Bulletin No. 12, "Commission Government 
 in .American Cities," in the Bulletins for the Massachusetts Constitutional 
 
 430
 
 GOVERNMENT BY COMMISSION 431 
 
 the city of Galveston, Texas, was destroyed by a tidal wave, origin of 
 
 commissii 
 government 
 
 Under the old form of government by mayor and council Gal ^°""^>^^'°" 
 
 veston had not prospered. The debts had rapidly increased, 
 and it was not uncommon to borrow money for current ex- 
 penses. The tax rate was high, and the citizens got little return 
 for their taxes. It was found almost impossible to borrow 
 money to rehabilitate the city except on rates of high interest, 
 and the governor of the state refused to allow public money to 
 be advanced to a municipality which showed such incapacity 
 in the management of its affairs. In this crisis a group of 
 citizens petitioned the legislature to put the city into what 
 amounted to a receivership. Consequently, on April 19, 1901, 
 the state legislature passed an act abolishing all the existing 
 organs of the city government and vesting their functions in a 
 commission of five men, three of whom should be appointed by 
 the governor and two elected by the citizens. It was held by 
 the Texas courts that this violated the constitutional provisions 
 of self-government, and the legislature in 1903 amended the act 
 by providing that all five commissioners should be elected by 
 the voters. Although the Galveston plan was adopted to meet spread of 
 
 . . , . the commis- 
 
 an emergency, its results were so satisfactory that it was sion idea 
 adopted by the city of Houston in 1905. During the next two 
 years no other city followed this example, but in 1907 the 
 legislature of Iowa passed an act allowing any city of more 
 than 25,000 to adopt the commission form of government.^ 
 The city of Des Moines made use of this plan of government 
 in 1908, and from that time its use has spread until about four 
 hundred cities are operating under this system. Comparatively 
 
 Convention, Vol. I, pp. 451-458. This gives digests of certain typical 
 charters, lists of state acts providing for commission government, and 
 lists of the commission-governed cities. A standard work is E. S. Brad- 
 ford's "Commission Government in American Cities." The operation of 
 the commission form of government during its first ten years is dis- 
 cussed in the National Municipal Rcvieiv, Vol. I, pp. 372-377. 562-568, 
 by E. S. Bradford and W. B. Munro. The United States Census Bureau 
 in 1Q16 published the "Comparative Financial Statistics of Cities under 
 Council and Commission Government." 
 
 ilowa, Laws of 1907, chap. 48, with amendments; Laws of 1909, 
 chap. 64; Laws of 1913, chap. 102. A digest of this law is in the Bulletins 
 for the Massachusetts Constitutional Convention, Vol. I, pp. 475-476.
 
 432 STATE AND MUNICIPAL GOVERNMENT 
 
 few cities with a population above 200,000 have tried the com- 
 mission form/ but about fourteen cities having a population 
 of from 100,000 to 200,000 have adopted it. These cities are 
 found in all sections of the country, though more are in the 
 South than in any other single section. As Professor Munro 
 has pointed out," the real problems of municipal government 
 develop generally in cities of over 100,000. Less than twenty 
 such cities have put the commission plan into effect. Accord- 
 ingly even yet it is too early to determine whether the scheme 
 will satisfy those municipalities in which the problems of gov- 
 ernment are most acute. The system is most popular in cities 
 having a population of less than 30,000, and there are nearly 
 three hundred such cities distributed among thirty-nine^ states; 
 in all, forty-three states have cities under this type of govern- 
 ment.^ Although the commission plan of government has been 
 rejected by a number of medium-sized cities,'^ only a few cities 
 have returned to the former system of mayor and council, 
 after they had once adopted the commission form. 
 Methods by The most common way in which cities may obtain commis- 
 
 which cities . . , , , i • i n 
 
 may adopt sion government is by general law, which allows any city 
 si'cHi'^t^p'e of within the state, with the approval of the citizens, to adopt the 
 government commission form of government. As a rule, however, general 
 laws exempt the great metropolitan centers and sometimes the 
 very small communities. In four states'' the commission form 
 is made obligatory for all cities of certain classes, and in 
 Pennsylvania it is required for all cities except Philadelphia, 
 Pittsburgh, and Scranton. Five states' have adopted optional 
 
 iNew Orleans, 1912; Jersey City, 1913; Portland, Oregon, 1913; 
 St. Paul, 1914; Buffalo, 1916. 
 
 -"Ten Years of Commission Government," National Municipal Re- 
 view, Vol. I, pp. 562-568. 
 
 3 For tables of cities see Bulletins for the Massachusetts Constitutional 
 Convention, Vol. I, pp. 481 et seq., also current numbers of the National 
 Municipal RrviCiC and the .American Year Book. 
 
 *The folio wing states have no cities governed by commission: Dela- 
 ware, Indiana, New Hamiishire, Rhode Island, and Vermont. 
 
 •'"' Bridgeport, Cambridge, Minneapolis, and Savannah. 
 
 "Alabama, Missouri, Pennsylvania, and Utah. 
 
 '' Massachusetts, New York, North Carolina, Ohio, and Virginia. 
 Sec page 382.
 
 GOVERNMENT BY COMMISSION 433 
 
 charter laws under which any city, with certain exceptions, 
 may adopt one of the optional charters provided by the legis- 
 lature. Among these alternative plans is the commission type 
 of city government. The ordinary method by which the per- 
 missive general laws or optional laws are invoked is through a 
 petition signed by 10 to 40 per cent of the voters (the most 
 usual percentage is 25), requesting that the act be submitted 
 at a general or special election. If it is ratified by the majority 
 of voters the new system goes into effect. A third method by 
 which commission government is offered is afforded under the 
 system of home-rule charters. Twelve states have home-rule- 
 charter laws which have been invoked for framing charters for 
 commission government. Of the more important cities which 
 have adopted charters by this means may be mentioned Port- 
 land, Oregon, and Spokane, Washington. A fourth method 
 by which commission government is applied to cities is through 
 special charters granted by the legislature. This way is fol- 
 lowed where legislatures have failed to adopt the home-rule 
 system, the optional-charter system, or general laws for com- 
 mission government, and has been invoked in some states where 
 the optional-charter system already exists. Buffalo and Lowell 
 may be mentioned as cities which have hy this method become 
 commission-governed. 
 
 The central feature of city government by a commission is Description 
 obviously the commission itself. In this is concentrated all machinery 
 the functions previously exercised by the mayor, city council efnmTnt by 
 and many of the administrative departments. The size of this commission 
 commission varies from three members to seven. Probably the commission 
 average size, taking all the cities throughout the country into 0° 
 consideration, would be five. The size of the commission is of s^°°"^ 
 vital importance. It should not be so large that it would repro- 
 duce some of the evils of the council system; on the other 
 hand, it should be large enough so that the commissioners 
 should not be overworked and that each commissioner might 
 be intrusted with the supervision of a single, homogeneous 
 administrative department, although these departments may 
 properly contain correlated bureaus. For any but the smallest 
 cities five is about the lowest number of departments into which 
 
 (a) Number 
 commis-
 
 434 STATE AND MUNICIPAL GOVERNIMENT 
 
 (b) Method 
 of election 
 
 the functions of the city may be consolidated. On the other 
 hand, it may be possible to consolidate the functions of even 
 the large cities into not more than six or seven.^ 
 
 As a general rule the commissioners are elected at large on a 
 nonpartisan ballot. Nomination is obtained either by petition 
 or by primaries. The former has sometimes resulted in placing 
 many names upon the ballot and thus may bring about the 
 election of a commissioner by a minority of the voters. Nomi- 
 nation by primaries, serving as it does in place of a preliminary 
 election, will eliminate all but the two highest candidates and 
 insure election by a majority of the voters. The use of the pri- 
 mary, however, involves considerable expense and expenditure 
 of energy. Consequently a few cities have adopted the system 
 of preferential voting, and a still smaller number have adopted 
 proportional representation. The working of these modes of 
 voting has already been described.- It should, however, be 
 noticed here that, unless there are three to five vacancies to be 
 filled, a system of proportional representation has little advan- 
 tage over the ordinary methods. The same criticism does not 
 apply to the use of preferential voting for filling a few vacancies. 
 
 The term of commissioners varies from one to six years. In 
 cities of more than 30,000 inhabitants the most common term 
 is either two or four years, only one city having a term of 
 five years and two cities terms of six years.^ In some states* 
 the charter laws provide for the partial renewal of the commis- 
 sion at each election, thus making the commission a continuous 
 body. Under the Iowa law, however, and the so-called Des 
 Moines plan the entire commission is renewed at each election. 
 (d) Salaries The Salaries paid to the commissioners in cities of more than 
 30,000 are everywhere higher than those paid to aldermen or 
 councilors. This is as it should be, since a commissioner is 
 expected to give a large part of his time, if not all, to the 
 administration of his department. Salaries vary from $6000 
 paid to the commissioners of New Orleans and $7000 in Buffalo 
 
 (c) Term 
 of commis- 
 sioners 
 
 'See arJministralion departments, p. 457. 
 
 'See pa^es 101-104. 
 
 ^The six-year term is provided by general law for all cities in Wisconsin. 
 
 ^Alabama, Montana. North Dakota, and South Dakota.
 
 GOVERNMENT BY COMMISSION 435 
 
 and Birmingham, down to S1800 in Galveston, $1200 in Boise, 
 and Si 000 in Waco. Perhaps the most common amount would 
 be between $1800 and $2500. 
 
 The grouping of the administrative departments under the (2) Admin- 
 
 " ' istrative 
 
 supervision of the commission is the second fundamental fea- departments 
 ture of this type of government. The numbers of these de- 
 partments vary with the number of commissioners, and their 
 designations also are different. A typical arrangement would 
 probably be as follows: (i) department of public affairs 
 (mayor, miscellaneous functions) ; (2) department of accounts 
 and finance; (3) department of public health and safety 
 (health, police, and fire protection) ; (4) department of streets 
 and public improvements; (5) department of public property 
 (municipal water and lighting plants, public buildings, etc.). 
 There are several methods for determining how the commis- 
 sioners shall be assigned to these departments. In most of the 
 cities the Des Moines plan is followed, by which the entire 
 commission is elected without specifying the department which 
 each commissioner is to administer, and the departments are 
 assigned by a vote of the commission. In other cities — and these 
 include cities adopting the charters provided in Arkansas, Lou- 
 isiana, and Massachusetts — the commissioners are nominated 
 and elected for specific departments. A third method is ex- 
 emplified by the general charter act of South Carolina, which 
 provides that the mayor shall assign the commissioners to the 
 various departments. There is, however, a provision which 
 allows the council to make rearrangements when necessary. In 
 Portland and St. Paul the mayor may make the assignment 
 and in the former may make reassignments "whenever it ap- 
 pears that the public service will be benefited thereby."^ Very 
 grave objections may be raised to the election of a commis- 
 sioner for a particular department. The tendency will be to 
 nominate and compel the election of a person who is supposed 
 to possess some expert knowledge of the functions of the 
 department for which he is a candidate. As will be seen, 
 this is contrary to the idea of a commission-government. The 
 commissioners are not supposed to be experts to run their 
 iR. M. Story, The American Municipal Executive, p. 192 note.
 
 436 STATE AND MUNICIPAL GOVERNMENT 
 
 (3) The 
 mayor 
 
 [Position 
 and influ- 
 ence of the 
 mayor] 
 
 departments, but they are expected to be intelligent executives 
 who are able to see that their departments run. It is more im- 
 portant to obtain a good executive who may be ignorant of the 
 technicalities of his department than it is to elect a presumed 
 expert who lacks executive or administrative ability. On the 
 whole, the apportionment of the departments by the commis- 
 sion itself has worked fairly well, although this method may 
 possibly develop logrolling. The third means — that of appoint- 
 ment by the mayor — is in vogue in so few cities that it is 
 impossible to generalize upon it. It would seem, however, to 
 be a reversal to the mayoralty type, which the commission 
 form is attempting to avoid. 
 
 In all commission-governed cities there is a presiding officer 
 known as the mayor. In most cities he is elected for this 
 particular office and is so designated on the ballot, but in a few 
 he is the commissioner who receives the highest number of 
 votes. The laws of Nebraska and New Jersey, however, pro- 
 vide that the mayor shall be chosen by the majority vote of 
 the commission. In all cases the mayor receives a somewhat 
 higher salary than is paid to the other commissioners. This 
 difference may be merely nominal or it may be several times 
 the salary of the commissioners.^ 
 
 According to the original plan for commission government 
 the mayor was little more than the presiding officer, and as 
 mayor had no more real power than any of the other commis- 
 sioners, although he might be assigned to one of the most 
 important, if not the most important, departments of adminis- 
 tration. According to the original plan he presided at the 
 meetings of the commission, represented the city in a cere- 
 monial capacity, and as commissioner had the right to vote on 
 any matter before the commission. He did not, however, 
 possess the veto or the power of appointment, which were the 
 two strongest elements of the mayor's influence under the 
 orthodox system of city government. The original plan has 
 
 1 Marshall, Texas, pays its commissioners $300 and its mayor $1800; 
 Waco, Texas, pays its commissioners $1000 and its mayor $2400. These 
 cases arc abnormal. Usually the mayor seldom receives more than four 
 fifths more salary than the commissioners.
 
 GOVERNMENT BY COMMISSION 437 
 
 been radically altered in the spread of commission government.^ 
 It has already been noticed that the mayor receives in practi- 
 cally every instance a higher salary than do the commissioners. 
 Likewise, attention has been called to the very important 
 power exercised by the mayor in some cities — that of assigning 
 the commissioners to the various administrative departments. 
 This tends to make the mayor very much more important 
 than anyone else or even than all the commissioners. But 
 the extension of the mayor-commissioner's powers does not 
 end here. In legislation the mayor not only presides over the 
 commission, but in the case of commissions of three has the 
 deciding vote and in commissions of five or seven very fre- 
 quently the decisive vote in case of a tie. He also is ordinarily 
 entitled to submit proposals and recommendations and in some 
 cases to prepare the budget for the commission. In not a few 
 cities the mayor retains the right of veto.- In Colorado Springs 
 he is given the item veto in appropriation measures, and a vote 
 of four out of the five members of the council is necessary to 
 override his veto ; since the mayor as a commissioner may vote, 
 this means that the rest of the council must be a unit against 
 him. On the whole, however, the mayor possesses no power of 
 veto. In some cities — for example, Houston, Texas — he is given 
 the power to appoint most of the important officials of the city, 
 and in Buffalo he is required to acquaint himself with the 
 conduct of each department and to report to the commission. 
 A similar provision is found in the Pennsylvania law. Thus, 
 although by theory the mayor was supposed to be little more 
 than the presiding officer of the commission, there is a distinct 
 tendency to exalt his powers. Aside from this legal extension 
 of his powers, the mayor exercises more influence than the 
 commissioners as a result of the American habit of creating 
 a "strong" executive. Perhaps it is fair to expect that the 
 power of the mayor-commissioners will increase in the purely 
 commission-governed cities as in the usual system or that these 
 
 ^See R. M. Story, The American Municipal Executive, pp. 182-198. 
 
 ^Highpoint, North Carolina; St. Paul, Minnesota; Chattanooga, 
 Tennessee ; Greenville, Houston, and Dallas, Texas. See R. M. Story, 
 The American Municipal Executive, p. 196 note.
 
 438 STATE AND MUNICIPAL GOVERNMENT 
 
 (4) Ap- 
 pointed 
 officers 
 
 (5) Inde- 
 pendent 
 departments 
 
 (6) Popular 
 control 
 of the 
 
 commission: 
 
 (a) The 
 initiative 
 
 will gradually alter their types of government to the city- 
 manager type, which will be discussed later. 
 
 Under the original system of commission government the 
 important subordinate officers were elected by the majority of 
 the commission. These officers included the city clerk, the 
 treasurer, the auditor, the city solicitor, and the chief of police. 
 The commissioner in charge of a department had the power to 
 appoint only the minor officials. This has been departed from 
 in the optional charter law of Massachusetts, where the com- 
 missioners make all the appointments within their respective 
 departments, subject to ratification by the whole commission. 
 
 In most commission-governed cities there are independent 
 departments outside of the commission's control. In practi- 
 cally all the cities the administration of the schools is intrusted 
 to a school board instead of being controlled by th'e commis- 
 sion, although exceptions should be noticed in the case of 
 Buffalo. St. Paul, Chattanooga, and Sacramento. In these cities 
 the commission acts as a school board, appoints the school 
 superintendent, and determines all questions of educational 
 policy. In several cities the fiscal officers, such as the comp- 
 troller and auditor, are not appointed by the commission, but 
 are chosen by popular election.^ 
 
 According to the Galveston plan the action of the commis- 
 sion was expected to be conclusive and final unless overturned 
 by the state legislature or the courts. When the plan was 
 adopted in Iowa by the city of Des Moines, the machinery of 
 direct popular control was applied to the plan in the form of 
 the initiative, the referendum, the protest, and the recall. The 
 initiative, as applied to commission government, differs little 
 from its use in state affairs. An ordinance or order may be 
 prepared by any person and, if signed by a certain percent- 
 age of the voters, must be considered by the commission. The 
 number of signatures necessary for initiating a measure varies 
 from 5 per cent in South Dakota to 40 per cent in the second- 
 class cities under the commission government law in Kansas. 
 
 'St. Paul, Tacoma, Houston, San Diego, and Portland, OreRon, and 
 the cities under tlic Pennsylvania commission-government law.
 
 GOVERNMENT BY COMMISSION 439 
 
 The more common percentage is either 15 or 25. If the com- 
 mission adopts the measure proposed by the petitioners, the 
 matter ends there ; but if they desire to amend it or refuse to 
 adopt it, it must be submitted to the next general election, if 
 
 such occurs within ninety days, or at a special election. The (&)The 
 
 -J protest 
 protest was a means adopted in the Des Momes charter for de- 
 laying the operation of ordinances passed by the commission 
 until the people had the opportunity to express themselves. 
 Thus, no ordinance except an emergency one goes into effect 
 for ten days; if during that time 25 per cent of the voters of 
 the city sign a petition protesting against such an ordinance, the 
 commission must reconsider their action. When the ordinance 
 is not entirely repealed by the commission it must be submitted 
 to the people at a general election, if one occurs within ninety 
 days, or at a special election. If the ordinance receives a 
 majority vote, it becomes operative at once ; if it is rejected, 
 it remains inoperative. This protest just described is only an- 
 other name for the referendum, which has already been dis- (c) The 
 
 . referendum 
 
 cussed. The Des Moines charter, however, requires that the 
 commission shall grant no franchise to any public-utility cor- 
 poration without submitting the same to the electorate. There- 
 fore no franchise becomes valid until it has been confirmed 
 by the majority of the electorate voting at that election. The 
 Des Moines charter provided for the recall of the commis- (d) The 
 
 • 1 1 • 1 • -i recall 
 
 sioners, and this has been quite widely copied m many city 
 charters. The machinery for using the recall is similar to that 
 which has already been described.^ The number of signatures 
 required on the recall petition varies from 10 per cent of the 
 voters in the Virginia charter law to 55 per cent under the 
 Illinois laws. In general, petitions may not be invoked against 
 a commissioner until he has been in office a certain length 
 of time, varying from three to six months. 
 
 The same arguments may be advanced against the use of Merits of 
 
 ... 11 1 !• popular con- 
 
 popular control in municipal government that have been dis- troi under 
 
 cussed with regard to state government. But these arguments g^veTn^ent 
 have not the same validity when applied to government by 
 
 iSee pages 126-128.
 
 440 STATE AND MUNICIPAL GOVERNMENT 
 
 commission. In the first place, it should be noted that the 
 electorate of a city, diverse as it is, is more homogeneous than 
 that of the entire state. In the second place, it should also be 
 mentioned that, except in granting franchises, the referendum 
 is always of the optional type, which even theorists have pro- 
 nounced the least objectionable. The obligatory type of the 
 referendum as applied to public franchises submits to the voters 
 a question on which they are all supposed to be vitally inter- 
 ested. There are, moreover, certain considerations which would 
 favor the use of these instruments of popular control. Gov- 
 ernment by commission is a radical departure from the time- 
 honored form of municipal government. It concentrates in 
 the hands of from three to seven commissioners both the power 
 to determine what the tax rate shall be and the power to spend 
 the money raised by taxation. The small size of the commis- 
 sion makes it seem to many critics unrepresentative. The 
 blending of the legislative and the administrative power seems 
 to others a violation of the sound principle embodied in the 
 separation of the powers of government. Rightly or wrongly, 
 the voters would hesitate to trust all these powers to the same 
 small group of men. The provision for the initiative and refer- 
 endum, therefore, appears to safeguard the traditional rights 
 of the voters and to enable them in crises to make sure that 
 the commission shall carry out their desires. The introduction 
 of the recall of commissioners is also probably a wise move. 
 It may sound revolutionary to those familiar with the tradi- 
 tional type of mayor and council, where the councilors in- 
 dividually have very little power and the personal failings of a 
 single councilor hardly count among the many members. In 
 the commission form of government not only has each commis- 
 sioner far more power than the individual councilors but he 
 is charged with important administrative duties. It is not 
 unreasonable, therefore, that an opportunity should be given 
 the voters to correct the errors which perhaps were made at the 
 original election. It is significant that although these weapons 
 of popular control are widely found in commission charters, 
 they have not been very frequently used. It is the possibility 
 of their use in an emergency which has brought satisfaction.
 
 GOVERNMENT BY COMMISSION 441 
 
 The commission form of government has many advantages, Merits and 
 as well as a few serious faults and several pretended faults.^ commission 
 The great merit of the commission form of government is ernme°nfr' 
 that it concentrates responsibility. Whatever are the faults or (i)Concen- 
 
 ■^ trates re- 
 
 merits of the orthodox type of city government, none could sponsibiuty 
 claim that the responsibility was concentrated. The mayor, 
 the administrative departments, the city council, and in some 
 instances both bodies of the city council were constantly shift- 
 ing the responsibility of mismanagement from one to another. 
 The mayor-and-council system is one in which the checks and 
 balances are a part of the framework. There are no checks and 
 balances in the framework of the commission system. The 
 commission itself is all-powerful to act for better or for worse. 
 The responsibility is theirs, and they cannot avoid it. What- 
 ever safeguards do exist are outside of the framework of 
 government in the use of the initiative, the referendum, and 
 the recall. 
 
 By far the greater part of the work of the city's governing (,) m- 
 body is not governmental, but administrative. The orthodox business 
 form of municipal government provides a system of govern- methods 
 ment which has been well tested and approved for govern- 
 mental purposes. Yet this system is never adopted in any 
 business organization. The commission system attempts to 
 provide a business organization for a body engaged in busi- 
 ness. After all, the greater part of the work of city officials is 
 concerned with the paving of streets, the purveying of water, 
 the disposal of sewage, the building of schools and other public 
 buildings — all matters which have little to do with the prob- 
 lems of government. Commission government establishes a 
 board of directors similar to that in a business concern for 
 carrying out the city business. 
 
 In the orthodox type of city government the mayor, the (3) Reduces 
 
 , , . ., , ,. friction 
 
 administrative departments, and the city council (sometimes 
 consisting of two bodies) all have a hand in the execution 
 
 iThe best discussion of the merits and faults of commission govern- 
 ment is found in W. B. Munro's "Government of American Cities" 
 (3d ed.), pp. 304-319. His analysis and, in most instances, his conclu- 
 sions are briefly condensed in this criticism.
 
 officials 
 
 442 STATE AND MUNICIPAL GOVERNMENT 
 
 of a city project. These three or sometimes four independent 
 or semi-independent bodies do not always agree. Some or all of 
 them may have their own particular axes to grind. As a result, 
 under the old type of government, friction and delay not in- 
 frequently occurs ; under the commission type the commissioner 
 in charge of the department absolutely controls it. It is true 
 that the policy as to what his department shall do may be de- 
 termined either by the vote of the commission itself or by the 
 direct action of the voters, but once determined, a policy can be 
 carried out without delay or friction. There is little chance for 
 improper political influence in the execution of the project. 
 (4) Improves The testimony as to the improvement of officials is by no 
 of municipal means unanimous. Investigation shows that a large percentage 
 of former city officials gets into office under the commission 
 system.^ Although the same type of men may obtain office 
 under the new system, the results, as will be seen, are very 
 different. The testimony of men who have served under both 
 systems is that under commission government there is more 
 incentive for good administration, more opportunity for faith- 
 ful work. Ultimately it should be remembered that the city is 
 what the voters desire it to be, and that no framework can 
 possibly be devised for a better form of government than the 
 city desires. The open and undisguised responsibility which 
 each member of the commission bears may frequently prevent 
 the secret and sinister influence which interested parties for- 
 merly exerted upon individual councilmen and may cause the 
 commissioners to act for the good of the city rather than at the 
 dictates of a special interest. 
 (5)isunrep- The objection that the commission is unrepresentative is 
 based upon the false assumption that a small body is less rep- 
 resentative than a large one. If this principle is carried to its 
 logical extreme all representative bodies are unrepresentative. 
 A large body chosen by wards represents ward politics and 
 political organizations; a small body chosen at large can, if it 
 will, discover public sentiment just as accurately and is likely 
 to be less hampered than a large council. 
 
 iW. M. Munro, "Ten Years of Commission Government," National 
 Municipal Review, Vol. 1, p. 562, 
 
 resentative
 
 GOVERNMENT BY COMMISSION 443 
 
 The criticism that the commission can be easily controlled (e) can be 
 rests on the assumption that small bodies are more easily controlled 
 controlled than large ones. This is contrary to experience in 
 municipal government. The large two-chambered city council 
 of Philadelphia, which formerly contained one hundred and 
 thirty-two members, was as completely under the control of 
 certain interests as any small body could possibly be.^ Sinister 
 control of legislative bodies is more apt to be exerted by a 
 political machine and an unscrupulous boss through the power 
 of the party organization than through the corrupt influencing 
 of the individual council member. 
 
 The most fundamental criticism of city government by a Funda- 
 commission is that it does not go to the logical extreme ; it does criticism of 
 not sufficiently concentrate responsibility ; it does leave the government 
 opportunity for friction, logrolling, and shifting of responsi- 
 bility within the commission. Under the type of government 
 by mayor and council, where, as in Boston or New York, the 
 mayor almost completely dominated the council, there was a 
 very real and definite responsible single head in municipal ad- 
 ministration. This is not so in government by a commission, 
 although it has been pointed out- that the tendency is to 
 strengthen and extend the powers of the mayor-commissioner. 
 It is at this point that city government by a commission falls 
 short, and here that the second revolutionary type of city 
 government was introduced ; namely, the city-manager form. 
 
 City government by a commission has accomplished many Results of 
 good things, but it has not accomplished all its advocates hoped ment^by""' 
 for. An investigation made in 191 5 of eight cities showed that 
 they had succeeded in many instances in reducing the per- 
 capital levy of property taxes."' These cities under commission 
 government also spent less money per capita, but the net per- 
 capita indebtedness of the cities under commission government 
 
 ^W. B. Munro, The Government of American Cities, p. 314. 
 
 2 See pages 436-438. 
 
 ^United States Bureau of the Census, Comparative Financial Statis- 
 tics of Cities under Council and Commission Government, 1Q13 and igi5 
 (Washington, 1916), Table I, p. 9. These tables are reproduced in 
 W. B. Munro, The Government of American Cities, p. 319, and in 
 Bulletins for the Massachusetts Constitutional Convention, Vol. I, p. 473. 
 
 commission
 
 444 STATE AND MUNICIPAL GOVERNMENT 
 
 was somewhat greater than that of eight cities under the old 
 form. These statistics tell only a part of the story — the in- 
 debtedness of the cities in many cases is an inherited one. The 
 slight difference in per-capita expenditure ($2.68) probably 
 indicates that the cities' money is more economically spent. 
 Municipal government is expensive under whatever form it is 
 attempted. It is probable that under the commission form 
 less money is wasted and the municipal revenue is more effi- 
 ciently expended than under the old type of city government. 
 Finally, it should be noted that on the whole government by a 
 commission gives satisfaction. Only a few cities which have 
 established the commission form of government have returned 
 to the old type. The movement has been rather in the other 
 direction, and many commission-governed cities have carried 
 the system to the logical conclusion and adopted the city- 
 manager plan.
 
 CHAPTER XXV 
 
 TYPES OF MUNICIPAL GOVERNMENT— THE CITY- 
 MANAGER PLAN 
 
 The city-manager plan may be defined as a system of munici- Definition 
 pal government in which the determination of the municipal manager 
 policy and the general direction of the city are vested in a ^^^ 
 council or commission, while the administrative functions are 
 concentrated in a single executive chosen by the commission 
 and designated as the city manager/ The city-manager plan, 
 therefore, attempts to remedy several of the evils which the 
 working of the commission plan has disclosed. These evils were, 
 first, the friction and delay which might result from the major- 
 ity of the commission overruling the action of the commissioner 
 in charge of a special department. Time and time again this 
 has occurred, and the commissioner, who was departmental 
 head, found himself in no better position than an administra- 
 tive officer under the council type of government. Again, there 
 has been a tendency to elect as commissioners men who were 
 supposed to possess expert knowledge of some department of 
 city administration. This selection of administrative heads by 
 popular vote proved a failure under the mayor-and-council type 
 of government, and in most of the modern city charters the 
 administrative heads were appointed by the mayor with an in- 
 creasing tendency to free such appointments from confirmation 
 
 iln the Bulletins for the Massachusetts Constitutional Convention, 
 Vol. I, pp. 489-519, there is a modern treatment together with a digest of 
 the Dayton charter and a tabular view of the condition of nine cities un- 
 der the city-manager form of government. W. B. Munro, The Govern- 
 ment of American Cities (3d ed.), chap, xv, gives an excellent treatment, 
 together with additional references. Mention should be made of the ad- 
 mirable monograph with full notes and references prepared by Tso-Shuen 
 Chang, History and Analysis of the Commission and City Manager Plans 
 (Iowa City, 1918). The files of the National Municipal Review, Ameri- 
 can City, and Short Ballot Bulletins give excellent current information. 
 
 445
 
 446 STATE AND MUNICIPAL GOVERNMENT 
 
 Develop- 
 ment and 
 spread of 
 the city- 
 manager 
 movement 
 
 Method of 
 adoption 
 
 by the rest of the city government. The theory of government 
 by a commission was to provide a council of amateurs who 
 would represent public opinion and outline the policy for 
 the expert to carry out. The system certainly resulted in the 
 choice of amateurs as members of the commission. Since, how- 
 ever, the commission form of government was applied largely 
 in small cities, there seemed to be little need for both a paid 
 commissioner and a paid administrator. As a result, the com- 
 missioner frequently undertook to manage the affairs of the 
 department, for which he had little or no qualifications, and to 
 perform duties which he was not supposed to perform according 
 to the original conception of the commission type of govern- 
 ment. The city-manager movement carries the form of com- 
 mission government to its logical conclusion — it provides for 
 a small policy-determining body and a professional, expert 
 administrator. 
 
 The first city in the United States to adopt a city manager 
 was Staunton, Virginia. In 1898, by a local ordinance, with- 
 out charter provision, the greater part of the administrative 
 duties of the old mayor and council (who were retained) were 
 turned over to a general manager. Sumter, South Carolina, in 
 1913 obtained from the legislature a charter which included 
 most of the provisions of the city-manager plan. The form of 
 city-manager government, however, was most fully and carefully 
 worked out in the charter of Dayton, Ohio, which went into 
 effect on January i, 1914. Since that date the movement has 
 spread rapidly, until about two hundred cities have adopted 
 this form of government in one shape or another. The move- 
 ment is largely confined to the smaller cities ; there are only 
 three of more than 100,000 population — Grand Rapids, Michi- 
 gan, Dayton, Ohio, and Norfolk, Virginia — which have adopted 
 this plan. Three cities with populations between 50,000 and 
 100,000 are administered under this plan, while a large number 
 of cities between 10,000 and 50,000 and a still greater number 
 under io,ooo have adopted either the system with all its details 
 or certain modifications. 
 
 The city-manager plan has been put into effect by five 
 principal methods. In a few instances the city-manager feature
 
 THE CITY MANAGER 447 
 
 has been grafted on the old type of the city government by 
 means of a local ordinance. Twelve states^ provide for home 
 rule and allow cities to frame their own charters, and a number 
 of municipalities in California, Michigan, Ohio, and Texas have 
 taken advantage of this and have acquired city-manager char- 
 ters. A few states provide optional charters, among which is 
 generally found a city-manager plan. A large number of cities, 
 however, have adopted the city-manager plan as the result of 
 special legislative charters granted to the individual city as the 
 result of a special statute. In a few states there exist general 
 city-manager charter laws which any city may adopt. 
 
 The plan adopted by Dayton, Ohio, has served as a model The 
 for most of the other charters. Since these charters, however, manager ^' 
 vary only in details, it is advisable to analyze with some care p^*°- 
 the Dayton plan and then to show some of the variations. 
 
 All the municipal powers in Dayton are vested in a commis- (i) The 
 sion of live citizens. This commission is chosen at large for a 
 term of four years, either two or three commissioners being 
 elected every alternate year, and is thus a continuous body. 
 Nominations are made at nonpartisan primaries upon a petition 
 signed by at least 2 per cent of the registered voters of the 
 whole city. The names of the four or six candidates who re- 
 ceive the highest number of votes are placed upon the ballot 
 without party designation, and the two or three candidates 
 who receive the largest number of votes at the polls are de- 
 clared elected. The commissioner who receives the highest 
 number of votes at the election of three commissioners is 
 designated as mayor. It should be noted that the commis- 
 sioners are not elected for any particular department, as in 
 some of the cities governed by commissions ; in fact, according 
 to the Dayton plan a commissioner does not preside over an 
 individual department. The mayor acts simply as the presid- [The mayor] 
 ing officer, and in ordinary times has no administrative powers. 
 In some cities, however, he may, in time of emergency, assume 
 control of the police and govern the city by proclamation. 
 Occasionally he is made the sole judge as to whether such an 
 
 ^Arizona, California, Colorado, Michigan, Minnesota, Missouri, 
 Nebraska, Ohio, Oklahoma, Oregon, Te.xas, and Washington.
 
 448 STATE AND MUNICIPAL GOVERNMENT 
 
 emergency exists or not/ In Dayton the commissioners receive 
 (a) Salary a Salary of $1200 a year and the mayor S1800. Any member 
 (6) Subject of the commission, after he has been in office six months, is sub- 
 to recall jg^^ ^^ recall on a petition signed by 25 per cent of the voters. 
 (c) Duties The general duties of the commission are to enact ordinances 
 and adopt regulations for the government of the city. All 
 ordinances adopted by the commission are subject to a refer- 
 endum, and the initiative may be invoked in case the commis- 
 sion fails to act. In so doing, the commission may create or 
 abolish departments, may levy taxes and vote appropriations, 
 and may investigate the financial transactions of any depart- 
 ment. It elects its own clerk (who also serves as city clerk) 
 and appoints the civil-service board. It has no direct control 
 over the administration of the city. Probably its most impor- 
 tant function is the election of the city manager, and it is 
 through his selection or recall that the commission is most 
 effective in controlling the administrative affairs of the city. 
 (2) The city The city manager in Dayton is elected by the majority vote 
 of the commission for no fixed term, at a salary named by the 
 commission. He is thus at any time subject to recall by the 
 commission ; and in Dayton, contrary to the common practice, 
 he may be popularly recalled as well. The charter of Dayton 
 and of most city-manager cities provides that the city manager 
 shall be appointed without regard to his political beliefs, that he 
 shall be an expert, and not necessarily a resident of the city. 
 Dayton and many of the cities adopting this plan have at- 
 tempted to obtain the best type of administrator possible, with- 
 out regard to either residence or political affiliation. Many of 
 the smaller cities have advertised for city managers and have 
 chosen their executives as the result of the comparative and 
 competitive examination of their records. In not a few instances 
 managers of small cities have been called to similar positions 
 in larger and more important places. This system of obtain- 
 ing the city manager irrespective of his residence or politics 
 is one of the most healthful results of the city-manager move- 
 ment. As has been said, the chy manager of Dayton is subject 
 to popular recall. This is considered a grave mistake by most 
 
 1 R. M. Story, The American Municipal Executive, p. 202. 
 
 manager:
 
 THE CITY MANAGER 449 
 
 critics, for it forces the city manager to satisfy the general 
 public in carrying out the directions of the commission, to 
 which he is responsible. It can be defended in the Dayton 
 charter only on the ground that it was a compromise necessary 
 in order to secure the adoption of the system. 
 
 The city manager exercises great influence in his advisory (a) Advis- 
 capacity. He attends the meetings of the commission and has °^^ ^^"^^ 
 the right to take part in the discussion. He thus may pro- 
 pose, defend, or plead for the adoption of any particular policy, 
 but he has no vote in determining this policy. However, it 
 may be expected that the advice of a manager appointed by 
 a commission, and one in whom the commission has full 
 confidence, will have great weight. 
 
 The city manager in Dayton and in most other cities is the (t) Execu- 
 real and practically the sole executive of the city. By charter ^^ ^ ^ "^ 
 he is instructed to see that the ordinances are enforced, and he 
 is the executive officer who is intrusted with carrying out the 
 policy of the commission. 
 
 In Dayton and in most cities operating under this form of (c) Power of 
 government the city manager is given wide appointing power, ment and 
 The city officials in Dayton are divided into the "classified" "^^^o^^^ 
 and "unclassified" services, the latter including the heads of 
 the administrative departments. The city manager may appoint 
 these officials on any basis and according to any rules he may 
 determine ; no confirmation by the commission is required. He 
 also is given authority to remove — for any reason, at any time 
 — any of his appointees in the "unclassified" service. All 
 subordinates are put upon what is known as the "classified" 
 service. The city manager may appoint these subordinates, 
 but only in accordance with rules established by the municipal 
 civil-service commission. He may likewise remove any mem- 
 ber of the classified service, but only after a hearing before 
 the civil-service board upon charges made in writing and in 
 accordance with the proper procedure. 
 
 The city manager has the control of all city departments, (d) super- 
 
 TT • • 1 re • r • 1- • vises all City 
 
 He may mvestigate the affairs of any department either in departments 
 person or through investigators appointed by him. He keeps 
 the departments in touch with one another, adjusts their plans,
 
 450 STATE AND MUNICIPAL GOVERNMENT 
 
 and settles any differences. Through his power to appoint 
 and remove the head of every department he can make his 
 directions compulsory. 
 (3) Admin- The Dayton charter estabHshes five administrative depart- 
 departments ments : finance, law, public welfare, public safety, and public 
 service. Each of them is under a director, who, as has been said, 
 is appointed by and is responsible to the city manager. The 
 duties of most of the departments are explained by their titles, 
 but it is worth while to note the work of certain bureaus which 
 have been established within the departments by ordinance 
 of the commission. For example, the department of finance has 
 three divisions; namely, the treasury, the accounting, and — 
 perhaps of most importance in developing economical adminis- 
 tration — the bureau of purchasing. The department of public 
 safety has divisions for police, fire protection, sealing of weights 
 and measures, and inspection of buildings. There are four 
 divisions in the department of public service : ( i ) the division 
 of engineering, with the bureaus of design and construction, 
 sewer maintenance, and street-lighting; (2) the division of 
 streets, with the bureaus of waste removal, street-cleaning, and 
 street repair; (3) the division of water; and (4) the division 
 of public lands and buildings. The department of public wel- 
 fare includes the divisions of health, parks, playgrounds, legal 
 aid, correction, and the local employment agency. 
 (4) Pinan- The Dayton charter is unique in the attention it pays to the 
 8ions"^°^' financial details of the city government. INIany of the charters 
 providing for the new types of city government are content to 
 prescribe a framework which is left to be filled in by municipal 
 ordinances. The Dayton charter goes into great detail in 
 prescribing provisions for budget-making and purchasing. The 
 estimates for the budget are prepared by the city manager 
 from data furnished him by the department heads. These esti- 
 mates are then published and submitted to the city council. 
 The charter also requires that before the commission acts upon 
 it public hearings shall be held. Almost as important as the 
 provisions for the budget is the system prescribed for municipal 
 accounting, which provides for an accurate determination of 
 the costs of all the city services. Finally, a central purchasing
 
 THE CITY MANAGER 451 
 
 agent is provided, who buys the supplies for all the depart- 
 ments of the city. Many of the provisions with regard to 
 finance, accounting, and purchasing which are found in the 
 Dayton charter may prove in practice a little too rigid, yet 
 they are a noteworthy effort to remedy the abuses which have 
 been disclosed in these departments of city government. 
 
 The Ashtabula plan for a city manager is an attempt to The 
 
 f-i ... , . iT^ T T Ashtabula 
 
 meet one of the criticisms made against the Dayton plan. It plan 
 has been held that the Dayton plan of providing for the elec- 
 tion of all the commissioners at large does not adequately insure 
 minority representation. In the Ashtabula plan the seven mem- 
 bers of the council are elected by means of the Hare system 
 of proportional representation. This has already been de- 
 scribed.^ In the elections which have been held under this system 
 the dangers feared by the critics of proportional representation 
 were not realized. A more vital danger was disclosed perhaps 
 in the fact that the members of the council so elected repre- 
 sented very definite racial, religious, or economic groups and 
 lacked homogeneity of political purpose. 
 
 The city-manager plan is too new for an accurate estimate Results of 
 of what has actually been accomplished. Yet in the years in manager 
 which it has been in operation it has apparently satisfied the p^^° 
 cities which have adopted it, as no city has returned either to 
 the commission or to the mayor-and-council type of municipal 
 government. The commission appointed to compile informa- 
 tion and data for use in the Massachusetts Constitutional Con- 
 vention, under the direction of Professor Munro, sent in 1915 
 to nine typical city-manager cities a list of forty-live definite 
 questions.- The answers to some of these questions are tabu- 
 lated in the Bulletins for the Massachusetts Constitutional 
 Convention •'■ and are amplified by Professor Munro in the 
 latest edition of "The Government of American Cities."^ His 
 
 iSee pages 102-104; also A. R. Hatton, The Ashtabula Plan, in 
 National Municipal Review, Vol. V, pp. 56-65. 
 
 -These cities were Bakersfield, California; Jackson and Manistee, 
 Michigan ; Dayton and Springfield, Ohio ; La Grande, Oregon ; Amarillo 
 and Sherman, Texas; and Staunton, Virginia. 
 
 ^Vol. I, pp. 506-508. 
 
 4Pp. 395-398.
 
 452 STATE AND MUNICIPAL G0VERN:MENT 
 
 Financial 
 results 
 
 conclusions are similar to the evidence which is set forth in 
 the City Managers' Year Book and in other publications. In 
 City general they show that the city-manager system has succeeded 
 
 are'e^xperts in obtaining experts in administration. As has been pointed 
 out, many of the smaller cities choose their managers as the 
 result of adv^ertising and of comparative records. The result 
 is that not only are the cities attempting to secure experts, but 
 men are training themselves for this profession. The type of 
 man most frequently selected is an engineer — preferably one 
 who has had experience in municipal affairs. In most cases the 
 city manager is not a resident of the city ; this is all to his 
 advantage, inasmuch as he starts with a clean slate and free 
 from local prejudices.^ 
 
 The published reports show that all the nine cities kept 
 within their revenue and were not obliged to issue bonds. In 
 Springfield, Ohio, for example, a floating debt of $120,000 was 
 liquidated in two years. The bonded indebtedness in Jackson, 
 Michigan, was reduced by $50,000 and a floating indebtedness 
 of Si4,ooo paid off. In most of the cities reporting, the tax 
 rate either was not raised or was actually lowered. All but 
 one of the cities reported that new and improved accounting 
 methods were introduced, and in all of them the budget system 
 is followed, generally of the segregated type. The city man- 
 ager in four of the cities acts as purchasing agent for all 
 supplies, while in three cities separate purchasing agents are 
 established. 
 
 The adoption of the city-manager plan has resulted in greater 
 administrative efficiency. The work of the heads of the various 
 departments is coordinated and kept in harmony through the 
 manager, while the discipline and management of the municipal 
 employees is taken out of politics and governed by principles 
 of efficiency. A great deal has been done for the improvement 
 of the city in the care of the public health and the general 
 betterment of the community. This has been accomplished in 
 most cases without increasing the tax rate, through methods of 
 greater economy and efficiency. 
 
 ^American City, \'ol. XII, pp. 400-51.], and Vol. XIII, pp. 419-421, 
 gives brief biographical sketches of some of (lie city managers. 
 
 Adminis- 
 trative 
 efficiency
 
 THE CITY MANAGER 453 
 
 The popularity and success of the city-manager movement 
 indicates that it is a system which has become a permanent 
 type of American municipal government and which probably 
 will be extended. Many of the three hundred cities which have 
 adopted the commission form of government will not find it 
 satisfactory for their purposes, and it is more likely that they 
 will carry the principles to their rational conclusion and adopt 
 the city-manager system than that they will revert to the 
 mayor-and-council type. Also, more and more cities are adopt- 
 ing the plan each year. It seems to be a logical develop- 
 ment of the attempt to place the government of our cities upon 
 a business basis.
 
 CHAPTER XXVI 
 
 ADMINISTRATIVE DEPARTMENTS: OFFICIALS AND 
 
 EMPLOYEES 
 
 AD:\riNisTRATivE Departments 
 
 Position of The administrative departments occupy a unique position in 
 tivTdepart'- municipal government in the United States.^ In Great Britain 
 ments in administration is conducted by means of committees of the 
 
 American •' 
 
 municipal borough councils. In the burgomaster type of organization as 
 government 
 
 adopted in Germany the heads of the administrative depart- 
 ments are usually the subordinates. In France the mayor is 
 the repository of all the executive power, and although the 
 adjoints are elected by the council their duties are assigned 
 them by the mayor, who retains a nominal if not actual control 
 over them. In England the committees of the council (which 
 is the policy-determining body) constitute the administrative 
 departments. The German city council determines the policy, 
 which the administrators carry out independently of the coun- 
 cil. In France and to a certain extent in Italy the council 
 chooses the administrators, but the mayor as executive directs 
 and controls their policies and acts. Examples may be found 
 in the United States of these three types of administrative 
 departments. Yet the general tendency here is toward self- 
 contained administrative departments, which, to a large degree, 
 are beyond the immediate control of the city council. 
 
 Originally the supervision and actual conduct of administra- 
 tion was one of the functions of the city council. As has been 
 seen, the slight administrative functions undertaken by the 
 
 ^W. B. Munro, The Government of American Cities (3d ed.), chap, x, 
 gives a clear account of the position and organization of administrative 
 departments, together with references to other material. Nathan Mathews, 
 Municipal Charters, chap, vi, deals with the organization of the adminis- 
 trative departments and the appointment of the officials. 
 
 454
 
 ADMINISTRATIVE DEPARTMENTS 455 
 
 cities in the early years of the nineteenth century were carried Deveiop- 
 out by committees of the council. The deterioration in the administra- 
 character of the council and the inefficiency of its work in ^entsTiT"^^ 
 administration led to a change. At first the functions of admin- the united 
 
 ^ states 
 
 istration were given to boards or officials chosen not by the 
 council but by the electorate at the polls. This was the begin- 
 ning of the creation of independent, self-sufficient administra- 
 tive departments. Election was soon found to be a poor way 
 of securing administrative efficiency. Consequently the choice 
 of boards or officials was vested in the mayor, either with or 
 without the confirmation of the city council. In some instances, 
 however, administrative departments were created whose heads 
 were chosen by the council. The general tendency under the 
 mayor-and-council system of government is toward the estab- 
 lishment of administrative departments under the direction of 
 the mayor; that is, the heads of these departments in many 
 cities are appointed and removed by the mayor without regard 
 to the city council. The same tendency is to be noticed in the 
 city-manager type of government, where the city manager 
 appoints and supervises the departments independently of the 
 council. In commission government each commissioner is nom- 
 inally the head of an administrative department and nominally 
 responsible for its operation, but practically the other members 
 of the commission too often interfere in the management of a 
 department and sometimes overrule the commissioner in charge. 
 It v^^as because of this tendency that the city manager was made 
 solely responsible for the administration of all the departments. 
 
 The city council under every form of government should Extent to 
 control the policies of the various departments. It is the legis- council 
 lative or policy-determining body, and its proper function is to tSSeT- 
 decide what shall be done in municipal administration. Fur- partments 
 thermore, the city council exercises the power of taxation and 
 appropriation and thus, through its control of finance, deter- 
 mines to a very large degree the activities of the administrative 
 departments. This will be brought out clearly in the dis- 
 cussion of the financial administration of the city and, particu- 
 larly, of the administrative power which it exercises through 
 the budget. There can be no question but that the ultimate
 
 456 STATE AND MUNICIPAL GOVERNMENT 
 
 control of the administrative departments must lie either in the 
 city council or in the voters acting directly through the initia- 
 tive and referendum. The real problem is how this control can 
 best be exercised so that the council shall freely exercise the 
 policy-determining power, and the administrative departments 
 be equally free in carrying out this already determined policy 
 and in conducting their affairs without interference on the part 
 of the council. At the one extreme stands the system in opera- 
 tion in city-manager cities, where the council is theoretically 
 prohibited from all interference and the administrative depart- 
 ments are solely responsible to the city manager ; at the other 
 extreme is the method of administration by committees of a 
 council in vogue in England and to a slight extent in some 
 American cities. 
 Advantages Theoretically there is much to be said in favor of conducting 
 committees municipal administration by means of council committees.^ 
 as admin- ^^^ ^^le least among these advantages is the fact that it makes 
 
 1 strati ve ° ° 
 
 bodies service in the city council attractive. It is stated that the 
 
 decline in the caliber of council members was due to the fact 
 that the councilmen had few attractive functions to perform. 
 The argument is that if more was given to the councilors to 
 do, a better type of man would be attracted to do it. This 
 may be true in theory, but historically the character of the 
 council declined at a time when it was performing practically 
 all the functions of administrative departments. One may well 
 doubt whether the traditions of seventy years could easily be 
 overcome and men of experience and administrative ability 
 secured for the city council even if its functions were extended. 
 Emphatically this is likely to be the case under the system of 
 the mayor and council. Administration by council committees, 
 however, does embody a sound principle. As has been pointed 
 out the council is the policy-determining body in the city gov- 
 ernment, and it also controls the purse. It is ridiculous to 
 expect that an elected body endowed with these powers will 
 surrender them entirely to appointive officials. And even if 
 the charter of the city makes such a provision, members of the 
 city council would still individually exercise intluence. Thus, 
 'See W. B. Munro, The Government of American Cities, pp. 237-239.
 
 ADMINISTRATIVE DEPARTMENTS 457 
 
 theoretically, administration by council committees has much 
 in its favor; practically, it has failed to work satisfactorily in 
 the United States. 
 The number of administrative departments varies greatly in Number of 
 
 ... . . adminis- 
 
 different cities, depending both on the extent to which munici- trative 
 pal administration is developed and on the extent to which the ^p^^"^^" ^ 
 various fields have been sharply differentiated. In addition to 
 the regular administrative departments, which are more or less 
 under the control of the city government, there are often to be 
 found boards, commissions, and officials, sometimes under direct 
 state control and sometimes occupying an anomalous position. 
 New York City maintains 15 administrative departments; 
 Chicago, 12; Philadelphia, 11; Boston more than 30; St. 
 Louis, 16. As has been shown in the chapter on commission 
 government, the tendency is to reduce the number of these 
 departments, and most cities of middle-size are able to group 
 their administrative affairs into five or six departments. In gen- 
 eral, these departments could be organized as follows : ( i ) the 
 legal department; (2) the department of finance, which would 
 deal with assessments, taxes, the treasurer's office, and the 
 auditor; (3) the department of public safety, which would 
 include the police and fire departments, the inspection of build- 
 ings, and the granting of licenses ; (4) the department of public 
 works, dealing with the construction and maintenance of public 
 buildings, streets, sewers, parks, and playgrounds; (5) the de- 
 partment of public health. In most cities the department of 
 education is entirely separate from the other administrative 
 operations of the city government and is intrusted to an inde- 
 pendently chosen school committee. Individual cities, however, 
 may find it advantageous to group their administrative func- 
 tions in a different organization.^ The modern tendency is not 
 only toward the reduction of the number of these departments 
 but toward their closer correlation, in order that the work of 
 the city may be viewed as a whole and the different functions 
 not duplicated by separate departments. In a very few cities 
 
 iSee W. B. Munro, The Government of American Cities, p. 251 note; 
 also Nathan Mathews, Municipal Charters, pp. 54-55) for charts showing 
 various types of administrative organization.
 
 458 STATE AND MUNICIPAL GOVERNI^IENT 
 
 Method of 
 choosing 
 heads of 
 depart- 
 ments : 
 (i) Popular 
 election 
 
 (2) Election 
 by the city 
 council 
 
 (3) Appoint- 
 ment by the 
 mayor with 
 confirma- 
 tion by the 
 city council 
 
 (4) Appoint- 
 ment by 
 the mayor 
 without con- 
 firmation 
 
 (5) Selec- 
 tion by the 
 state 
 
 the heads of the administrative departments act as a cabinet 
 to the mayor, and under the city-manager type the compara- 
 tively small number of departments enables the city manager 
 to keep their work closely correlated and under his supervision. 
 In general, there are five ways by which the heads of admin- 
 istrative departments are now selected. In most cities one or 
 more departments have at their head officials chosen by popu- 
 lar election. This is particularly true in the case of the finan- 
 cial department, and the city auditors and the city treasurer 
 are quite commonly popularly elected. In a large number of 
 cities not of the first class the executive officers of some depart- 
 ments are still elected by the city council. In many cities 
 officials are appointed by the mayor subject to confirmation. It 
 is the usual traditional method adopted when popular election 
 proved unsatisfactory, but, as has been pointed out, it has 
 resulted in a method of shifting responsibility rather than in 
 efficient administration. Appointment by the mayor without 
 confirmation is the method which is followed in most of the 
 larger cities and is increasing in popularity. It concentrates 
 the responsibility directly upon the mayor and enables him 
 through his power of appointment to insure a consistent policy. 
 In a few cities the heads of some administrative departments 
 are chosen by the state authorities. According to this method 
 the city government has no voice in the selection of the heads 
 of its administrative departments. This has been tried in the 
 police administration of some of the largest cities, where the 
 police commission or commissioner was sometimes appointed 
 by the state legislature.' This method is a violation of the 
 principle of municipal home rule, but the desperate condition 
 of the cities to which it was applied necessitated heroic meas- 
 ures. Since the city government is deprived of all voice in 
 the choice of such an official, it not infrequently puts many 
 obstacles in his path and through control of the purse is able 
 to prevent a department from running smoothly .- 
 
 ^Thc governor appoints the commissioner of police for Boston; the 
 Maryland IcRislalurc elects the three police commissioners for Baltimore. 
 
 -In a few cities the state courts make appointments; (iic fifteen mem- 
 bers of the rhiladelphia board of education arc appointed by the court
 
 ADMINISTRATIVE DEPARTMENTS 459 
 
 The head of an administrative department should be an ex- Quaiiflca- 
 pert in administration rather than in the affairs of the particu- heads of^ad- 
 lar department over which he presides. Technical experts are ™e°artmenr 
 necessary in the conduct of city affairs, but their place is not 
 at the head of the departments ; executive ability, personality, 
 wide vision, are more necessary than scientific knowledge of 
 the working of the departments. Thus, in a large city the 
 police commissioner must possess the foregoing qualities, while 
 the chief of police can be relied upon to apply his expert knowl- 
 edge in carrying out the directions of the commissioner. In 
 most cities administrative departments are manned by ap- 
 pointees chosen more or less according to the rules of civil- 
 service boards, but in only one instance (Boston) are the heads 
 of the administrative departments subject to approval by the 
 civil-service commission. The ordinary civil-service tests and 
 competitive examinations are not applicable to the choice of 
 the executive head ; few tests other than actual experience can 
 show executive ability, personality, and breadth of vision. Con- 
 sequently the ordinary practice in the United States is sound 
 in not requiring the appointment of the heads of departments 
 as the result of competitive examinations. Yet sad experience 
 has shown the necessity for devising some check upon appoint- 
 ment by the mayor. Too often the mayor regards the heads 
 of the departments as mere currency with which to pay his 
 political debts, and appoints a man for partisan service rather 
 than for executive ability. 
 
 The Boston plan has already been mentioned in connection Effect of the 
 with the appointing power of the mayor.^ Attention, however, upon ad- 
 should be called to it again in connection with its effect upon ^'paru^ents 
 the qualifications of the administrative departments. Briefly, 
 the Boston plan vests in the mayor the appointment of all 
 administrative officials, except the police commissioner with- 
 out the confirmation of the city council ; but it requires that 
 the civil-service commission — a state body appointed by the 
 
 of common pleas. See W. B. Munro, The Government of American 
 Cities, p. 247. Little can be said in favor of this mingling of judicial and 
 administrative duties. 
 iSee page 428.
 
 46o STATE AND MUNICIPAL GOVERNMENT 
 
 governor — shall certify that the mayor's candidate is qualified 
 for the post by training or experience. It should be noted that 
 this plan is not in any sense competitive. There is no obliga- 
 tion either upon the mayor or upon the civil-service commission 
 to appoint or certify to the appointment of the best candidate, 
 but only of one who is fitted "by education, training, or experi- 
 ence to perform the duties" of the office. It must be admitted 
 that this plan is a violation of the principle of complete home 
 rule in that it restricts the choice of the mayor. On the other 
 hand, the responsibility still rests with the mayor, for he is the 
 appointing authority and is checked only from making appoint- 
 ments which are obviously unfitting. During the time this plan 
 has been in operation it has protected Boston from the worst 
 type of political appointments even if it has not given the best 
 kind of administrative heads. Even this little, however, should 
 be counted to its credit. The Boston plan has not been adopted 
 in city-manager cities, probably because the city manager is 
 supposed to be above political influence and his success de- 
 pendent upon the administration of the various departments. 
 Yet it is somewhat remarkable that other cities, in attempts to 
 reform municipal administration, have not adopted something 
 analogous to the Boston plan. 
 
 Terms of No fixed term can be laid down for the heads of departments. 
 
 departments Much depends upon the nature of the work the department is 
 called upon to perform. Where such work involves a program 
 extending over considerable time, the head of the department 
 should be given opportunity to demonstrate his ability in carry- 
 ing out this plan. In general, it may be said that the terms of 
 department heads are too short and that the incumbent is not 
 given sufficient opportunity either to familiarize himself with 
 the work of his department or to put through a program of 
 work or reorganization. Under the ordinary types of munic- 
 ipal framework indefinite terms are not favored, as they tend 
 to encourage interference on the part of the city govern- 
 ment and attempts to curry favor on the part of the incum- 
 bent. Less objection can be made to indefinite terms under the 
 city-manager type of government. The city manager himself 
 h(jl(ls his office for no fixed term; since he has the full and
 
 ADMINISTRATIVE DEPARTMENTS 461 
 
 unrestricted power of appointment of the heads of departments, 
 together with the power of removal, there seems no reason why 
 such department heads should not serve during pleasure. 
 
 There are almost as many methods for the removal as there Removals 
 are for the appointment of administrative officers. Where the 
 administrative officer is chosen by popular election, he cannot 
 be removed during his term except for grave misconduct, un- 
 less the system of popular recall is in vogue. Where the officer 
 is chosen by the city council, the council may usually suspend 
 or remove the official. If the mayor and council share in the 
 appointment, the concurrence of both is necessary in order to 
 remove. In those cities where the mayor alone appoints he is 
 usually given the power of removal, although a public hearing 
 may be demanded. In Boston, where the mayor appoints with 
 the consent of the civil-service commission, he has the sole 
 power of removal. The whole tendency is to surround removal 
 with restrictions sufficient to prohibit unjust and capricious 
 removals, although it must be admitted that these restrictions 
 are of little avail. As Professor Munro has well pointed out,^ 
 the only effective security against unjust removals is tradition 
 backed by active public opinion. 
 
 The salaries paid to heads of administrative departments are salaries 
 far below those paid in private business to executives charged 
 with similar functions. American administrative officials, how- 
 ever, receive far higher salaries than those in England or on the 
 Continent for similar work. But abroad there is more fixity 
 of tenure, a general willingness on the part of the municipali- 
 ties to retain a competent administrator, and a contentment on 
 the part of the administrator with his profession, which makes 
 for permanent tenure. In the United States the term of office 
 is short, the tenure uncertain, the reward in private busi- 
 ness far higher. So much higher are the salaries in private 
 business that the voters would not tolerate similar salaries in 
 municipal affairs. 
 . A much-debated question in the organization of administra- 
 tive departments is whether they shall be headed by a single 
 commissioner or by a board. No hard and fast rule can be 
 iThe Government of American Cities, pp. 249-250.
 
 462 STATE AND IVIUNICIPAL GOVERNMENT 
 
 organiza- laid dovvn. Some types of administrative work require the 
 partments: direction and supervision of a single official ; in others a group 
 boards or q£ individuals may best represent public opinion.^ A commis- 
 sioners sioner is obviously best adapted for departments like the police, 
 fire, and law departments, while in other fields — particularly 
 where racial and religious prejudices or traditions are involved 
 — public sentiment, if not efficiency, is better satisfied with the 
 administration of a board. Thus public libraries, poor relief, 
 and schools are commonly administered by a board. If the 
 system of partial renewal is applied to the board, there is the 
 opportunity of insuring continuity, which might be sacrificed 
 in the case of a single commissioner. Again, the board system 
 has something in its favor on the score of immediate economy. 
 If the department is headed by a single commissioner he must 
 be paid an adequate salary, for he is supposed to give his entire 
 time to the administration of the affairs of the department. 
 If, however, the administration is shared by a board which 
 employs the requisite expert, the salary of an executive is nom- 
 inally saved to the city. One of the best examples of the use 
 of a board with an expert is found in the school boards of the 
 smaller and middle-sized cities. It should be emphasized, how- 
 ever, that the board system is only successful when the board 
 employs an agent who is more or less of an expert. In such 
 cases — as in the case of the board of education, the board of 
 public health, and, in some cities, the board of public works — 
 the board directs the formulation of the policies and the expert 
 carries them out. 
 
 Under the old type of mayor-and-council organization few^ 
 arrangements were made for a correlation of the whole work of 
 departments ^j^g various departments. It has thus happened that the sewer 
 department in a city has been known to let the contract for 
 the construction of a sewer at the same time that the highway 
 department had begun to raise the grade of the same street. 
 Under the system of the responsible mayor, particularly in 
 those cities where the heads of departments served as a mayor's 
 cabinet, much more attention is paid to the correlation of the 
 work of the various departments. Yet even in these cities much 
 ^Sec W. B. Munro, The Government of American Cities, pp. 252-257. 
 
 Correlation 
 of adminis- 
 trative
 
 SUBORDINATE OFFICIALS AND EMPLOYEES 463 
 
 remains to be done along this line. According to the original 
 idea of the commission form of government, this correlation was 
 provided. Under the city-manager plan it is not only provided 
 but actually enforced through the supervisory power of the 
 city manager. 
 
 Subordinate Officials and Employees 
 The work of an administrative department is carried on not subordi- 
 
 . ,,. T rr^i . nates in 
 
 by Its head but by his subordmates.^ The city treasurer may an adminis- 
 be the responsible financial officer of the city, but his clerks department 
 have the actual handling of the money and keep the books. 
 The chief law officer depends to a large degree upon his subordi- 
 nates for drafting papers, such as contracts, and preparing 
 opinions concerning the legality of a proposed measure. Only 
 in the smallest cities do the administrative officials perform 
 these functions themselves, and even in these cities they are fre- 
 quently assisted by subordinates. The latter may vary in tech- 
 nical expertness and skill, from the city engineer and sewage 
 expert to the man who digs ditches and the clerk who makes 
 out the tax lists. The city is dependent for the actual per- 
 formance of its functions not upon the heads of departments 
 but upon minor officials and employees. 
 
 The organization of administrative departments varies from Organiza- 
 city to city and between departments in the same city. In adminis- 
 theory, at least, there is at the head of each department an Je^pa^tment 
 officer or a board who assumes all responsibility and who directs 
 the work of the department. Its policy may be determined by 
 the city council or by popular vote, but, in theory at least, the 
 head of the department is solely responsible for accomplishing 
 the work of his department. Everywhere theoretically, and 
 actually in the large cities, the head of the department is the 
 general executive, and he should be assisted by some deputy or 
 subordinate possessing expert and technical skill. In the ab- 
 stract this deputy furnishes the expert knowledge and gives the 
 technical directions necessary in order to put through the work 
 
 iThe best brief treatment of this subject is found in W. B. Munro's 
 "The Government of American Cities" (3d ed.), chap, xii, which gives 
 bibliographical references.
 
 464 STATE AND MUNICIPAL GOVERNMENT 
 
 of the department. Thus the city engineer is responsible for 
 the general plans of the engineering department, while subordi- 
 nate officials, like surveyors or draftsmen, prepare the actual 
 plans and see that the workmen carry them into effect. In 
 large departments there are several such deputies, sometimes of 
 coordinate rank, but often subordinate to one another. Below 
 these deputies are heads of bureaus, supervisors, or foremen, 
 and finally the actual working force of the department engaged 
 in clerical or manual labor. Directions and orders ought to de- 
 scend from the head to the workmen ; appeal from the workmen 
 should be to the head, and the department should be self- 
 contained. Practically — as will be shown and as common knowl- 
 edge acquaints us — :the departments are not self-contained. 
 Number of The number of persons who are on the salary list or pay rolls 
 employees ^^ ^ large city is enormous. Professor IMunro^ has estimated 
 that 8 per cent of the voting list in New York and 12 per cent 
 in Boston is so accounted for. But these numbers, large as 
 they are, hardly show the political influence of these employees. 
 To these should be added their relatives and friends ; and, since 
 experience has shown that municipal employees are generally 
 active in politics. Professor Munro estimates that the political 
 strength of municipal employees in large cities is somewhere 
 between one sixth and one eighth of the entire electorate. This 
 probably constitutes the largest single class liable to bring 
 political influence to bear on municipal administration. 
 Politics and It is a legitimate function of politics to control both the 
 tion lawmaking and law-executing bodies of the state or city ; - first, 
 
 to determine what the law shall be and, second, to keep the 
 administrative officers in harmony with the lawmaking officers. 
 Where political action goes beyond this and invades the admin- 
 istrative field, it attempts a function which does not naturally 
 belong to it and produces, as experience has shown, disastrous 
 results. Unfortunately this is exactly the field in which politics 
 has been too often active in municipal government. Not con- 
 tent with determining the composition and thereby the policy 
 of the city council, political parties and, to a greater extent, 
 
 iThc Government of American Cities, p. 266. 
 
 ^F. J. Goodnow, Politics and Administration, chap. ii.
 
 SUBORDINATE OFFICIALS AND EMPLOYEES 465 
 
 political machines, bosses, and leaders have intervened in the 
 organization and function of administration. The responsibility 
 which the head of a department may properly be asked to bear 
 is dependent upon or should be measured largely by his author- 
 ity. If his control of his subordinates is weakened through the 
 possibility of political appeal and the interference of the boss or 
 party leader, his power and influence are correspondingly weak- 
 ened. This is exactly what has happened again and again in 
 municipal administration. Deputies and subordinates and em- 
 ployees were appointed not for reasons of ability or efficiency 
 but because of political influence. They were retained on the 
 pay rolls not because of their worth but from some real or 
 fancied political necessity. The discipline and control of the 
 head of the department or of his deputies were constantly being 
 weakened by the appeal to and the intervention of some politi- 
 cal leader. To say nothing of corruption, there is an almost 
 incalculable cost to the city for incompetence and inefficiency 
 resulting from the improper and unjustifiable commingling of 
 politics and administration. 
 
 One attempt to remedy this evil has been along the lines Methods of 
 of divorcing city government from party organizations. Mem- J^ntT^' 
 bers of the council and city officials were nominated by petition '') no°- 
 
 •' ^ r- partisan 
 
 or at nonpartisan primaries and elected without the party pontics 
 designation. It was hoped that this would free municipal ad- 
 ministration from interference by partisan organizations. But 
 the nonpartisan character of the officers so elected was nominal 
 rather than real, and under other names and by different means 
 the same influences were at work. 
 
 To weaken the influence of party politics, particularly as it (2) changes 
 was manifested in the mayor-and-council type of government, structure of 
 the powers of the mayor were increased at the expense of the grnment 
 council. He was allowed to appoint the heads of departments 
 without confirmation by the council, and, in theory at least, the 
 heads of these departments were responsible solely to him. This 
 was a step in advance, but when the council was denied a legal 
 method of control over the department heads, it too often sought 
 extra-legal influence, and even in departments of the type just 
 described party politics played a great part in administration.
 
 466 STATE AND MUNICIPAL GOVERNMENT 
 
 (3) commis- The commission system was a frank admission that poHtics 
 ^on^govern- ^^^ administration could not be kept separate, and each mem- 
 ber of the commission which corresponds to the city council 
 headed an administrative department. The theory was that a 
 commission would function as a group of heads of depart- 
 ments, yet actually experience too often shows that the com- 
 missioners, like the old city council, intervened for political 
 reasons in the administration of the department of a single 
 
 • commissioner. 
 
 (4) City The city-manager type of municipal government attempts a 
 manager radical divorce of administration from politics. The council 
 
 controls by means of determining the policy, making the appro- 
 priations, and choosing the manager. Beyond that the admin- 
 istrative officers — whether the city manager or his subordinates 
 — are in theory at least given a free hand. Whether they 
 will continue to be free from improper political influence is 
 a question, and it may be that even under the city-manager 
 form, as under the responsible-mayor type, the members of 
 the city council will seek extra-legal methods of influencing 
 the administration. 
 Selection of Until the last quarter of the nineteenth century there were 
 ^daifand ^^^^ principles determining the selection of municipal officials 
 employees ^j^^j employees. In general, party regularity and party neces- 
 sities governed the choice. The spoils system was carried even 
 further in municipal government than in the state and nation. 
 With officials and employees so selected, the improper political 
 influences just described dominated all departments. The great 
 problem in bettering municipal administration lies in the im- 
 provement of the city officials and employees. The greatest 
 step taken toward its direction has been to adapt the principles 
 of civil-service reform to city appointments. 
 Types of In general there are three types of municipal civil-service 
 
 ci vil-sGrvicc • • 
 
 commis- commissions : In the first the commission is selected by the 
 sions mayor or city council and apj^lies the ordinary tests and rules 
 
 to municipal appointments. The great disadvantage of this 
 system is that a spoilsman mayor may appoint a compliant 
 commission, which, under the guise of applying tests and rules, 
 will enable the organization to fill the municipal offices with
 
 SUBORDINATE OFFICIALS AND EMPLOYEES 467 
 
 appointees under the protection of the civil-service system. 
 Examples of this type are found in Philadelphia and Chicago. 
 In the cities of New York State the mayor appoints the civil- 
 service commissions, whose work is supervised by the state 
 civil-service commission appointed by the governor. This plan 
 attempts to combine local administration with state super- 
 vision. Unfortunately the supervision given by the state com- 
 mission in New York State is not sufficiently active or severe 
 in dealing with evasions. 
 
 Since 1884 the cities in Massachusetts have been under a TheMassa- 
 state civil-service commissioner. This commissioner and his p^T"^ 
 department prepare examinations and tests for all offices and 
 employees which are subject to the law. The examinations are 
 administered and corrected by state authorities, and the results 
 certified to the cities. The advantage of this system is that it 
 removes entirely from the field of local politics the appoint- 
 ment and control of the examining commission. It is more 
 economical in that it serves the entire state and saves the dif- 
 ferent cities the expense of maintaining their own commissions. 
 It is, however, contrary to the principles of home rule, yet the 
 invasion of this field is so slight and the results obtained so 
 excellent that the actual advantages seem greatly to outweigh 
 the theoretical disadvantages. 
 
 The principles of municipal civil service are similar to those Principles of 
 in the state and national governments. Appointments are com- ""n se^rtice 
 petitive, dependent upon passing certain tests; removals can 
 be made only for cause; and partisan activity and partisan 
 assessments are prohibited. Civil-service reform has been most 
 sharply criticized on the ground that the tests were too academic 
 and were inadequate guides of administrative or executive 
 ability. That some of the earlier examinations were open to 
 this objection may be admitted, but the modern method of . 
 combining a written examination with a physical test and, as 
 in some cities, posting the names of the candidates and asking 
 for recommendations or criticisms has done much to remove 
 these objections. It is true that neither written nor physical 
 examinations are complete indications of the executive ability 
 of a deputy in an administrative department or of the bravery
 
 468 STATE AND MUNICIPAL GOVERNMENT 
 
 Promotion 
 
 Dismissal 
 
 Pensions 
 
 and resourcefulness of a policeman, but they furnish evidence 
 of such characteristics. Although the competitive system may 
 not always produce the best type of officials and employees, 
 it at least keeps out the worst. 
 
 Logically promotion, like appointment, should go by merit, 
 and this should be determined by tests kept in the various 
 departments. This system is too seldom adopted ; promotions 
 are made either by favor or as the result of long tenure. 
 
 Misfits and improper appointments may be made under the 
 civil-service competitions as under any other plan, and provi- 
 sion must be made for the removal of such appointees. As a 
 rule, all the law requires is that the dismissing officer shall show 
 cause for the removal of a civil-service appointee, although 
 in some instances a public hearing is necessary. In the vast 
 majority of cases the removal is sustained. Yet the tenure of 
 officers and employees appointed under the civil-service system 
 is more secure than the mere reading of the law would show. 
 The heads of departments do not relish public hearings, and 
 the appointee can frequently bring to his aid a considerable 
 section of public opinion which will make it unpleasant, if not 
 politically unwise, to remove even an inefficient officer. 
 
 Few American cities provide pensions for their employees, 
 and, even in those cities which do, the system is ordinarily 
 confined to school-teachers, policemen, and firemen. The cities 
 are placed between the horns of a most unpleasant dilemma. 
 Public opinion is quite ready to condone the carrying of super- 
 annuated employees on the city pay roll and would probably 
 condemn a wholesale discharge of faithful employees who have 
 passed the age of efficient service, with the result that the 
 work of the city is slowed up. Certain positions, like those on 
 the street-cleaning department, are sometimes considered as a 
 measure of outdoor poor relief, with little regard to the best 
 interests of the city ; the younger and more efficient employees 
 have to follow the pace set by the older. On the other hand, 
 the thought of saddling a city with a pension system for all its 
 employees does not appeal to the taxpayers. In general, the city 
 laborers are in usual times paid higher wages than is ordinary 
 unskilled labor, and for the state or municipality to establish
 
 SUBORDINATE OFFICIALS AND EMPLOYEES 469 
 
 a pension system in behalf of such a favored class and to 
 neglect the more numerous and less fortunate seems unfair. 
 
 Until recently the question of the organization of city em- Labor unions 
 ployees has not been vital. Associations for self-help and im- empio'yees 
 provement among the employees were encouraged, and even 
 organizations to increase pay were tolerated. Recently, how- 
 ever, these organizations have attempted to affiliate with the 
 American Federation of Labor and to utilize the right to strike 
 and sometimes to threaten a sympathetic strike in order to 
 enforce their demands or the demands of their associates. This 
 was brought in a startling manner to the public attention in 
 the Boston police strike of 1919, where it was shown that cer- 
 tain classes of city employees — in this instance the police — 
 could not with due regard to the safety of the community be 
 allowed to refuse to perform their duties. In like manner the 
 firemen of a city, the employees of the city's waterworks, and 
 other bodies of employees may form a class which because of 
 the functions they perform may be debarred from the right to 
 strike — a right which the courts have upheld in other employ- 
 ment. The question is by no means an easy one to decide, 
 but analogies may be found in military organizations, where a 
 soldier during his term of enlistment assumes additional respon- 
 sibilities and foregoes rights which are ordinarily exercised by 
 other classes of citizens. Thus it might reasonably be required 
 of certain classes of municipal employees that they forego the 
 right to strike because of the nature of their work.
 
 CHAPTER XXVII 
 
 MUNICIPAL ADMINISTRATION. SAFETY 
 
 The Administration of the Police, Fire, and 
 Health Departments 
 
 I. The Police 
 
 Definition The phrasc "police power" is extremely elastic and difficult 
 ""police"" to define comprehensively. In the widest sense it includes all 
 the powers of government ; in a narrower sense it has been 
 used to include those powers which deal with internal adminis- 
 tration apart from finance, military, judicial, or foreign affairs.^ 
 In the ordinary use of the term in municipal government, 
 "police" has come to designate one agency for the prevention 
 of disorder and crime and the suppression of violations of law. 
 Even in this restricted sense the police functions are of three 
 sorts: legislative (that is, the functions exercised by the city 
 council in passing ordinances), judicial (that is, the enforce- 
 ment of police laws and ordinances by the police-court justices), 
 and, finally, the protection of public safety and the prevention 
 of the violation of law which is performed by the police officers. 
 The discussion in this chapter deals largely with the so-called 
 administrative police, or the organization and functions of the 
 police department. It should be remembered, however, that 
 these functions and this organization are conditioned and deter- 
 mined both by the legislative police power, which is exercised 
 by the state legislature or the municipal council, and by the 
 judicial police power, which the judges exercise in dealing with 
 the offenders brought before them by the administrative police. 
 The functions and duties of the police department are mani- 
 fold. Originally it was little more than to prevent disorder 
 
 1 For a brief discussion of (lie use of tiie word "police" see Goodnow 
 and Bates, Municipal Government, pp. 258-260. 
 
 470
 
 SAFETY 471 
 
 and crime. But with the growth of the cities and (particularly The func- 
 in America) with the attempt to regulate minutely many dutles^of 
 things by ordinance their duties have greatly increased. More- ^^^ p°^'*^^ 
 over, in modern times the functions of the police have extended 
 from merely that of repression to prevention, until today they 
 are charged with a variety of duties only vaguely under- 
 stood by the average citizen.^ A good idea of these duties 
 may be gathered from the charter of Greater New York, which 
 prescribes the following duties : - 
 
 It is hereby made the duty of the police department and force, at 
 all times of day and night, and the members of such force are hereby 
 thereunto empowered, to preserve the public peace, prevent crime, 
 detect and arrest offenders, suppress riots, mobs and insurrections, 
 disperse unlawful or dangerous assemblages, and assemblages which 
 obstruct the free passage of public streets, sidewalks, parks and 
 places ; protect the rights of persons and property, guard the public 
 health, preserve order at elections and all public meetings and assem- 
 blages ; regulate, direct, control, restrict, and direct the movement 
 of all teams, horses, carts, wagons, automobiles and all other vehicles 
 in streets, bridges, squares, parks, and public places, for the facilita- 
 tion of traffic and the convenience of the public as well as the proper 
 protection of human life and health, and to that end the police 
 commissioner shall make such rules and regulations for the con- 
 duct of vehicular traffic in the use of the public streets, squares, 
 and avenues as he may deem necessary, the violation of which rules 
 and regulations shall be a misdemeanor punishable by not less than 
 two or more than thirty days' imprisonment, or by a fine of not less 
 than five or more than fifty dollars, or both ; remove all nuisances 
 in the public streets, parks, and highways ; arrest all street mendi- 
 cants and beggars ; provide proper police attendance at fires ; assist, 
 
 lA recent and authoritative book on the American police is Ray- 
 mond B. Fosdick's "American Police System." In connection with this, 
 "European Police Systems," by the same author, should also be studied. 
 L. F. Fuld's "Police .A.dministration" is a critical study of police organi- 
 zations in the United States and abroad. William McAdoo, Guarding a 
 Great City, describes the organization and operation of the New York 
 police system, of which he was commissioner. W. B. Munro, Principles 
 and Methods of Municipal Administration, chap, vii, Goodnow and 
 Bates, Municipal Government, chap, xi, and J. A. Fairlie, Municipal 
 Administration, chap, viii, give shorter accounts of the same problems. 
 
 -Sect. 315.
 
 472 STATE AND MUNICIPAL GOVERNMENT 
 
 European 
 
 and 
 
 American 
 
 conceptions 
 
 of police 
 
 functions 
 
 advise, and protect emigrants, strangers, and travelers in public 
 streets, at steamboat and ship landings, and at railroad stations ; 
 carefully observe and inspect all places of public amusement, all 
 places of business having excise or other licenses to carry on any 
 business ; all houses of ill-fame or prostitution, and houses where 
 common prostitutes resort or reside ; all lottery ofifices, poHcy shops, 
 and places where lottery tickets or lottery policies are sold or offered 
 for sale ; all gambling-houses, cock-pits, rat-pits, and public common 
 dance-houses, and to repress and restrain all unlawful and disorderly 
 conduct or practices therein ; enforce and prevent the violation of all 
 laws and ordinances in force in said city ; and for these purposes, to 
 arrest all persons guilty of violating any law or ordinance for the 
 suppression or punishment of crimes or offenses. 
 
 The duties just described are those generally performed by 
 the police force the world over. In Europe, moreover, the 
 police have the additional function of exercising close surveil- 
 lance over both the inhabitants and the visitors of a city. In 
 one sense this increases their duties, but from another point 
 of view it makes the detection of criminals easier, since through 
 the elaborate system of registration the police of the European 
 countries may put their hands upon almost anyone at almost 
 all times. In America the police have a more difficult task 
 than is assigned to the police in Europe. This arises from the 
 failure on the part of the legislative bodies in the United States 
 to distinguish clearly between vice and crime. This is well- 
 expressed in the following words : 
 
 It is too commonly believed in this country that once we have 
 determined that an action is vicious, it necessarily follows that such 
 action should be criminally punished. Whether an action is believed 
 to be vicious or not depends, of course, upon a variety of things. But 
 whatever the criterion of morality or immorality may be, the public 
 belief in its immoral character is the result of the standards, some- 
 what subjective in character, of the majority of individual men. 
 Now, whether an act shall be a crime or not should be (.lependent 
 simply upon the ciucstion. Is it socially expedient to attempt to 
 punish such act criminally ? The morality of the act has little, if any- 
 thing, to do with thf matter. An action may, from the viewpoint of 
 subjective individual morality, be absolutely innocent, and yet it may 
 properly be a crime. Thus from the individualistic moral point of
 
 SAFETY 473 
 
 view, it is an innocent action for a man to drive on either side of a 
 city street. Yet the government may properly determine quite arbi- 
 trarily that it shall be a crime to drive on either the left or the right 
 side of the street. Again, an action may be from the viewpoint of 
 individualistic morality most vicious in character. But its vicious- 
 ness may not result in making it a crime. Mere sensual indulgence in 
 any form is vicious. But the mere fact of its viciousness is not sufifi- 
 cient to justify the government in making it criminal. 
 
 The only justification for punishing an act criminally is that the 
 welfare of society requires that it should be so punished. Now it may 
 well be that the difficulty of punishing some particular act may be so 
 great, and the procedure necessary to secure its punishment may be 
 so arbitrary, that the social welfare is less subserved by the attempt 
 to punish it than it is by leaving it alone, no matter how vicious it 
 may be. By letting it alone the people in their governmental organ- 
 ization do not countenance it. They simply declare it is inexpedient 
 to attempt to punish it criminally. Take, for example, the case of 
 gambling. The state may determine that it is inexpedient to make mere 
 gambHng an offense. This is the general rule in the United States as 
 to private gambhng. No one commits a crime in gambling. The state 
 does, however, say that it will not permit its power to be exercised to 
 recover a gambling debt. The state often says also that keeping a 
 public gambling table is a crime. It does so because it believes, or 
 the majority of the people believe, that keeping such a gambling 
 table has such bad effects on society that it may properly be made a 
 crime. But suppose, after numerous and persistent efforts to sup- 
 press the keeping of public gambling tables the state came to the con- 
 clusion that these attempts led, through the corruption of the police 
 force and the arbitrary invasion of the right of personal liberty, to a 
 greater social harm than the keeping of gambling tables in such a way 
 that no scandal or disorder was caused thereby — suppose, then, that 
 it ceased to attempt to punish criminally the mere keeping of such a 
 table, it could not fairly be said that it countenanced gambling.^ 
 
 The difficulties arising from this confusion of vice and crime Difficulties 
 are accentuated in the United States by the diverse character ponce ad- 
 of the city populations. In European cities the populations are ""^istration 
 more homogeneous, and public opinion is more generally agreed 
 on standards of conduct. In the large cities of the United 
 States, as has been seen, a large percentage of the population is 
 
 iGoodnow and Bates, Municipal Government, pp. 291-292.
 
 474 STATE AND MUNICIPAL GOVERNMENT 
 
 foreign-born and a still greater percentage comes of foreign- 
 born parents. These groups are by no means agreed as to the 
 standards of moral conduct, particularly in the field of personal 
 behavior. This divergence of standards is still further em- 
 phasized when it is remembered that many of the laws regu- 
 lating conduct are framed not by the lawmaking body of the 
 city council, but are imposed upon the city by the state legis- 
 lature, in which the rural element has a large and sometimes a 
 decisive voice. To add to these difficulties, party politics all 
 too frequently control to a greater or less extent police action 
 and sometimes the enforcement of municipal ordinances and 
 state laws. Sometimes certain interests acting through party 
 organizations obtain police protection or immunity from police 
 prosecution for their own advantage contrary to the formal 
 law. Thus, in the United States the organized police force of 
 a great city is not infrequently called upon to enforce laws 
 which a large part of the population opposes and to regulate 
 personal conduct according to standards which are not accepted. 
 Moreover, their action is constantly being hampered by the 
 influence which political parties and leaders are able to wield. 
 Develop- During the colonial era the police functions were usually in- 
 
 poiice in trusted to Unpaid watchmen and constables. The householders 
 states**^^ in some places were required either to perform watch duty or 
 to furnish a substitute, and even until the middle of the nine- 
 teenth century there were few paid officials in any American 
 city.^ In 1844 New York provided for a single body of police 
 consisting of eight hundred men under a chief appointed by 
 the mayor with the consent of the council, with captains and 
 officers appointed annually from the wards. This was altered 
 in 1853, and the mayor, recorder, and city judge were estab- 
 lished as a board of police commissioners with full power to 
 appoint the members of the force, who held their positions 
 during good behavior. Other cities followed the example of 
 New York: in 1850 Philadelphia organized a police force of 
 eight hundred ; in 1854 the Boston police force was established, 
 and in 1857 that of Baltimore. The organization and the 
 
 'J. A. Fairlie, Municipal Administration, pp. 132-134; Goodnow and 
 Bates, Munici[)al Gitviinnniit, jip. 280-282.
 
 SAFETY 475 
 
 uniforms were largely copied from the London system, and the 
 movement rapidly extended to all the principal cities in the 
 United States. By and large the small cities do not have a force 
 proportionately as large as the larger cities, nor is such a force 
 necessary. The need for police administration increases progres- 
 sively with the size of the city. The largest cities in the United 
 States, however, have smaller police forces in proportion to their 
 population than do the cities of Great Britain or the Continent.^ 
 
 Until the middle of the nineteenth century the city police state versus 
 
 . IT, ''*<^^' control 
 
 were considered purely local officers and entirely under the of the police 
 control of the city authorities, even though the courts have 
 held that "police officers can in no sense be regarded as agents 
 or servants of the city. Their duties are of a public nature." - 
 The decline of the city councils and their increasing inefficiency 
 led the state to undertake in many cities the supervision if not 
 the actual control of the police force. Thus, at one time or 
 another the control of the city police was taken entirely out of 
 the hands of the city government in Baltimore, Boston, Chicago, 
 Cleveland, Detroit, New York, St. Louis, and many smaller 
 cities. Of the largest cities only Baltimore, Boston, and St. 
 Louis are still subject to state control in police affairs. There 
 are many arguments in favor of the state control of police. 
 The first and most obvious is that the police officials are 
 engaged in enforcing state laws and are regarded by the courts 
 as state officials. A corrupt or inefficient police force may 
 render nugatory a state law in a large city. Again, it has been 
 claimed, with considerable reason, that state administration is 
 more efficient and less corrupt than municipal administration. 
 This is true in some states, but its truth is by no means uni- 
 versal. It must be admitted, however, that in the three large 
 cities now under state control the police administration is far 
 more efficient than it was in the days when the city council had 
 full authority. State control, however, is not popular. It vio- 
 lates the principle of home rule for cities ; it is ordinarily more 
 expensive; and the fact that the preventive and repressive 
 
 ipor table see W. B. Munro, Principles and Methods of Municipal 
 Administration, p. 282. 
 
 -Buttrick V. City of Lowell, i Allen (Mass.) 172 (1861).
 
 476 STATE AND MUNICIPAL GOVERNMENT 
 
 (2) The com- 
 missioner 
 
 The chief of 
 
 police 
 
 functions of the police are beyond the authority of the city 
 council, which is called upon to appropriate money for their 
 support, not infrequently rouses bitter opposition. Although 
 there is little evidence which would point to the extension of 
 state control of police forces, it has been seen that there is a 
 decided tendency to establish state police and to appoint many 
 state officers exercising police functions within the cities.^ 
 
 There are two main types of police organization in cities in 
 the United States — the board and a single commissioner. At 
 one time the board organization was extremely popular, but 
 little can be said in its favor. Among the politicians it still 
 retains some of its popularity, for it gives the opportunity to 
 divide or share the patronage and to make political influence 
 effective. This is true especially in the so-called bipartisan 
 board. If in any department the city government demands 
 unity of authority and dispatch, it is in the police department. 
 Hence the general tendency is toward a police commissioner 
 and away from a board. The most successful commissioners 
 have not been drawn from the police department itself, but 
 have been laymen possessed of considerable administrative and 
 executive ability who have brought to their task a fresh point 
 of view. This is to be expected when it is remembered that 
 the functions and duties of the police are constantly being 
 extended. Professional control is found in the smaller cities, 
 which have not adopted the commission form of government. 
 There the direction of the police is nominally under a com- 
 mittee of the city council, but the actual control is in the 
 chief of police. 
 
 The chief of police is practically always a professional, 
 usually promoted from the ranks, and in many cities under 
 the regulations of the civil-service commission. In the largest 
 cities he is the means of communication between the commis- 
 sioner or board and the lesser members of the department. He 
 is not a policy-determining official, but his duties are mainly 
 executive and administrative, and he is responsible for the 
 discipline and efficiency of the force. In smaller cities, as has 
 been pointed out, the chief of police frequently is called upon 
 
 ^Sce page 171.
 
 SAFETY 477 
 
 to exercise the functions of the commission, for which he is 
 too often unqualified, because he brings to his task the point 
 of view of the professional officer. 
 
 In practically every city there is a police captain, who has other police 
 charge of the police station during certain hours of the day d) poiic'e 
 and is responsible for the discipline of the patrolmen in his ^^^pt^'is 
 precinct. His position is extremely important, as he not only 
 gives the tone to the force in his district but also is the 
 person before whom as a rule first offenders are brought. He 
 should have great firmness in dealing with his subordinates 
 and equal firmness and discretion in directing the subordinates 
 in their dealings with the public. In the largest cities the pre- 
 cincts, with their station houses and captains, are frequently 
 grouped into inspection districts under the supervision of a (2) The 
 higher officer known as the inspector, who is the medium of '"^^^'^ ""^ 
 communication between the commissioner, the chief of police, 
 and the precincts and who supervises and overlooks the police 
 work in his district. In many cities there is a grade below the 
 captain — the police lieutenants, who take charge of the station (3) Lieu- 
 
 . tenants 
 
 during the captam s absence and share with him the respon- 
 sibility for the administration of the district. At each station, 
 in most cities, there are several police sergeants. Where there (4) ser- 
 
 ' geants 
 
 are no lieutenants the sergeants take charge during the cap- 
 tain's absence. In the larger cities, however, their duties are 
 chiefly on the streets, supervising the work of the patrolmen 
 and seeing that their precinct is properly policed. 
 
 The mainstay of any police department consists of the (5)^Patroi- 
 patrolmen — the officers on the streets. They are the police 
 officials with whom the general public comes in contact, since 
 in many instances they are the only representatives of the 
 government whom large classes of the population know. In 
 many cases their word is law. Their duties, as has been seen, 
 are manifold and require great tact, courage, and wisdom in 
 their performance. Not infrequently a skillful patrolman can 
 change the whole tone of a block or section of the city by his 
 action. In most cities the patrolmen are now appointed as the 
 result of competitive examinations and hold office during good 
 behavior. These competitive examinations have frequently been 
 
 men
 
 478 STATE AND MUNICIPAL GOVERNMENT 
 
 criticized as poor tests of the characteristics most needed in 
 policemen ; that is, courage, discretion, cool-headedness. Few 
 of these quahties can be ascertained by written examinations, 
 but when these are supplemented, as is frequently the case, 
 by rigorous physical examinations the most unfit applicants 
 can be winnowed out. The civil-service examinations do pre- 
 vent the old type of inefficient political appointees and in many 
 instances have given a splendid force of men. The tenure of 
 the police officer is generally during good behavior, and since 
 he is under the protection of the civil-service regulations he 
 can be removed only for cause, which in some cities^ must be 
 capable of judicial proof. But in many cities he is removable 
 by the appointing power on a hearing. Promotion in many police 
 departments depends upon competitive examinations set by the 
 civil-service commission coupled with the officer's record. This 
 department is one of the few in city administration for which 
 pensions have been provided. Thus, in many cities the policemen 
 — in distinction from the employees of other departments — enter 
 upon a career which provides for promotion according to merit, 
 with increasing compensation, and a pension upon retirement. 
 Police On the Continent and in London special schools for the 
 
 training of policemen are established, and on the Continent 
 the force is generally recruited from the petty officers of the 
 army. In London the effort is made to obtain the recruits 
 from the country. Many American cities have a training 
 course for police recruits, and New York maintains a regular 
 school similar to those abroad. 
 Expenditure In the citics of ovcr 30,000 population the expenditure on 
 departments tl^c police departments in 1919 was $80,917,027. This amount 
 was exceeded only by the amount spent for schools. The pcr- 
 capita cost of the police departments of these cities was 
 $2.33. Cities having a population of over 500,000 expended 
 $44,699,180, or $3 per capita. Of these cities, as might be 
 expected. New York spent the greatest amount — $18,115,948. 
 But Boston, which expended only $2,768,949, had the highest 
 per-capita expense of all ($3.75). The smallest amount ex- 
 pended was by Los Angeles ($1,067,779), and the smallest 
 iln New York, for example.
 
 SAFETY 479 
 
 per-capita expense was in Cleveland (.I? 1.79). In cities having 
 a population of between 300,000 and 500,000 Buffalo spent the 
 largest amount ($1,566,912). It also had the highest per- 
 capita expense ($3.15). The smallest cost was in New Orleans 
 ($518,394), which also had the smallest per-capita expense.^ 
 
 2. The Fire Department 
 
 The loss in lives and property as the result of fire is enormous Fire losses 
 in the United States.- It is estimated that in the ten years united 
 between 1909 and 19 19 more than $2,500,000,000 worth of ^*^*^® 
 property was destroyed by fire; while in New York City 
 alone, during the same period, more than $100,000,000 worth 
 was so destroyed. This loss of property is sheer waste, which 
 falls not simply upon the owner of the property but is dis- 
 tributed throughout the community and shared by everyone 
 living in it. The loss of life is also appalling." It is estimated 
 that between the years 1906 and 19 16 thirty thousand people 
 perished and nearly twice as many were seriously maimed. 
 Not only are the lire losses enormous in total, but they are 
 greater per capita in the United States as a whole than in any 
 other country, and the per-capita loss in cities is greater in the 
 United States than in European cities.* It is thus evident that 
 
 iSee Department of Commerce, Bureau of the Census, Financial Sta- 
 tistics of Cities (1919), p. 204. 
 
 -W. B. Munro, Principles and Methods of Municipal Administration, 
 chap, viii, and J. A. Fairlie, Municipal Administration, chap. viii. 
 
 3" If all the buildings burned in the United States in any single year 
 were placed side by side they would make an avenue of desolation all 
 the way from Chicago to New York, and at every three-quarters of a 
 mile someone would be found burned to death." In the past ten years 
 enough buildings have been burned in this country to line a boulevard 
 reaching from ocean to ocean. In the same decade, moreover, fire has 
 destroyed thirty thousand lives and maimed more than twice as many 
 persons. It has cost us more in killed, wounded, and missing than 
 Antietam and Gettysburg put together.— W. B. Munro, Principles and 
 Methods of Municipal Administration, p. 319. 
 
 4The fire loss in Chicago was ten times that of Berlin. The per-capita 
 loss in some years in Cincinnati has been more than five dollars, while 
 in Frankfort on the Main, a city of about the same size, it is about 
 forty cents. See W. B. Munro, Principles and Methods of Municipal 
 Administration, p. 317.
 
 48o STATE AND MUNICIPAL GOVERNMENT 
 
 Fire 
 prevention 
 
 Methods 
 of fire 
 
 prevention : 
 (i) Fire 
 limits 
 
 (2) Fire- 
 resisting 
 construction 
 
 protection against fire is a necessary function of municipal 
 administration in guarding the safety of its citizens. 
 
 One reason why the loss of fire is less in England and on the 
 Continent than in the United States is because far more effort 
 is expended on fire prevention. In Greater New York there 
 are several times as many fires as there are in Greater London, 
 although London has a larger population and a greater area. 
 This is in part due to the character of buildings both in Eng- 
 land and on the Continent ; owing to the high price of wood, 
 construction abroad is generally of brick, stone, or some fire- 
 resisting material, and the use of wood is reduced to a mini- 
 mum. As a result, although there are many fires in London 
 and in continental cities, they seldom gain much headway and 
 are easily confined to the premises in which they start. A sec- 
 ond reason for the smaller number of fires abroad is to be found 
 in the laws which penalize negligence and make the tenant or 
 owner of the building liable for damages to others from fires 
 which have started in their premises. More care, moreover, 
 is taken in determining the cause of fires and in fixing the 
 responsibility. In the United States the work of fire preven- 
 tion has been sacrificed for the work of fire protection. Never- 
 theless, beginning with 191 1, in Pennsylvania, several states 
 made provisions for a centralized bureau for fire protection, 
 and both state and city are becoming increasingly alive to the 
 necessity of education and investigation in this field. 
 
 The most common method of fire prevention is to establish 
 fire limits ; that is, zones or sections of the city within which 
 only fireproof or fire-resisting buildings may be erected. The 
 laws do not require the destruction of old wooden buildings, 
 but simply provide that all new buildings must be constructed 
 of fire-resisting materials ; and if extensive changes are made 
 in old buildings, these alterations shall conform with certain 
 regulations. Closely parallel to and a part of the method of 
 prescribing fire limits is the classification of the "construction 
 of buildings. Buildings are rated and their construction pre- 
 scribed in certain classes, dependent upon their fire-resisting 
 possiliilities. In buildings of the first class fire-resisting mate- 
 rial must be used throughout, and the use of wood is permitted
 
 SAFETY 481 
 
 only for floor surfacing, trimmings, windows, and doors. In 
 second-class construction, which is ordinarily applied to in- 
 dustrial and mercantile buildings outside the danger zone, the 
 floors, roofs, and partitions may be of wood, although the 
 wooden roof must be covered with some fire-resisting material. 
 In buildings of the third class, which would include private 
 dwellings and small apartment or tenement houses, the use of 
 wood is generally allowed throughout, although the roof should 
 be covered with fire-resisting material, and fire stops or walls 
 may be required between the different apartments. 
 
 Fire prevention is also obtained by requiring a special method Special 
 of construction based upon the use to which the building is to ^ gre ^ 
 be put. Thus, there is generally a special set of regulations goy^fn[n°° 
 governing theaters, which require an asbestos curtain, frequent (1) Theaters 
 hose outlets, and sometimes a sprinkler system. For factories (2) Factories 
 special construction is also demanded, varying from the so- 
 called fireproof construction, which provides for water-tight 
 floors, fire-doors, shutters of metal, and windows of wired glass, 
 to the so-called slow-burning construction, which depends for 
 its protection on the size of the wooden beams and the fre- 
 quency of fire stops. In devising rules for fire protection for 
 tenements a serious economic question arises. If the regulations 
 require that tenements shall be absolutely fireproof, building (3) Tene- 
 will be discouraged, crowded and improper housing conditions 
 perpetuated, and the rent raised to an almost prohibitive figure 
 for the tenants. Investigations have proved that the majority 
 of danger spots in tenement houses are the cellars, hallways, 
 and roofs. Thus a proper and perhaps not inadequate code 
 would require that the cellar and first floor of a tenement 
 house be practically fireproof, that the hallways be specially 
 protected from fire connection with the living rooms, and that 
 the roof be of fire-resisting material. 
 
 During the colonial period protection against fire was under- Fire 
 taken in villages and small towns and even cities by volunteer ^"^^ ^^ ^°" 
 companies. The members were supposed to equip themselves 
 with buckets, axes, and other fire-fighting implements. At 
 about the beginning of the eighteenth century these volunteer 
 companies began to be equipped with pumping engines, the
 
 482 STATE AND MUNICIPAL GOVERNMENT 
 
 first one being ordered by Boston in 1702.^ Although these 
 engines were sometimes paid for by the city, they were gen- 
 erally manned and operated by volunteers. The first steam 
 fire-engine was purchased by Cincinnati in 1853, and shortly 
 afterwards the system of volunteer companies gave way to the 
 organized force, appointed and paid by the city." Since 1870 
 there has been a steady increase of paid fire-fighting depart- 
 ments, until almost every city has such an organization, the 
 nucleus of which consists of permanent employees. 
 Organiza- In the Organization of the fire department both the board 
 
 th°e°fire type and the commissioner type are found. Boston, Chicago, 
 department ^^j^^j New York have adopted the commissioner plan, and in 
 commission-governed cities the fire department is usually under 
 the commissioner in charge of public safety. Of the large cities 
 Baltimore, Detroit, and San Francisco have the board type of 
 organization. In all the cities mentioned the commissions or the 
 boards are appointed by the mayor. Like the police department, 
 the fire department should be under a single head, but in smaller 
 cities the expense makes the board organization more popular. 
 Below the commissioner or board is usually a chief, who has 
 general charge of the discipline and management of the force. 
 Fire Fire companies generally consist of a captain and from ten 
 
 companies ^^ fourteen men, who are stationed in a fire-house equipped 
 with a certain amount of fire-fighting apparatus. Experience 
 has shown that the best method of obtaining firemen is by 
 competitive tests under the civil-service commission, together 
 with a searching physical examination. In addition, Boston, 
 Chicago, New York, and Philadelphia maintain special schools 
 for the training of firemen in the use of their fire-fighting appli- 
 ances and in the methods of extinguishing fires. As in the case 
 of the police, employment in the fire department is considered 
 almost permanent, promotions are provided far too often as the 
 result (jf mere length of service, and pensions are granted at the 
 age of retirement. 
 
 The modern appliances for fire-fighting may be classified as 
 fixed and portable. The fixed appliances consist of the water 
 
 'Sec J. A. Fairlie, Municipal Administration, pp. 151 157. 
 -Baltimore, 1858; Boston, i860; New Yorii, 1865 ; Fhiiadeiphia, 1871.
 
 SAFETY 483 
 
 mains laid in the streets and, in particular, the hydrants, to pire- 
 which the fire-hose can be attached. It is of vital importance fppifan^es 
 that the hydrants should be frequently inspected, that their 
 connections should be of a type affording no difficulty in at- 
 taching the hose, and, in northern winters, that great precau- 
 tion should be taken to prevent their freezing. Another kind 
 of permanent fire-fighting apparatus is the fire-tank and stand- 
 pipes which are placed in factories and large buildings. By 
 maintaining on the roof of the building a large tank filled with 
 water and attached to various standpipes running throughout 
 the building, the firemen may find on almost any floor suf- 
 ficient pressure to deal with a fire on that particular floor. 
 A very successful permanent apparatus for extinguishing in- 
 cipient fires is the sprinkler system. This consists of a network 
 of pipes suspended below the ceiling ; to it are attached outlets 
 sealed with a metal composition which fuses at a comparatively 
 low temperature. The sprinkler system may be regarded as a 
 means both of preventing and of extinguishing fires. It is de- 
 signed to put out any incipient fire before it has spread to a 
 dangerous degree. To be efficient every portion of the building 
 should be within the radius of some sprinkler outlet, and cellars, 
 closets, and stairways must be particularly guarded. A nec- 
 essary part of the sprinkler system is the automatic alarm, 
 which will warn the nearest fire-house when the sprinkler 
 system begins operating. This is necessary because in certain 
 buildings almost as much damage to the stock may be done by 
 water as by fire. A serious limitation of the sprinkling system 
 is found in northern cities, where the temperature in store- 
 houses is below freezing. Although many attempts have been 
 made to remedy this defect, they are all complicated and 
 perhaps a little uncertain in operation. 
 
 Portable fire-fighting apparatus centers around the engine. Portable 
 Until recently this was a horse-drawn, steam-pump, and pres- apparatus" 
 sure engine. Within recent years, however, the engines have 
 been commonly motorized and the internal-combustion engine 
 substituted for the steam-pump and pressure engine. The pur- 
 pose of these engines is to take the water at the hydrants from 
 the mains and deliver it at the nozzle of the hose with sufficient
 
 484 STATE AND MUNICIPAL GOVERNMENT 
 
 pressure to enable the firemen to reach the fire at a distance 
 of from sixty to eighty feet. Inseparable from the fire-engine 
 is the hose wagon, which carries the hose used in fighting a fire. 
 In addition to the hose, the wagon carries its proportion of 
 firemen, axes, and hand extinguishers. In some fire stations 
 a hook-and-ladder company is added. This operates a large 
 truck carrying ladders of different lengths and often an exten- 
 sion ladder which is capable of reaching to a height of eighty 
 feet. Beyond this distance, for the lofty office buildings, the 
 firemen must depend upon scaling-ladders, which are short 
 ladders affixed to the window sills at the different stories. In 
 order to deal with the high buildings in some of our cities fire- 
 towers have been devised ; these are extension frameworks 
 which can be elevated to about eighty feet, from the top of 
 which a turret nozzle throws a stream of water. Even this is 
 limited in its effectiveness to less than two hundred feet. 
 Hence the protection of upper stories of lofty buildings must 
 depend upon fire-resisting materials and the use of standpipes, 
 so that the fire may be fought on each separate floor. In sea- 
 ports fire-boats are not uncommonly found. These are tugs of 
 light draft carrying very powerful engines and manned by a 
 fire company. These have proved of great value in fighting 
 fires along the water front as well as in dealing with fires 
 on boats anchored in the harbor. 
 Cost of the The one hundred and forty-six cities having a population of 
 ment^^*"^ over 30,000 spent, in 1919, $64,540,941 on their fire depart- 
 ments. This total was exceeded only by the expenses of schools, 
 general government, the police department, and highways.^ 
 The amount has been and is steadily increasing. Of the cities 
 with a population of over 500,000 New York spent the greatest 
 amount ($10,632,079) and Baltimore the least ($962,885). 
 Boston, however, expended more per capita ($2.74), Pittsburgh 
 coming next, and Philadelphia spending the least ($1.20). The 
 per-capita expenses of cities between 300,000 and 500,000 
 varied from that of San Francisco ($3.41) to the Si. 57 which 
 was spent by New Orleans.'' 
 
 ' Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), pp. 204-205. '■^Ihid.
 
 SAFETY 485 
 
 3. The Health Department 
 
 Attempts to protect public health began during the eighteenth Deveiop- 
 century in the Atlantic seaports, chiefly through the establish- city organi- 
 ment of quarantines against infectious and contagious diseases, the'preser- 
 Originally the colonial assembly exercised this power, but the vation of 
 ports of Boston, New York, and Philadelphia soon found it 
 necessary to establish local boards of health. These local 
 boards, however, were not permanent, and their action was 
 aimed in general against such diseases as cholera or smallpox. 
 Moreover, few preventive measures were taken, and the board 
 of health frequently did not begin to operate until pestilence 
 was actually at hand. The modern system of sanitary inspec- 
 tion began in 1866 with the establishment of the Metropolitan 
 Board of Health for New York, Brooklyn, and the vicinity.^ 
 Chicago followed in 1867, Boston in 1872, and New Orleans 
 in 1873. Since that time the number of boards of health has 
 rapidly extended until practically every city has a board or 
 health officer appointed by the municipal authorities, and in 
 cities of over 200,000 there is a considerable corps of sani- 
 tary inspectors and agents enforcing health regulations or 
 attempting to prevent disease. 
 
 The powers of the sanitary police are determined in part by Legal basis 
 
 , , , . 1 • xu of sanitary 
 
 statute law and by the common law as mterpreted m the pouce 
 American courts.- This depends upon the common law of p^^^""® 
 nuisances. What constitutes a nuisance may in the original 
 instance be determined by the legislature subject to judicial 
 review. The general tendency of the courts, however, is to 
 allow the legislature considerable latitude in the determination 
 of what are nuisances, particularly those which affect the public 
 health. Originally a nuisance could be abated only as the 
 result of a criminal proceeding, which was a long and uncertain 
 method. The common-law right to abate a nuisance — which 
 is possessed by every citizen and official alike — was seldom 
 invoked, because it involved the person so invoking it in the 
 risk of a suit for damages in case the court should declare 
 
 iSee J. A. Fairlie, Municipal Administration, pp. 165-175. 
 2Goodnow and Bates, Municipal Government, pp. 302-304.
 
 486 STATE AND MUNICIPAL GOVERNMENT 
 
 the thing abated not to be a nuisance. About the middle of the 
 nineteenth century, however, it was decided by the New York 
 courts that a hearing and trial before a board of health con- 
 stituted a judicial proceeding and that the board itself could 
 declare a thing a nuisance and order it abated. Nevertheless, 
 as a rule boards of health proceed without preliminary hear- 
 ings and direct the abatement of the nuisance, but this action 
 is subject to revision on a collateral judicial action like a suit 
 for damages or an injunction, 
 organiza- In most municipalities the health department is organized 
 health ^s a board. There are good reasons for adopting this type of 
 
 department organization. The department is frequently called upon to 
 make ordinances and rules, and public opinion is probably 
 better satisfied if these are the results of the deliberations of 
 several individuals rather than the dicta of a single commis- 
 sioner. Nevertheless, in some of our largest cities — New York, 
 for example — the department of health is under a single com- 
 missioner. Because of the relation of the health department to 
 collateral departments, like police, street-cleaning, or (in the 
 case of a seaport), the port authorities, ex-officio boards have 
 been tried in which the heads of these various departments 
 shall serve. Wherever the board type of organization is adopted, 
 an executive expert must be employed even in the smallest 
 cities. This health officer or agent of the board of health acts 
 in a threefold capacity. It is surmised that in many instances 
 he is the source, by means of advice given to the board of 
 health, of the ordinances and regulations which the board pro- 
 mulgates. He acts, moreover, as the executive agent of the 
 board in carrying out these regulations. Finally, in many cities 
 he is the inspector — in the smallest sometimes the sole inspec- 
 tor — of the sanitary conditions which the boards of health 
 attempt to supervise. In large cities, however, the board of 
 health supervises the work of a large number of sanitary 
 inspectors and agents — often hundreds in the largest cities. 
 Relations of I he health of the city is dependent upon many departments 
 department ^^'^^ wliich the department of health may have no control. 
 dcMrtment "^^^^'^ ^'^^ Water, the sewer, and the street-cleaning departments, 
 together with those charged Vv'ilh the removal of the city's
 
 SAFETY 487 
 
 waste, are vital factors in the preservation of the health of the 
 city; but, as will be seen, these departments operate almost 
 independently of the health department and sometimes not in 
 harmony with it. The duties of these collateral departments 
 are so manifold and important, and the departments themselves 
 already so large, that it would be impossible to combine them 
 under the board of health without decreasing both its adminis- 
 trative efficiency and that of these collateral departments as well. 
 
 Almost universally municipal boards of health are directed Functions 
 
 , , ■ ., ,.,. , . , of the board 
 
 to mspect and abate unsanitary conditions which may prove of health: 
 detrimental to the health, comfort, and convenience of the (i) Precau- 
 citizens. Ordinarily this includes supervision over the removal action 
 of the garbage of the city. In some instances this is actually 
 performed by subordinates of the board of health, but where it 
 is conducted by private contract, or by another department of 
 the city administration, the board of health exercises super- 
 visory power. A special control is exerted over plumbing and 
 house drainage in various ways — by the formulation of certain 
 regulations and by the examining and licensing of plumbers 
 and by the inspection of their work. In some cities the use 
 of soft coal is prohibited or, if allowed, smoke consumers must 
 be used. Certain trades, particularly slaughterhouses and ren- 
 dering plants, are subject to special inspection and investiga- 
 tion. General factory inspection to determine the hygienic 
 conditions of factories is sometimes performed by the board of 
 health and sometimes by the department of labor or factory or 
 building inspection. Boards of health are commonly called 
 upon to examine the condition of the water supply and the dis- 
 posal of the sewage. In like manner other departments are 
 subject to the supervision of the board of health. The inspec- 
 tion of food in order to prevent disease is becoming more and 
 more important, especially in the case of the milk supply. 
 Practically every city is equipped with at least one inspector 
 of milk and the larger cities with a more adequate number. 
 State laws are constantly being passed requiring the inspection 
 of certain food products, sometimes carried on by independent 
 state authorities, but in many cities by agents of the board 
 of health.
 
 488 STATE AND jSIUXICIP.AL GOVERNMENT 
 
 [Vaccina- 
 tion and 
 inoculation] 
 
 (2) Manage- 
 ment and 
 control of 
 infectious 
 diseases 
 
 [Treatment 
 of commu- 
 nicable 
 diseases] 
 
 Laws requiring vaccination for smallpox are found as early 
 as the beginning of the nineteenth centur\'. In the United 
 States the most effective enforcement of these laws is in con- 
 nection with the school regulations, which prohibit the attend- 
 ance of children at the schools unless vaccinated. This is now 
 being extended to other diseases ; for example, in New York 
 the board of health is immunizing all children to diphtheria. 
 
 One of the important functions of the city board of health 
 is the discovery of infectious diseases. Before 1880 smallpox 
 was the only infectious disease which was required to be re- 
 ported. The number has constantly been increased since then, 
 until it includes, in all cities, smallpox, diphtheria, scarlet fever, 
 and typhoid fever. In rarer instances regulations require the 
 reporting of measles, cerebrospinal meningitis, yellow fever, 
 whooping cough, and German measles. Local boards of health, 
 however, may by regulation require physicians to report the 
 presence of any disease. Until very recently tuberculosis, which 
 was recognized as communicable, was required to be reported 
 only in New York City. The tendency now is to require noti- 
 fication of most communicable or dangerous diseases.^ Until 
 very recently few cities were equipped to discover the presence 
 of these diseases. Dependence was had upon the local physi- 
 cian ; but more lately the larger cities have a corps of inspec- 
 tors, and frequent inspection of school children by the school 
 physician or school nurse is proving to be an excellent method 
 of discovering the presence of infectious or dangerous disease. 
 Municipal laboratories are maintained in a few cities for the 
 investigation of these diseases through the testing and examina- 
 tion of bacteria. More commonly, however, this is a function 
 undertaken by the state authorities. 
 
 Until a comparatively recent time few cities could do more 
 than to quarantine in his dwelling the patient suffering from 
 infectious disease. This quarantine was difficult to enforce 
 and not particularly effective in large cities. A single excep- 
 tion is smallpox, for which some cities maintain a special 
 hospital known as the pesthouse. In later years, however, 
 state laws have required cities to maintain isolation hospitals, 
 
 ^See M. J. Rosenau, Preventive Medicine and Hygiene, pp. 1004-1005.
 
 SAFETY 489 
 
 where patients suffering from dangerous infectious diseases 
 may be treated. By state law cities and counties are in some 
 states required to provide hospitals or sanatoriums for per- 
 sons suffering from tuberculosis.' It is a burning issue as to 
 whether public authorities should undertake treatment of non- 
 communicable diseases. 
 
 Very little is done by the cities in the way of research con- (3) Research 
 cerning public health. Not all states even require the cities 
 to compile adequate vital statistics, this being usually under- 
 taken by the state authorities, and in only the largest cities is 
 there much attempt at the examination of specimens and the 
 determination of the causes of diseases. It is true that almost 
 every city maintains some facilities for testing certain food 
 products, but this can hardly be classified as research. Research 
 in public health is more frequently carried on by means of the 
 state or federal authorities. 
 
 The state board of health in some states conducts a state- (4) Educa- 
 wide campaign for education in matters of public health. In a 
 few cities, however, this is done largely in connection with the 
 school system. Special instruction is given to the children 
 concerning the use of alcohol and narcotics, and the simple ele- 
 ments of personal hygiene are taught. But whether these func- 
 tions should be performed by the department of education 
 rather than by the board of health is a much-debated question. 
 
 In 1919, in the cities having more than 30,000 population, Expenditure 
 
 • 1 1 1 i- 1 in health 
 
 over $20,000,000 was spent m health conservation and over conservation 
 $60,000,000 in sanitation or the promotion of cleanliness.- 
 More than $5,000,000 was spent for the prevention of tubercu- 
 losis, more than $4,000,000 for the treatment of communicable 
 diseases in hospitals, and more than $2,000,000 in treating 
 other communicable diseases. Medical work for school children 
 required over $1,800,000; milk and dairy control, $921,000; 
 and other food regulation, $814,000." The per-capita expense 
 
 1 Treatment is also undertaken in some cities for malaria, hookworm, 
 venereal diseases, diseases of infancy, and rabies. 
 
 2 Department of Commerce, Bureau of the Census, Financial Statis- 
 tics of Cities (1919), pp. 204-405. 
 
 3 Ibid. pp. 183-184.
 
 490 STATE AND MUNICIPAL GOVERNMENT 
 
 for the conservation of public health was only 58 cents through- 
 out the country. But this varied in cities having a population 
 of more than 500,000, from Baltimore, where the per-capita 
 expense was 39 cents, to Pittsburgh, where the expense was 
 97 cents. In cities of the next class the per-capita expense 
 varied from $1.44 in Buffalo to 21 cents in Indianapolis. 
 
 4. The Building Department 
 Building Building regulations have been adopted in many cities. Their 
 
 regulations , . . ■ r ^^ ^ 1 r- 1 • 1 • 
 
 administration falls between the fire and sanitary regulations 
 just discussed and the city-planning movement, which will be 
 considered in the next chapter. The purpose of building regu- 
 lations is, first, for protection from fire ; second, for stability of 
 construction ; third, for sanitary conditions ; and, fourth, for 
 the satisfaction of considerations of convenience or beauty. 
 In connection with the building regulations some cities have 
 adopted stringent housing laws which even determine the 
 amount of cubic feet of air per person in rooms, particularly 
 in factories. The department of health is vitally associated 
 with the building department in enforcing the sanitary and 
 plumbing regulations. The building department is also called 
 upon to consider the plans for future buildings in order to see 
 that they satisfy the requirements of the fire department. Thus, 
 in most cities a license to build or to make serious alterations 
 is required, and in order to obtain this detailed plans must be 
 submitted. In all cities, theoretically, and in the largest cities, 
 actually, inspectors visit the buildings frequently for the pur- 
 pose of seeing that the work is progressing in accordance with 
 the accepted plans.
 
 CHAPTER XXVIII 
 
 MUNICIPAL ADMINISTRATION. CONVENIENCE 
 
 City Planning, Streets, Water, Wastes, Sewage, 
 
 Public Utilities 
 
 I. City Planning 
 
 In its widest sense city planning includes the provision for city 
 the city's health, convenience, beauty, and even morals/ City ^ ^""^"^ 
 planning deals with both the present and the future. It requires 
 not only accurate knowledge of the exact present conditions 
 but considerable foresight in devising for future developments. 
 Plans for the city's convenience include the layout of the 
 streets, with the determination of their width ; the relation 
 of the water supply and the sewerage to the present and future 
 growth of the city ; the location of public buildings, railroad 
 terminals, and water plants as well as easy methods of com- 
 munication for the city's convenience. An adequate plan for 
 developing the city must contain provisions for the city's health. 
 The procuring of an adequate water supply and the distribu- 
 tion of the city's waste should be studied not only from the 
 point of view of the city's convenience but from that of the 
 health of its citizens. Park systems and recreation centers are 
 obvious examples of provisions for the city's health. But even 
 more vital than these is the proper determination of the system 
 of city streets and alleyways. Experience with ^'back-yard 
 tenements" and "noisome alleys," which have been allowed to 
 develop because of lack of foresight in laying out the streets 
 
 ^The literature on city planning is large and varied. N. P. Lewis's 
 "The Planning of the Modern City" and "City Planning," by John 
 Nolen (ed.), are examples of extended works. W. B. Munro, Princi- 
 ples and Methods of Municipal Administration, chap, i, gives a brief 
 account, with references to some of the standard authorities. A briefer 
 account is found in Goodnow and Bates, Municipal Administration, 
 pp. 360-370. 
 
 491
 
 492 STATE AND IMUNICTPAL GOVERNMENT 
 
 and determining the size of the building lots, are all too com- 
 mon in the history of city slums. Of great importance is the 
 plan for the beautiiication of the city. It is sometimes said 
 that mean streets develop mean people. An adequate city plan 
 should avoid mean streets, should take advantage of the natural 
 physical features of the city, and should plan for squares and 
 parks, which at some future time might become beauty centers. 
 Closely connected with this are the restrictions which the city- 
 planning authorities should devise for the erection of buildings, 
 the height and character of their construction, etc. Limitations 
 on the use of signboards and advertising are also legitimate 
 functions for the planning authorities to deal with. Finally, a 
 city plan should not neglect the sociological conditions of the 
 city. A little has been done along this line in zoning systems, 
 which attempt to restrict certain types of business and factories 
 to definite localities and to provide for residence districts; 
 while some European cities have gone even further and deter- 
 mine the areas in which theaters and amusement halls may be 
 located. All these things have an effect upon the moral develop- 
 ment of the citizens. Proper home life and suitable upbringing 
 of children cannot be obtained in the middle of a crowded 
 retail-business center, while the erection of tenement houses or 
 the building of factories, loft-buildings, or garages may ruin a 
 section of the city devoted to small homes. A schoolhouse and 
 a railroad station are bad neighbors to each other, and, unless 
 watched, an inchoate slum may develop in what was the garden 
 of a decayed mansion. 
 City Although these are the widest ideals of city planning, few 
 
 in^Amedca ^^ "^ cities in the United States have realized them. In a few 
 cases only has the mere physical plan of the city been deter- 
 mined, and most cities have been allowed to develop in a hit- 
 or-miss fashion. Exception should be noted in the cases of 
 Philadelphia, Washington, and New York above Fourteenth 
 Street, but even in these cases little has been done beyond plan- 
 ning for the mere convenience and physical layout of the city. 
 The city-planning movement in American cities is thus dealing 
 with accomplished facts and attempting a process of recon- 
 struction in order to remedy the errors of past generations and,
 
 CONVENIENCE 493 
 
 possibly in the suburbs, to provide for the adequate growth of 
 the city along proper lines. Up to about 1910 city planning 
 was of the most casual character. Occasionally different cities 
 appointed temporary commissioners to survey and plan for 
 certain special features. Many small cities had improvement 
 boards, and larger cities had park commissions ; but, after all, 
 these were dealing with isolated problems and their action was 
 uncertain and seldom consistent. In 1907 Hartford, Connecti- 
 cut, established the first permanent planning commission, and 
 since that time the movement has spread rapidly and widely 
 throughout the country. In some states — Massachusetts, for 
 example — the city government is compelled by state statute to 
 appoint a planning board or commission. 
 
 Planning boards and commissions in the United States are composition 
 composed in three different ways. One type consists of citizens o°piann^i"g 
 who have no connection with the city government ; this board *°""^s 
 is more or less a permanent body, being subject to partial re- 
 newal each year. A second type is composed of city officials, 
 generally members of the city council, and thus is less perma- 
 nent in character and more liable to political influence and 
 changes. The third type represents a combination of the two. 
 The first variety of city-planning board has an advantage in 
 that it is removed from the influence of municipal politics and 
 may secure the services of men of outstanding ability. Its chief 
 difficulty is that it has no formal connection with the city 
 council, which makes the appropriations and passes the ordi- 
 nances necessary to realize the aims of the planning board. The 
 third kind of planning board, which contains certain represent- 
 atives of the city government, should theoretically be the most 
 efficient. It possesses the advantages of the first type and adds 
 the representatives of the city government, who may be able 
 to influence the council to carry out the plans. In practically 
 all cities the powers of the planning board are merely advisory. 
 They are frequently given an appropriation (generally an in- 
 adequate one) to make surveys or gather material, but they 
 lack the power to realize these plans and to put them into effect. 
 This is probably as it should be, since the political authorities 
 of the city rightly determine the policy and control the purse.
 
 494 STATE AND MUNICIPAL GOVERNMENT 
 
 Basis of a The basis of a city plan is an accurate and painstaking 
 city plan survey. This should include not simply the physical layout of 
 the city but the location of all water pipes and sewer pipes, 
 and underground conduits, the accurate determination of street 
 boundaries, and so forth. Experience has shown that few cities 
 possess in their archives such a complete and painstaking sur- 
 vey.^ In addition to the physical survey, an economic survey 
 should be made of the character of the city's industries and 
 the city's resources. A social survey should also be compiled. 
 In fact, the archives of a city-planning commission should 
 contain evidence of all sorts on all problems which city plan- 
 ning in its widest sense might involve. Such a survey is abso- 
 lutely necessary before any proper and adequate plans can 
 be made; it is never complete but must constantly be kept 
 up to date. Even from such a careful survey, the making of 
 plans for future development involves a considerable element 
 of chance and gives opportunity for use of foresight in the 
 highest degree. 
 
 In the United States the city-planning commissions face 
 many difficulties. The first of these is constitutional and legal. 
 The Constitution of the United States and constitutions of the 
 various states contain many limitations upon the taking of 
 private property. Just what is a public use for which alone 
 private property may be taken varies from state to state and 
 from decade to decade. It is not infrequently necessary for a 
 planning commission to secure special legislation from the state 
 legislature in order to enable the city government to carry 
 out its plans. 
 (2) Expense A second difficulty which confronts the planning board is 
 financial. City planning is expensive ; particularly is this true 
 in the reconstruction of streets and the remedying of mistakes 
 made by previous generations. The taking of land to widen a 
 narrow street, in order that it may be adequate to carry the 
 traffic it naturally bears, is sure to involve the city in expenses 
 far beyond the amount originally estimated. T( may be entirely 
 
 Difficulties 
 of city 
 planning : 
 
 (i) Consti- 
 tutional 
 and legal 
 
 ^As a result of a survey made in one district of a New England city 
 enough untaxed land was discovered to pay in a sinfjlc year for the 
 entire survey.
 
 CONVENIENCE 495 
 
 possible to demonstrate the fact that a new street giving access 
 to a terminal or water front will more than pay for itself by- 
 increasing the valuation of the property along it, besides saving 
 an immense sum to the industries using such a street. Never- 
 theless the first cost is almost prohibitive. 
 
 A third difficulty which the planning board too often is (3) meffi- 
 forced to contend with is the inefficiency or corruption of the dtygov- 
 political bodies of the city government. The laying out or the ^'^°™^''* 
 widening of streets furnishes an opportunity for private gain 
 which has too often been taken advantage of by members of 
 the city government. The city government at best is a chang- 
 ing body ; a city plan requires years to reach its complete de- 
 velopment. Frequently one city government has reversed the 
 action of its predecessors and has abandoned or altered a care- 
 fully-thought-out plan of development. Finally, city planning 
 in America faces the difficulty of the rapid and unexpected 
 development of cities. The location of new industries may call 
 for the alteration of a carefully prepared plan, and the shifting 
 of population may compel the abandonment of certain cen- 
 ters which were designed for one type of population and the 
 extension of a business zone into a residence district. 
 
 The expense of city planning obviously cannot be met from cost of city 
 the annual tax levy. The usual practice in the United States ^ *°°^°^ 
 is to assess the cost of a large proportion of the improvement 
 upon the abutting property, but even this is inadequate. In 
 many of the foreign cities which have attempted reconstruction 
 the city governments have acquired more property than was 
 necessary for their particular plan, and they have then at- 
 tempted to sell this extra land at a value enhanced as the result 
 of the improvement. Theoretically this is an excellent method, 
 but practically less has been realized in every instance than 
 was expected. It has been tried in the United States, but with 
 little success, for political influence generally makes the city 
 as a purchaser pay the highest price for property acquired and 
 as a seller receive much less. This is true even where no cor- 
 ruption can be found, and where corrupt politics have a hold 
 the estimated advantages of this system are never experienced 
 by the city.
 
 496 STATE AND IMUNICIPAL GOVERNMENT 
 
 status of In spite of all these obstacles and difficulties city planning 
 
 ning^iT"' i^ America is being pushed forward with considerable success. 
 
 the United Many citics are constructing civic centers, as in Cleveland ; 
 states -^ o > 5 
 
 many more are providing for parks and parkways ; not a few 
 have adopted zoning systems and restrictions upon the use of 
 private property to the advantage of the health and morals of 
 future generations ; while many cities by constructing new 
 streets and widening old ones are attempting to remedy their 
 former mistakes. 
 
 2. Streets 
 
 Importance The Streets are the most important portions of the city's 
 stre'e\^ territory and its most valuable property. The importance of 
 the city street lies in the fact that even in old cities from 
 25 to 30 per cent of the city's area was to be found in the 
 streets, while in modern cities almost 40 per cent, and in the 
 case of Washington, D.C., 50 per cent, of the city's territory 
 is devoted to streets. The streets themselves bear the traffic 
 and business of the city. This means not only that they serve 
 as means of communication for foot and vehicular traffic but 
 also that they carry on their surface the tramways and beneath 
 their surface the water, sewer, and gas mains, and, in the larger 
 cities, conduits for wires, and tunnels and subways for under- 
 ground transportation. Above their surface, in the older and 
 smaller cities, are strung wires supported on poles and in some 
 of the larger ones are found elevated tracks for transportation. 
 The life of the city depends upon the city streets, for without 
 them there would be no access to private property, no means 
 of communication, no method of i)r()viding light and air for 
 the buildings. The city streets have a great marketable value. 
 Thus, in New York City it has been estimated that if the land 
 of the city streets were valued on the same basis as the adjacent 
 private property it would be worth about one tenth of the esti- 
 mated value of the entire farm lands in the United States.^ 
 Nominally the city owns the streets, but too often cities have 
 parted with the use of this valuable property to transportation, 
 
 ' W B. Munro, Principles and Methods of Municipal Administration, 
 PP- 74-75-
 
 CONVENIENCE 497 
 
 gas, and other so-called public-utility companies, while even 
 private individuals frequently demand the right to erect adver- 
 tising structures or gasoline pumps on this most valuable of 
 all public property. 
 
 The street or highway department in city governments is The street 
 sometimes of the board type of organization and sometimes of in^c1ty"gov- 
 
 ernment : 
 
 the commissioner type. In whatever form adopted, there must 
 be certain subordinate bureaus or divisions. The functions of zation and 
 the street department are many, and seldom are they all con- ^""'^^lons 
 centrated in the divisions or bureaus of any one department. 
 The first duties which the street department faces are the plan- 
 ning and location of the streets. Seldom do the street depart- 
 ments themselves exercise this function independently of other 
 branches of the city government. The planning board should 
 be consulted in order that the location and character of the 
 street may correspond to the larger city plan. The city council 
 is seldom willing to delegate to any single department the in- 
 dependent power to locate a street. The acquisition of the land 
 for the streets generally involves both legal and financial ques- 
 tions, which are very rarely handled by the street department. 
 In the construction of a street — the determination of its grade, 
 the character of the pavement, and the location of the side- 
 walks — the street department is vitally interested and usually 
 alone concerned, although in many cities the engineering de- 
 partment performs some of these duties. In like manner the 
 repair of the streets is ordinarily conducted by the street de- 
 partment, but the street-cleaning may be done either by that 
 department or by the board of health or by an entirely inde- 
 pendent department, as in New York. The protection of the 
 streets against too frequent excavations by public-utility com- 
 panies and private individuals, as well as by departments of the 
 city, is another legitimate function of the street department. 
 In whatever way the department is organized or whatever 
 duties are given it, it must act in close correlation with other 
 departments of the city government. 
 
 Land for streets is generally acquired in one of three ways. 
 The first method, which applies usually to new developments 
 only, is by gift. Private owners of tracts of land which they
 
 498 STATE AND MUNICIPAL GOVERNMENT 
 
 Acquisition 
 of land for 
 public 
 Streets 
 
 Acquisition 
 of land 
 by con- 
 demnation 
 proceedings 
 
 wish to open up for development not infrequently lay out the 
 streets and offer these to the city. This apparent generosity 
 is not always disinterested. Great care should be taken on the 
 part of the city authorities that the streets correspond in grade 
 to the adjacent streets and that there are no difficulties involving 
 great expense in the way of the extension of the city water, 
 sewer, and lighting systems to the new development. It should 
 always be borne in mind that when private property has once 
 been accepted as a public street the city becomes responsible 
 for its pavements and is financially liable for accidents which 
 may happen thereon. A second method of acquisition of land 
 is by means of purchase. Here the city goes into the open 
 market and seeks to purchase private property. As a rule the 
 city is forced to pay far more than the ordinary buyer would 
 pay. In rare cases a group of property owners may join to- 
 gether and sell their land to the city at a favorable price, 
 hoping to recoup themselves from the advantages gained by the 
 location of the street. These cases, however, are not frequent. 
 The ordinary method by which a city is forced to acquire 
 land for its streets is by condemnation proceedings. According 
 to state statutes and charters the cities are allowed to exercise 
 the right of eminent domain and acquire the property which is 
 necessary for a public purpose. What constitutes a public pur- 
 pose in the last instance is subject to judicial decision. But 
 the courts have everywhere held that under eminent domain 
 the city may secure the land for streets, schools and public 
 buildings, and parks. The procedure is regulated by state 
 statute. The city determines what land is necessary and, by 
 the right of eminent domain, takes possession of this land. It 
 may offer the owner compensation, and if the owner accepts 
 the matter is ended and the transaction is like that of purchase ; 
 but where the owner is dissatisfied with the compensation of- 
 fered he may sue the city in a court of law, and a jury 
 determines what constitutes an adequate compensation for the 
 property taken. This method is tedious and expensive, both 
 to the city and to the property owner. Certain other difficulties 
 arise from this method of obtaining land. It is generally a 
 principle of law that a city may acquire property only for a
 
 CONVENIENCE 499 
 
 public purpose and that property acquired for one purpose 
 cannot be used for a different one. Thus a city was formerly 
 prevented from taking more land by condemnation proceedings 
 than was actually necessary for the particular undertaking it 
 had in hand. It has frequently happened that a city in securing 
 land for a street would leave sections of lots which would be 
 inadequate for proper buildings and make the beginning of an 
 unsightly slum. To remedy this condition certain states have 
 passed excess condemnation laws which allow the cities to 
 acquire more land than is absolutely necessary. In theory this 
 should work to the city's advantage, and the estimates often 
 do show that the sale of the surplus land should be sufficient to 
 pay for acquiring the lands needed for the streets. In practice 
 this seldom results, for, as has been said, the city buys at the 
 highest price and sells at the lowest. 
 
 The money for the acquisition of land for streets in the first cost of 
 
 streets 
 
 instance is ordinarily raised by issuing bonds, and the interest 
 and capital of these bonds is paid by general taxation. Actually, 
 however, the property abutting on the new street is revalued by 
 the assessors so that an attempt is made to compel the abutters 
 to pay a large part of the cost of obtaining the street. There is 
 a rather good reason for this ; without doubt the building of a 
 street through private property enhances the value of the prop- 
 erty, inasmuch as it makes it accessible. Outside of New Eng- 
 land the cost of making and paving the street is also usually 
 assessed upon the adjacent property owners, although street 
 repairs are met by the ordinary municipal budget. In New 
 England the cost of the street pavements is commonly borne by 
 the city, although sidewalk construction is paid for in part by 
 assessing the abutters. In cities having over 30,000 population 
 more than $65,000,000 was spent for highways in 191 9 — an in- 
 crease of more than 30 per cent^ over the previous decade. As 
 might be expected. New York City expended more than any 
 other city ($12,092,927) ; but Pittsburgh, spending a little 
 more than $2,000,000, had the greatest per-capita expense 
 ($3-59) of any city having a population of over 500,000. In 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), p. 78.
 
 500 STATE AND MUNICirAL GOVERNMENT 
 
 Classifica- 
 tion of 
 streets 
 
 Special 
 problems 
 connected 
 with 
 streets : 
 (i) Width 
 
 cities of the second class Buffalo laid out the greatest amount 
 ($1,725,901) and also had the highest per-capita cost ($3.47).^ 
 
 Streets should be classified if the problems connected with 
 their construction, pavement, and maintenance are to be dealt 
 with intelligently.- This classification may be started as a part 
 of a comprehensive city plan or it may be applied to particular 
 streets newly constructed. For example, a comprehensive city 
 plan would provide for certain streets which should be devoted 
 to retail trade, others for manufacturing ; certain streets would 
 be the main arteries of communication, while others would be 
 residence streets ; finally, certain streets might be devoted to 
 drives and parks. The purpose for which a street is to be used 
 determines in large measure its width, construction, and pave- 
 ment. For illustration, a newly opened street may be regarded 
 as a pleasure drive with a suitable construction and pavement, 
 while at great expense a city may, through the wholesale district, 
 open an artery to the terminals or water front which would be 
 constructed and paved in an entirely different way. Another 
 method by which classification is sometimes accomplished is 
 through a zoning ordinance. By this ordinance certain sections 
 of the city are devoted to manufacturing purposes, certain 
 others to retail trade, others to residences. Most zoning laws 
 as a rule regulate the height of the buildings and sometimes the 
 proportions of the lot they may occupy. These regulations have 
 great effect in determining the character of the street. Once 
 the character of the streets of a city has been fixed by a 
 zoning ordinance, they automatically become classified and 
 the problems of construction, pavement, and maintenance are 
 arranged more easily. 
 
 No two classes of streets serve exactly the same purpose. 
 Thus a street devoted largely to retail trade must be broad 
 enough to bear at least two lines of surface cars and two lines 
 of vehicular traffic, besides allowing for at least two lines of 
 standing vehicles along the curbs; moreover, the sidewalks 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (iqiq), p. 204. 
 
 -See W. H. Munro, Principles and Methods of Municipal Administra- 
 tion, pp. 78-80.
 
 CONVENIENCE 501 
 
 must be sufficiently wide to bear the traffic of the large number 
 of pedestrians patronizing the shops. Such a street presents a 
 very different problem from a street in the wholesale district, 
 where surface cars become a nuisance, sidewalks should be de- 
 signed to facilitate the transfer of merchandise from the trucks 
 to the warehouses, and provision should be made for parking 
 the trucks at right angles to the buildings. The entire problem 
 of street widths is most complicated, but it has been worked 
 out with considerable accuracy by engineers.^ If the street is 
 unnecessarily wide for the purpose for which it is designed, the 
 taxpayers are deprived of valuable property which might con- 
 tribute large sums to the city treasury. If, on the other hand, 
 the streets are too narrow traffic becomes congested, communi- 
 cation difficult, and the value of the adjacent property is 
 thereby diminished. 
 
 In cities w^hich have adopted a comprehensive zoning ordi- (2) Restric- 
 
 1 . . tions on 
 
 nance private property is subject to severe and minute restnc- adjacent 
 tions. Even where such ordinances have not been adopted, a P''°P^'''^y 
 building line is frequently fixed beyond which the owner may 
 not build. Experience has shown the necessity for some restric- 
 tions. If the property owners on narrow streets are allowed 
 to utilize their property to the full extent for the erection of 
 lofty buildings, both they and their neighbors are deprived of 
 light, and the street becomes dark and congested with the 
 multitude of people occupying the buildings.- To prevent this 
 property owners are restricted in two ways : the height is fixed 
 beyond which buildings may not be erected, or (a more modern 
 way) the property holder is allowed to utilize the whole or cer- 
 tain portions of his property for buildings of a specified height, 
 but above this fixed height the area of the building must diminish. 
 This not only limits the population of the building but insures 
 a more nearly adequate supply of light and air in the street. 
 
 ^See W. B. Munro, Principles and Methods of Municipal Adminis- 
 tration, pp. 80-85, with references and footnotes showing the generally 
 accepted widths. 
 
 -When it is remembered that some of the large office buildings in 
 New York have a population of thousands (more than some small cities) 
 who twice a day utilize the narrow street some idea of this congestion 
 may be obtained.
 
 502 STATE AND MUNICIPAL GOVERNMENT 
 
 Methods 
 of street 
 construc- 
 tion and 
 pavements 
 
 Street 
 pavements 
 
 After the land has been acquired for the street there are two 
 methods in common use for the construction of the street or 
 its pavement. The first may be called the direct method. By 
 this the city department itself performs the work; that is, the 
 engineering department prepares the plans and supervises, while 
 the city laborers actually carry on the work. The other method 
 is through contract, by which the engineering or the street 
 department prepares a contract for the construction and pave- 
 ment and contractors bid upon the work. Theoretically the 
 contractor offering the lowest figures receives the contract. 
 There are advantages and defects in both systems. The con- 
 tract system is probably quicker and, if honestly administered, 
 cheaper. Unfortunately it has been found that the contract sys- 
 tem is often dishonestly managed. Even where this system is 
 uprightly conducted, city officials are prone to safeguard their 
 actions by making themselves the final judge of all controver- 
 sies, and all contractors alike raise their bids proportionately in 
 order to cover such contingencies. Street construction by the 
 direct system is probably more expensive because the city as a 
 rule pays its laborers higher wages than do private contractors. 
 Moreover, the city usually pays a higher price for supplies and 
 materials than do the contractors. There is less likelihood of 
 poor work resulting from fraud under the direct system, al- 
 though the municipal laborer is notoriously inefficient. From 
 one point of view the direct system has decided advantages — 
 it may furnish employment for numbers of unskilled laborers 
 in the city, and in so doing it acts as a species of out-of-door 
 poor relief. Experience has shown that whatever value this 
 type of labor has from the sociological point of view, it cannot 
 be defended from the economic standard. The question of the 
 direct system as opposed to the contract applies not simply to 
 the building of streets but to the construction and repair of all 
 the public utilities discussed in this chapter. No definite an- 
 swer can be given as to the relative merits of either system. 
 Even the statistics are of doubtful value and the practice of 
 different cities extremely varied. 
 
 The pavement of the street should be determined by the pur- 
 pose for which the street is used. There is no best pavement
 
 CONVENIENCE 503 
 
 for all streets. Streets in the wholesale business district, which 
 carry the burden of heavy trucks, should have a durable 
 pavement in order to withstand the hard use to which it is 
 subjected. For this purpose grouted granite blocks set in a 
 cushion of sand laid on a concrete foundation is probably the 
 best type. It is practically indestructible, is not slippery, and 
 can be kept comparatively clean without undue expense. The 
 great disadvantage is that it is noisy and, no matter how well 
 the blocks are laid, slightly uneven. For the purpose of retail 
 or residence streets granite blocks would be out of place on 
 account of the noise and, particularly, because of the expense. 
 For retail-business streets pavements of vitrified brick or chemi- 
 cally treated wood have been found extremely satisfactory. 
 They rank next to granite blocks in durability and cleanliness 
 and are safer than the sheet asphalt which is found in so many 
 cities. Perhaps the most popular pavement for business streets 
 is sheet asphalt laid upon a foundation of crushed stone. This 
 is easily cleaned and cheap to lay, but it is not particularly 
 durable, is the most slippery of all pavements, and is not easy 
 to repair. It is, moreover, extremely noisy. A generation ago 
 the most popular pavement for residence streets and for con- 
 necting highways was water-bound macadam. This consists of 
 a series of layers of crushed rock carefully rolled together. The 
 development of the motor car, with its pneumatic tires, has 
 rendered this type of pavement unsatisfactory. A variant of 
 this pavement, which is often used in resident districts and on 
 connecting highways, consists of an ordinary macadam founda- 
 tion on which is spread a comparatively thin layer of crushed 
 stone treated with some asphalt composition. This makes a 
 waterproof pavement, almost as noiseless as the old macadam 
 and less liable to be cut to pieces by the pneumatic tires of 
 motor vehicles. In some sections of the country the use of con- 
 crete for street pavement has been tried with considerable suc- 
 cess. The expense of paving and keeping in repair the miles of 
 city streets is enormous, and repairs on any type of pavement 
 are both unsatisfactory and expensive. It frequently happens, 
 therefore, that the cheapest pavement in the end is one of the 
 most expensive pavements to lay; for example, water-bound
 
 504 STATE AND MUNICIPAL GOVERNMENT 
 
 Cost of con- 
 struction of 
 pavements 
 
 Sidewalks 
 
 macadam is the cheapest to lay, but is the least durable of 
 all pavements. As the result of experience cities are learn- 
 ing to spend more money upon the original cost of the pave- 
 ments, hoping that the durability will compensate for this 
 increased expense.^ 
 
 In New England the greater part of the cost of the street 
 paving is paid for by issuing bonds. Since pavements are con- 
 sidered as more or less permanent improvements, the cities are 
 allowed to issue long-term bonds, and in many instances the 
 pavements have been obliged to be renewed before the bonds 
 have expired. The maximum term for pavement bonds required 
 by Massachusetts law is ten years, but this is too long a term 
 for bonds issued to pay the cost of macadam or asphalt paving 
 and too short for granite or wooden paving. 
 
 The construction of sidewalks is ordinarily assessed upon the 
 abutter, although in some New England cities the expense is 
 divided between the abutter and the city. Why there should 
 be a distinction between the pavement of the highways and 
 the construction of the sidewalks is hard to see, for although the 
 community as a whole is apparently more benefited by the 
 pavement of the highway, the abutter actually reaps almost 
 as much advantage. The chief problem connected with side- 
 walks is their width. The character of the street should deter- 
 mine such a question. Streets in the wholesale district demand 
 a maximum of road area and a minimum of sidewalk area. 
 In the retail districts the sidewalks of necessity must be wide 
 enough to carry the crowded traffic of shoppers. In residential 
 districts the sidewalk itself may be narrowed and a strip de- 
 voted to grass, trees, or llowers. Between the sidewalk and 
 the road is usually found a curbing. Originally this was gran- 
 ite, but with the use of granolithic and concrete it is frequently 
 made of some artificial stone. The sidewalk itself may be con- 
 structed of anything from gravel to artificial stone. In northern 
 
 'See W. R. Miinro, Princiiiles and Methods of Municipal Adminis- 
 tration, pp. loi-iio, witii rcfcrcncx'S to authorities, and p. lo,?, where is 
 presented a table in which pavements arc arranged in their approximate 
 order of desirability from the points of view of economy in construction, 
 economy in repair, rlurahiiily, cleanlinrss, noiselessness, and safety.
 
 CONVENIENCE 505 
 
 climates snow and frost make gravel walks unsatisfactory, while 
 excessive rainfall in other regions renders them disagreeable. 
 Formerly brick was both the cheapest and the most popular 
 material for sidewalks, but this is rapidly losing its popularity 
 because it is difficult to clean and in northern climates becomes 
 extremely slippery in winter. The most popular sidewalk pave- 
 ment today is that of some artificial stone in which cement is 
 the chief factor. 
 
 3. Water 
 
 The water supply of a city is of vital importance. Not only importance 
 is the city's health in a large degree dependent upon an abun- ^ater 
 dant supply of pure water for drinking and cooking purposes, supply 
 but the health and comfort of the citizens are largely affected 
 by the abundance of the water supply for both municipal and 
 personal cleanliness. A city possessing a supply of water which 
 is sufficient to furnish even the poorest persons with an ade- 
 quate quantity for household and personal cleanliness and, at 
 the same time, to insure proper street-cleaning is in a far more 
 healthy condition than one which is niggardly with its water. 
 The fire department as well as the health department may 
 make large demands upon the city's water supply. The water 
 supply, moreover, must be both adequate and satisfactory to 
 the industries of the city. Certain industries require far more 
 water than others ; certain other industries require that the 
 water should be soft rather than hard. Thus the water supply 
 of a city may not only determine the health but to a large 
 degree the industrial development of the city. 
 
 Theoretically a city should possess a water supply which is Requisites 
 sufficient in quantity, without color, taste, or odor, both chemi- supply T^ " 
 cally and bacteriologically pure, and of suitable texture.^ The 
 quantity of water necessary for a city depends upon many fac- (i) Quantity 
 tors. In European cities the average per-capita amount sup- 
 plied is about 40 gallons per day, but in the United States the 
 
 iSee Allen Hazen, Clean Water and How to Get It; G. C. Whipple, 
 The Value of Pure Water. W. B. Munro's "Principles and Methods of 
 Municipal Administration," chap, iv, contains an excellent brief treat- 
 ment of the problems connected with the water supply.
 
 5o6 STATE AND MUNICIPAL GOVERNMENT 
 
 daily per-capita consumption of water varies from loo to 200 
 gallons. The daily use of water for municipal purposes in most 
 American cities is about 10 gallons per capita; for domestic 
 purposes between 15 and 40 gallons per capita a day is gen- 
 erally allowed, although the average is quite generally below 
 40 gallons; industry and trade take from 20 to 40 gallons a 
 day, dependent upon the character of the industry. With these 
 maximum figures, there is left a daily wastage of about 10 
 gallons per capita. Part of this is lost through faulty joints in 
 the water-mains, more through defective plumbing, but a still 
 greater amount through sheer carelessness or intentional waste. 
 At one time in Boston, when only about 60 per cent of the serv- 
 ice was metered, the maximum consumption came during the 
 night hours of the coldest period in the winter, thus showing 
 that the householders had intentionally opened their faucets in 
 order to avoid the danger of freezing their pipes. In Cleve- 
 land, on the contrary, where practically the whole service is 
 metered, the greatest consumption comes during the day hours 
 of the warm summer months.^ When it is remembered that 
 water is a commodity increasingly expensive to supply, the 
 necessity for economy or at least for avoidance of waste is seen. 
 Much may be done in this direction if a larger part of the 
 service is metered, but water meters represent heavy first ex- 
 pense and are easily thrown out of order. What should be the 
 proper quantity of water for any individual city cannot be 
 definitely stated. In providing for the water supply of a city 
 it is wise to take a figure of not less than 100 gallons per capita 
 each day and to estimate for at least thirty years of normal 
 growth. The reason for this will be more clear when water 
 finance is explained.- 
 (2) Appear- The consumers of water generally demand that water should 
 be clear and without odor or taste. It is true that turbid 
 water may be entirely healthful, and some supplies are not 
 unhealthful which have both a slight odor and taste. These, 
 however, are not satisfactory to ordinary consumers, who are 
 
 ^See W. B. Munro, Principles and Methods of Municipal Administra- 
 tion, p. 1,38. 
 
 -Sec pa>j;c 510. 
 
 ance
 
 CONVENIENCE 507 
 
 more particular along these lines than they are concerning the 
 chemical and bacteriological purity of the water. 
 
 A proper water supply should be soft. Hard water not only (3) Texture 
 deposits its salts in the various utensils but also requires the 
 use of a greater amount of soap. For a single family this may 
 seem to be but a small item, but when this additional cost 
 continues for years and is multiplied by the constantly increas- 
 ing population, it is evident that a city which supplies hard 
 water is not fulfilling its proper function.^ Among the cities 
 which soften the water before delivering it to the consumer 
 are Columbus, New Orleans, and St. Louis. 
 
 The city water should be pure and free from chemicals ; (4) Purity 
 still more important is its bacteriological purity. The city's 
 water supply may become the greatest carrier of disease germs, 
 and widespread epidemics have been traced to the infection of 
 the water supply. The city is engaged in a constant struggle 
 to obtain and to maintain the purity of its water. 
 
 The cities in the United States get their water supply from sources of 
 four types of sources.- A few middle-sized cities and many supply 
 small cities derive their supply of water from ground waters; 
 that is, by wells driven to the water-bearing strata.^ Such 
 water may be reasonably pure but is apt to be too hard for do- 
 mestic use. A greater number of middle-sized and larger cities, 
 including New York and Boston, obtain their supply from im- 
 pounded waters ; that is, a river or a river system is diverted 
 into a reservoir or artificial lake, which is partly filled by the 
 rivers and partly by the natural drainage of the watershed. 
 The purity of such a water supply depends almost entirely 
 upon the vigilance with which the watershed and the supplying 
 streams are inspected and protected from contamination. 
 
 'See W. B. Munro, Principles and Methods of Municipal Adminis- 
 tration, p. 140, quoting from G. C. Whipple, The Value of Pure Water, 
 where it is figured that the soap wastage from hard water is between $7 
 and $& per 1,000,000 gallons. 
 
 2 See Department of Commerce, Bureau of the Census, General Statis- 
 tics of Cities (1915), pp. 41-47; also W. B. Munro, Principles and 
 Methods of Municipal Administration, pp. 131-132. 
 
 3 Lowell, Massachusetts; Canton, Ohio; Memphis, Tennessee; and San 
 Antonio, Texas.
 
 purification 
 
 508 STATE AND MUNICIPAL GOVERNMENT 
 
 Probably many more cities obtain their water from lakes — 
 Chicago, Cleveland, Buffalo, and other cities upon the Great 
 Lakes draw their supply from this source, through intakes set 
 four or five miles from the shore. Although many of the same 
 cities discharge their sewage into the lakes, the quantity of 
 water is so great that there is sufficient dilution to prevent con- 
 tamination. Some of the largest cities get their water supply 
 from rivers. Among these may be mentioned Philadelphia, St. 
 Louis, New Orleans, and Washington. From these large rivers 
 the water supply is comparatively pure, but safety is assured 
 by means of filtration. Often, however, supplies from rivers 
 are turbid in color. Water taken from lakes, particularly if 
 these are shallow or small, must be carefully inspected. 
 Water In many cities the water supply is examined and checked up 
 
 at frequent intervals (sometimes daily) by the board of health 
 in order that the purity of the supply may be maintained and 
 that the bacteriological count may not reach dangerous pro- 
 portions. Cities which derive their water from rivers or lakes 
 are frequently compelled to install filtration or purification 
 plants. Purification of water is accomplished in various ways ; 
 the most common methods are by chemicals and by filtration.^ 
 The chemical method consists in sterilizing the water by means 
 of hypochlorides of lime or soda. This renders the water abso- 
 lutely sterile of all objectionable bacteria. It is thus an excel- 
 lent method in an emergency, and not a few cities depend upon 
 it entirely. The other method most commonly used is through 
 filtration, by which the water is allowed to penetrate through 
 beds of coarse sand ; the particles of sand become coated with 
 a slimy deposit which purifies the water in its passage through 
 the filter. This type of slow sand-filter can be operated after 
 construction at a cost of about Sio per 1,000,000 gallons, or 
 30 cents annually for each inhabitant.- This method is em- 
 ployed in Albany, Philadelphia, Pittsburgh, and Washington. 
 The rapid sand-filter used in Cincinnati and Columbus is of a 
 different type. Here the water is first allowed to stand in 
 
 ^See Allen Hazen, Clean Water and How to Get It. 
 ^Sec VV. M. Munru, Principles and Methods of Municipal Adminis- 
 tration, p. 147.
 
 CONVENIENCE 509 
 
 storage reservoirs for the sake of removing the sediment fre- 
 quently found in river waters. The water is then pumped at a 
 pressure through coarse sand-filters. This system is slightly 
 more expensive to operate but cheaper to install, and there is 
 very little difference in the per-capita cost to the inhabitants. 
 When used in connection with the storage reservoirs, the rapid 
 sand-filter has the advantage of removing the turbidity of the 
 water, and it is more easily cleaned. 
 
 Although originally the franchise to supply water to many Public and 
 cities was granted to private companies, the whole modern suppHes 
 tendency is toward both municipal ownership and operation of °* ^*^^'' 
 the city water supply. Indeed, this is as it should be, for the 
 health and safety of the city are so dependent upon the quality 
 and quantity of its water supply that no question of private 
 profit should be allowed to enter into the problem. Moreover, 
 an adequate supply of water for a growing city is an extremely 
 expensive undertaking, and few private corporations would be 
 willing to sink the amount of capital necessary to guarantee a 
 sufficient supply for the increasing needs. Also, as will be seen in 
 the discussion of water finance, the price charged for the water 
 should not be so high as to limit its necessary and proper use. 
 
 In most American cities the water departments are under water 
 the control of a board, generally appointed by the mayor. But mi'nts^ 
 in the largest city — New York — a single commissioner pre- (i) Organi- 
 
 73.tiOTl 
 
 sides over the departments of water, gas, and electricity, while 
 in Boston the commissioner of public works takes charge of the 
 streets, sewers, bridges, and water distribution. INIuch can be 
 said in favor of the board organization, for the problems con- 
 nected with the water supply are not only so technical as to 
 necessitate the employment of an expert but also deal with 
 questions of policy which popular opinion feels should be deter- 
 mined by a group rather than by a single individual. Whether 
 the water department is separate or merged with other depart- 
 ments, it always forms a special bureau and employs or should 
 employ a number of technical experts. 
 
 The functions of the water department are most varied. (2) Func- 
 Primarily they are engineering problems dealing with the con- 
 struction of the pumping stations or the erection of dams for
 
 510 STATE AND MUNICIPAL GOVERNMENT 
 
 the reservoirs, the laying of the water-mains, and so forth. The 
 purity of the water supply, however, requires expert bacteri- 
 ologists or water engineers and not infrequently the assistance 
 of the legal department to enforce the necessary regulations. 
 When it is remembered that the water supply of most cities 
 is a manufactured product in which several or many processes 
 are involved, and which is sold in greater quantities than any 
 other manufactured product, the business side of the water 
 department becomes important. It is perhaps at this point 
 that the board organization shows its greatest advantages. 
 Questions of the extension of the water supply or water service, 
 questions of water rates and regulations, meet with less criticism 
 when determined by a board than by a single commissioner. 
 Finally, the amount of capital sunk in municipal waterworks 
 is enormous, and the financial administration of the invested 
 capital, the fixed charges, and the collection of the rates is 
 a department in itself. In small-sized cities many of these 
 functions may be performed by other officials. 
 Water The total amount of money invested in the water supply 
 
 systems in cities of over 30,000 population was placed in 19 19 
 at $1,257,831,733 for land, buildings, and equipment.^ The 
 same cities, moreover, had incurred a debt for the water supply 
 systems amounting to nearly $600,000,000.'- These figures, 
 large as they are, are increasing at the rate of about $50,000,000 
 a year. In general cities have financed the water supply by 
 means of long-term bonds. Little objection can be taken to this 
 method, inasmuch as the water supply is considered the most 
 constant source of income and the safest investment for munici- 
 palities to engage in. The former way was to provide a sinking 
 fund for redeeming the bonds at maturity, but the more modern 
 method is to issue serial bonds whose redemption should begin 
 a few years after the system has been put into operation. 
 Extensions and improvements to the system should be paid for 
 either from the surplus of the sale of the water or by taxa- 
 tion, unless such extensions involve acquiring a supplementary 
 water supply. 
 
 ^Sec Department of Commerce, Bureau of (he Census, Financial 
 Statistics of Cities (igio), p. 2gi. -Ibid. p. 303.
 
 CONVEX lENCE 511 
 
 The question of the rate which should be charged the con- water 
 
 , . , rates 
 
 sumer is complicated. Various methods are m vogue which 
 are so different that it is hard to find a basis of comparison. 
 ]\Iuch can be said in favor of the meter system, which auto- 
 matically puts a check upon the w^aste of water and which, if 
 an adequate minimum is allowed to the consumer at a fixed 
 rate, will prevent improper economy. What the rate should 
 be is partly a financial and partly a sociological question. From 
 the financial point of view the rate should be high enough to 
 yield a sufficient income to pay the annual interest and to 
 redeem a certain portion of the bonds each year. In addition 
 the system should be self-supporting ; that is, it should yield a 
 sufficient income to pay not only for its running expenses but 
 for its upkeep. There seems no adequate reason why water 
 should be freely given to the various departments of the city, 
 such as the park and street-cleaning departments. Such de- 
 mands make water iinance difficult to calculate. Although it 
 may be only a matter of bookkeeping, the water department 
 should receive compensation at a fixed rate for all the water 
 it supplies. On the other hand, the hygienic and social value 
 of a copious supply of w^ater is so great that the rates should 
 not be raised to the extent of preventing such use. Water 
 should be neither given away nor sold at a profit. 
 
 4. Wastes 
 ISIunicipal sanitation depends not simply on the supply of importance 
 pure water but on the disposal of the wastes of a city. This lem of dis- 
 is peculiarly a municipal problem, for the massing together of ^°|g^\f 
 large populations in a small area leads to the production of 
 dangerous waste products which in a larger area would almost 
 take care of themselves. The amount of the wastes of a city 
 is prodigious. It has been estimated that in a large city this 
 probably exceeds a ton per day for every head of the popula- 
 tion.^ Although much of this is in the form of sewage, yet a 
 large part must be collected from various sources and disposed 
 of in various ways. 
 
 iW. B. Munro, Principles and Methods of Municipal Administration, 
 p. 168.
 
 512 STATE AND MUNICIPAL GOVERNMENT 
 
 ciassiflca- The wastes of a city are generally classified under five main 
 
 thTdty's heads.^ The least harmful waste is the ashes which are the 
 
 wastes: product of commercial and household furnaces. These are 
 
 ^ ^^ practically free from all sources of contagion, but must not be 
 
 allowed to accumulate. Next to the sewage they are, perhaps, 
 
 the bulkiest of the wastes. In many cities their collection and 
 
 disposal is left to private initiative, but in the larger cities this 
 
 is done either by some city department — street-cleaning or 
 
 board of health — or it is let out to some contractor. The use 
 
 of ashes is limited chiefly to filling in and reclaiming unusable 
 
 ground. Unless the municipality owns such land and may 
 
 recoup itself by the sale of the reclaimed area, the collection 
 
 and disposal of ashes constitutes a fixed charge, either upon 
 
 the householder or upon the municipal treasury. 
 
 (2) Rubbish Rubbish comprises the miscellaneous assortment of inorganic 
 
 substances which accumulates in a great city — paper, boxes, 
 rags, bottles, tin cans. It contains no decomposable matter, 
 and for the most part can be easily consumed. Two methods 
 have been devised for dealing with rubbish. By the incinera- 
 tion method the rubbish is burned under forced draft and is 
 sometimes used to operate a municipal pumping or lighting 
 station. Since, however, it takes from five to seven tons of 
 rubbish to equal a single ton of coal, the daily supply of this 
 waste must be large in order to operate a municipal plant eco- 
 nomically. Another method involves a sorting process. Rubbish 
 contains many articles of commercial value which may be 
 picked out of the general mass and sold. The remainder must 
 be disposed of by dumping on waste ground, by burning, or, 
 in coast cities, by emptying into the sea. 
 
 (3) Refuse Refuse consists in the main of sweepings from the streets 
 
 and buildings. It contains both organic and inorganic matter 
 and is subject to decomposition. The chief source of refuse is 
 the street sweepings. In former days this had considerable 
 theoretical value as a fertilizer, but the cost of collection and 
 transportation far exceeded the possibility of obtaining any 
 
 ^See W. F. Morse, Collection and Disposal of Municipal Waste, p. 13; 
 also W. B. Munro, Principles and Methods of Municipal .\dministra- 
 tion, p. 168.
 
 CONVENIENCE 513 
 
 net revenue. With the introduction and spread of the motor 
 car and the decline of the use of horses in the city, street sweep- 
 ings have still less value and, in general, are treated like ashes. 
 
 Garbage is composed of the wastes from houses and hotels ; (4) Garbage 
 it is chiefly organic matter and is easily and quickly liable to 
 putrefaction. Different cities have attempted various methods 
 of disposing of it. In rural communities and in some cities of 
 over 100,000 population^ the city maintains a herd of hogs to 
 which this garbage is fed. Such a herd, however, may be 
 malodorous and, as experience has shown, is liable to infection. 
 Some cities bury the garbage, thus using it to fill in low land ; 
 other cities- dump it into rivers or into the sea. If carried a 
 sufficient distance from the coast the latter is a satisfactory 
 solution of the problem, but not infrequently the wind and tide 
 wash portions back and the beaches and shellfish beds are 
 polluted. Another method of disposal is incineration. This is 
 conducted on a large scale in Atlanta, Memphis, Milwaukee, 
 and other cities. Attempts have been made to utilize the heat so 
 generated for steam power, but since the garbage contains a high 
 percentage of water the experiments have been unsuccessful. 
 A final method of garbage disposal is by reduction, which in- 
 volves subjecting it to heat and pressure, thereby extracting 
 the oil and grease, which have some commercial value, while 
 the residue has some value as fertilizer. The great difficulty 
 with the reduction plant is that in spite of all attempts to 
 improve it a malodorous process is connected with it. If located 
 near a city, it is bound to arouse objection ; if at a distance, 
 the expense of the transportation of the garbage diminishes 
 the profits. 
 
 5. Sewage 
 
 The most voluminous and most dangerous of all the city's character 
 wastes is sewage. This is largely liquid and amounts to about o°se^ge" 
 one hundred gallons per capita daily. It is composed of the 
 wastes from the sinks, washing and toilet appliances of the 
 houses and hotels, and the wastes from factories, which not 
 only are of similar character to the household sewage but also 
 
 ^Cambridge, Denver, Providence, and Worcester. -New Orleans.
 
 514 STATE AND MUNICIPAL GOVERNIMENT 
 
 Problem 
 of sewage 
 disposal 
 
 may contain a large proportion of commercial waste, particu- 
 larly from dyeing plants. A third kind of sewage is the waste 
 water from the roofs and streets of the city, known as surface 
 sewage. Surface sewage in itself is not dangerous and can 
 with impunity be turned into any watercourse. The harmless 
 character of this kind of sewage has led cities, which are obliged 
 to purify the other kinds of sewage before discharging it into 
 watercourses, to construct separate systems in order to take 
 care of surface water. Household and factory sewage is ex- 
 tremely dangerous to health, both from the large amount of 
 putrefying matter it contains and the possibility of carrying 
 disease germs. 
 
 The problem of sewage disposal is distinctly characteristic 
 of cities. In sparsely settled rural communities the amount of 
 sewage is comparatively so small that it can with safety be 
 absorbed into the ground, although great danger may come 
 from the possibility of polluting the water supply drawn from 
 the wells. When, however, a large population is concentrated 
 on a small area the disposal of the sewage becomes an impor- 
 tant question. The construction of public sewers did not begin 
 in the United States until the nineteenth century, and even 
 these were primitive, being generally constructed of wood. 
 With the rapid increase of city population in the nineteenth 
 century and a better realization of the danger involved in sew- 
 age, more and more cities undertook to construct sewerage sys- 
 tems. The simplest and easiest method of disposing of the 
 sewage is to empty it into some watercourse. Cities situated 
 upon lakes, rivers, or on the seacoast have, at first thought, a 
 comparatively simple task, since all that seems necessary is 
 to construct a drain to the nearest large body of water. But 
 the problem is not so simple. Sewage discharged directly into 
 the sea may be thrown back on the city by the action of wind 
 and tides, and large municipalities are obliged to carry their 
 discharge pipes well out to sea. Even then the risk is great. 
 Cities along rivers and lakes not only run the risk of polluting 
 their immediate neighloorhood but of spreading this pollution 
 to other communities. Theoretically the amounts of water in 
 great lakes or rapidly llowing rivers so dilute the sewage that
 
 CONVENIENCE 515 
 
 there is little danger ; but Chicago found it advisable to cut a 
 great drainage canal and reverse the course of the Chicago 
 River, causing it to drain from Lake Michigan and carry the 
 sewage across the state of Illinois, emptying it into the Missis- 
 sippi. The large amount of water and the length of the canal 
 probably render even its vast amount of sewage innocuous. 
 Many cities, however, are obliged to treat their sewage in some 
 way before discharging it into watercourses. 
 
 The object of sewage purification is not to render the sewage sewage 
 absolutely pure but to render it comparatively inoffensive, so ''"" *^^ "*"' 
 that it will be innocuous to the water supply.^ Five or six 
 methods of treatment have been devised. The simplest is by 
 screening, which merely serves to remove the heavier solids d) screen- 
 and to enable the city to dilute the remaining amount. This '°^ 
 does not pretend to be a complete method of sewage treatment. 
 A more common way is by sedimentation. This consists in (2) sedi- 
 running the sewage into settling tanks, where it is allowed "®° 
 to stand for a certain number of hours and the solid matter is 
 precipitated. This precipitation is often hastened by the addi- 
 tion of lime or other chemicals. The liquid which is drawn off 
 in the sedimentation tanks is comparatively inoffensive, but the 
 disposition of the solid "sludge" presents another problem. 
 In London this is carried out to sea and dumped overboard ; 
 in Worcester, Massachusetts, it is used for filling in low land. 
 Another method of sewage disposal which reduces the amount 
 of "sludge" is the septic-tank process. In this the sewage is (3) septic- 
 
 11 ■ • r 1 1 T • • 1 1 tank process 
 
 allowed to stand m tanks and the quantity of sludge dimmished 
 
 by decomposition. What remains, however, must be removed 
 
 from time to time. There are three methods of filtration of (4) Fiiua- 
 
 sewage which have been tried in various places. Perhaps the 
 
 commonest type is that of the intermittent filter. Large beds (a) By the 
 
 of sand are prepared over which the sewage is allowed to flow ; tent filter 
 
 after it has filtered through the sand the beds must be allowed (b) By con- 
 
 t3.ct beds 
 
 to dry. A second method of filtration is by contact beds, which 
 
 lA comprehensive treatment of this subject is by Leonard Metcalf and 
 H. P. Eddy, American Sewerage Practice (3 vols.), Vol. III. For a brief 
 treatment see W. B. Munro, Principles and Methods of Municipal 
 Administration, pp. 197-206.
 
 5i6 STATE AND MUNICIPAL GOVERNMENT 
 
 (OBy 
 sprinklers 
 
 Sewage 
 farms 
 
 Organiza- 
 tion and 
 functions 
 of the sewer 
 department 
 
 consist of water-tight tanks filled with coke, slag, or some other 
 coarse material, in which the sewage is allowed to stand for 
 several hours. This process renders the sewage nonputrescible 
 and odorless and removes about 80 per cent of the bacteria. 
 The third filtration method is the sprinkler system, by which 
 the sewage is pumped through sprinklers or fountains which 
 play upon sand-beds. This removes about 90 per cent of the 
 bacteria, provided a previous period of sedimentation is allowed. 
 
 An entirely different method of sewage disposal is found 
 in the sewage farms. It has been long known that sewage has 
 a high fertilizing value, and various suggestions have been 
 made, looking toward its utilization. The method has been 
 worked out with considerable success in both Paris and Berlin. 
 In the latter city the sewer farms are about forty-five square 
 miles in extent. The sewage reaches the farms through ordi- 
 nary pipes and then is pumped into a standpipe and is dis- 
 tributed through irrigation ditches. During the spring and 
 summer the system works very well, but in the winter the 
 sewage must be stored in reservoirs. Sewage farms have been 
 attempted in the West, notably at Los Angeles, Pasadena, Salt 
 Lake City, and Colorado Springs, but in no case have they 
 been remarkably successful. 
 
 In many cities the administration of the sewers is placed 
 under a special board. The same arguments concerning the 
 necessity of planning and of long-time finance apply to the 
 sewerage system as have been discussed in connection with 
 the water department. The work of both these departments 
 lends itself to the board type of administration. Whether man- 
 aged by a board or a commissioner, experts of various sorts 
 must be engaged. The construction of sewers involves far- 
 sighted plans and often presents many difficult engineering 
 problems. The main lines of the sewer must be large enough 
 to care for the ever-increasing amount of sewage from a grow- 
 ing population and also must be sufficiently large to take care 
 of any sudden emergency, such as a cloudburst or heavy rain- 
 storm. The whole question of treatment is an extremely tech- 
 nical one, which neither a commissioner nor a board could 
 be supposed to handle alone. Experts must necessarily be
 
 CONVENIENCE 517 
 
 consulted as to the method of treatment adopted, and after 
 this has been adopted a sewerage engineer must be engaged to 
 supervise its successful operation. 
 
 Sewers are in the nature of permanent public improvements. 
 The expense is so large that their construction cannot be paid 
 for by current taxation. Therefore they are usually financed sewerage 
 by means of bonds running thirty, forty, and even fifty years. 
 Modern financial custom advocates the use of serial bonds as 
 opposed to the sinking-fund system. The disposition of the 
 sewage is so vital to the health of the city that no attempt is 
 made to operate the system for profit. In most cities, however, 
 a portion of the cost of construction is assessed against the 
 property owner, and the owners of new buildings not infre- 
 quently have to pay a sewerage entrance fee. From the very 
 character of the sewerage system it is one which lends itself 
 predominantly to public control. In 19 19 the cities having a 
 population of more than 30,000 actually expended $9,035,454 
 for sewers and sewage disposal. At the same time the combined 
 debt incurred by these cities for this purpose was $245,777,204. 
 Baltimore and Boston led the list with debts of $25,000,000 
 and $20,000,000 respectively. Chicago had a debt of $15,000,000 
 and Philadelphia of $14,000,000. No other city of this class 
 had had a debt of $10,000,000.^ 
 
 6. Public Utilities 
 
 The term ''public utilities" is sometimes used to describe Definition 
 the public services which are performed for the inhabitants of 
 the city either by the city government itself or by private com- 
 panies. Strictly speaking, all the services which have been 
 discussed in this chapter may be classified as public utilities ; 
 but since the maintenance of streets, the water supply, and the 
 disposal of the city's waste are so fundamental, they may be 
 considered as the normal and legitimate duties of any city gov- 
 ernment. There is less unanimity of opinion concerning the 
 supply of gas, electricity, heat, docks, terminal facilities, market 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (iqiq), PP- 184, 302.
 
 51 8 STATE AND MUNICIPAL GOVERNMENT 
 
 places, and other means of communication or trade. These 
 services are all so vital to the welfare and convenience of the 
 community that they are impressed with a public character and 
 from the very earliest times have been partially dependent upon 
 government regulation. Most of these services have a common 
 characteristic. They require the use of the streets or highways 
 or some public property. The right to use this public property 
 is generally expressed in a charter or franchise. Thus the so- 
 called utility companies depend for their very existence upon 
 a franchise granted by the city or state legislature. 
 Important One of the most important elements of a franchise concerns 
 
 elements in ^i i • i , •, t tc r i • • • 
 
 a franchise: the power which grants it.^ If a franchise giving a private 
 (i) Au- company the use of the streets of a city may be granted by the 
 granting State authorities, the principle of municipal home rule is seri- 
 ously violated and a most valuable resource of the city may be 
 given up without the consent of the citizens. On the other 
 hand, if the city governments are given freedom in granting 
 franchises, it has frequently been the case that unscrupulous 
 promoters have been able by corrupt means to obtain grants 
 for which they gave no adequate compensation and which were 
 then beyond the power of the city to control. Too often a 
 city government has sold its birthright for a mess of pottage. 
 The most modern method of granting a franchise is to vest 
 the authority in the power of some commission, dependent 
 upon approval either by the city government or by a popular 
 referendum. 
 (2) Duration A vital element in the franchise is its duration. Early fran- 
 chises were frequently granted without limited time and thus 
 in many communities were perpetuated. The modern tendency 
 is to limit the duration of the franchise. In many instances 
 this limitation is made too short. A private company will not 
 engage in erecting a plant to supply a public utility unless it 
 is assured of a certain profit. The iirst years of operation are 
 frequently at a loss ; consequently a sufficiently long time 
 should be provided for by the franchise so that the promoters 
 may obtain a fair profit upon their investment. This period 
 varies with the nature of the utility and the character of the 
 ^See Goodnow and Bates, Municipal Government, pp. 382-392.
 
 CONVENIENCE 519 
 
 city. In general no franchise is acceptable which runs for less 
 than twenty-five years, and few franchises should be granted 
 for a period of more than fifty years. 
 
 The courts have held that any business affected with a public (3) Reguia- 
 interest is subject to public regulation; that the legislature ^"'°° "*^^ 
 in the exercise of its police power may fix the rates charged 
 for the performance of such a service. These rates, however, 
 must not be so low that the owner obtains no profit, in 
 which case the courts have declared that he is deprived of 
 his property without due process of law. If, however, a fran- 
 chise has been granted in which the company is allowed to 
 charge a maximum rate, this is held to be in the nature of a 
 contract which may not be violated by the company. The 
 modern way of fixing rates is by means of a commission, acting 
 under the general legislative power to fix reasonable rates. 
 There are two types of commissions: those appointed by the 
 state authorities to fix rates for purely municipal utilities, as 
 in New York City; and general state commissions, which 
 supervise the action of the rate-detennining authorities in 
 cities. The question of what the rate should be is one in which 
 the public is vitally interested. Abnormally high rates make 
 too great a charge upon the public and deprive many persons 
 of the legitimate benefit of a public utility. Too low rates may 
 compel the company to curtail its service and prevent it from 
 paying interest on its obligations and dividends upon its stock. 
 A successful method has been worked out in Boston in dealing 
 with the gas company. This is known as the sliding scale.^ 
 The price of gas is fixed at 90 cents per 1000, and a standard 
 dividend of 7 per cent is allowed on the company's stock. As 
 the company decreases the price of gas it may increase its 
 dividend i per cent for every reduction of 5 cents. This scheme 
 was copied from the gas franchises in London, and similar 
 schemes have been adopted for the trolley fares in Cleveland. 
 Closely connected with rates is the question of the quality of 
 the service. In the case of gas the quality is subject to frequent (4) Quality 
 inspection. In connection with street-car service, commissions 
 
 ^See W. B. Munro, Principles and Methods of Municipal Adminis- 
 tration, p. 250, with references.
 
 520 STATE AND MUNICIPAL GOVERNMENT 
 
 may order cars to be run at certain times and in other ways regu- 
 late their service. It is of vital importance that there be some 
 authority to regulate the private operation of public utilities. 
 (5)Rever- A properly drawn franchise should provide that at the ex- 
 sion of plant pj^ation of the period the plant should revert to the munici- 
 pality. In most modern franchises the company is required to 
 set aside each year a portion of its income to amortize the out- 
 standing securities. Thus, according to the terms of a modern 
 franchise, the city will receive at the end of the period, if all 
 goes well, a running plant in good order, fully paid for, while 
 the promoters will have received a minimum dividend and, if 
 successful, larger profits upon their invested capital. 
 Types of In most American cities the supply of gas and electricity is 
 
 utmues in the hands of a private company. Franchises are granted for 
 the use of the public streets, and the modern tendency is to 
 subject such companies to strict control along the lines just 
 described. Some cities, however, have engaged in municipal 
 ownership and operation of these utilities with varying success. 
 Transmission of messages by means of the telephone and tele- 
 graph is also a service which is everywhere given to private 
 companies, with somewhat less supervision. Transportation of 
 passengers on the surface and elevated cars and in subways is 
 one of the most important of all the services in a large city 
 which are still in the hands of private companies. Originally 
 the franchises were granted without time limit and were in a 
 very small degree subject to public regulation. The modern 
 tendency all along the line is toward stricter public supervision. 
 In only a few cities does the city government actually operate 
 portions of the transportation system, but in many of the larger 
 cities the credit of the city has been granted to private com- 
 panies for constructing necessary public works. Thus the sub- 
 ways in Boston and in New York were built with public 
 funds and leased to the operating company on such terms 
 that at the end of the lease the subways themselves would have 
 been paid for. 
 
 The evidence is conilicting upon the relative merits of public 
 or private operation of pubUc utilities.^ Each utility must be 
 ' Sec Goodnow and Bates, Municipal Government, pp. 389-396.
 
 CONVENIENCE 521 
 
 judged by itself, and in many instances the character of the Relative 
 city and the efficiency of its government must be taken into municipal 
 consideration. There is httle doubt in the minds of most in- ^Itllil^^^ 
 
 OP" la lion 
 
 vestigators that the health and welfare of the city demand both of public 
 
 ^ utilities 
 
 public ownership and operation of the street, water-supply, 
 and sewerage systems. Beyond this there is no agreement. 
 The English boroughs have been quite successful in the opera- 
 tion of municipal gas plants. The same success has not at- 
 tended similar experiments in the United States. Neither the 
 English nor the American municipally operated electric-light 
 companies have been remarkably successful. In other fields of 
 municipal operation the evidence is so slight that no conclu- 
 sions can be drawn. It is probable, however, that a private 
 public-utility company can, if properly supervised, furnish its 
 service at a lower rate and is more economically run than a 
 municipal company. Evidence is overwhelming that an un- 
 supervised public-utility company can make large profits and 
 furnish cheap service, but this service may or may not be 
 satisfactory and adequate. There are, however, other elements 
 than mere economy to be considered. Public utilities are 
 conducted for the benefit of the public, and private gain should 
 be incidental to the service rendered. Social considerations 
 may require that a public service be rendered at a loss, as 
 in the disposal of sewage; or may demand that the service 
 be rendered with little or no profit, as in furnishing water. 
 A suitable and cheap system of transportation may make it 
 possible to distribute the inhabitants of a congested area of 
 the city. The relative merits of profit and of social advantage 
 must be weighed in determining the propriety of either method 
 of service. On the whole, the English boroughs, with their 
 form of government and with the caliber of men who are will- 
 ing to engage in municipal service, have been more successful 
 in operating public utilities than have the American cities. 
 Whatever theoretical advantages or disadvantages may be ad- 
 duced for one method or another, the general tendency is 
 strongly in favor of municipal ownership if not operation.
 
 CHAPTER XXIX 
 
 MUNICIPAL ADMINISTRATION. EDUCATION, 
 CHARITIES, AND CORRECTIONS 
 
 I. Education^ 
 
 Develop- Local education in the United States had its origin in the 
 
 St/onin act of the Great and General Court of Massachusetts of 1647- 
 the United gy ^j^jg gvery township with fifty householders must establish 
 an elementary school supported by taxation and every town of 
 a hundred families must set up a grammar school. The idea 
 of free education did not, however, spread rapidly or through- 
 out the entire country. Fees were frequently charged, and in 
 many communities there was no public provision for education. 
 But after the Civil War universal elementary education became 
 the rule. At present all the children below a certain age are 
 required to attend schools a portion of each year. Although 
 this is required by state law, the burden of maintaining these 
 schools and a large part of their administration is placed in the 
 hands of the local authorities. In New England localism is 
 carried to the extreme, and the schools of the cities are prac- 
 tically independent of county or state authorities. It is true 
 that they must conform to certain laws and maintain certain 
 standards, but these standards are ordinarily established with 
 the rural districts in mind. Outside of New England county or 
 state authorities have much wider powers, but throughout the 
 country the schools of a larger city are under the administration 
 of municipal authorities. 
 
 There is almost complete unanimity in the practice of Amer- 
 ican cities regarding the organization of the school department. 
 
 IS. T. Dutton and David Sneddon's "The Administration of Public 
 Education in the United States" is the st:indard authority. For brief 
 treatments of the subject as connected with municipal government, .see 
 W. B. Munro, Principles and Methods of Municipal Administration, 
 chap, ix, and Goodnow and Bates, Municipal Government, chap. xiii. 
 
 522
 
 EDUCATION, CHARITIES, AND CORRECTIONS 523 
 
 Practically everywhere this department is independent of the orgamza- 
 other organs of the city government and is commonly chosen schoo*/***^ 
 by popular election. In almost every city, moreover, it is simi- department: 
 larly organized and consists of a board of laymen composed, 
 in many instances, of men and women and an expert agent 
 known as the superintendent. 
 
 School boards are usually chosen as the result of popular (o The 
 election, quite frequently according to the nonpartisan method ; 
 that is, they are nominated by a petition and elected on a 
 ticket without party designation. The question which is most 
 discussed in the election of the school board is whether it should 
 be chosen from wards and districts or at large. Many investi- 
 gators advocate election at large for the reason that little dis- 
 tricts produce little men, and the school committeeman from a 
 ward would be under the control of the ward politicians. Elec- 
 tion at large commonly avoids these dangers, but brings with it 
 the possibility of certain other dangers which should be con- 
 sidered. Such election may result in the choice of all the mem- 
 bers of the school committee from one party, one section of 
 the city, one race, or one religious denomination, which in turn 
 may give to the entire school system of the city these religious, 
 racial, or local characteristics. This is to be deprecated. Under 
 the party system (and possibly under the system of election by 
 wards) it is usually avoided, and different races and sections 
 of the city receive some representation. Recently the system 
 of cumulative voting or proportional representation has been 
 applied in some cities to break the force of election at large. 
 In some cities — and these among the largest^ — the members 
 of the school board are appointed by the mayor. Little can be 
 said in favor of this mode of selection, for it mostly results 
 either in a partisan board or in the appointment by the mayor 
 of a board of quasi-experts. Experts have no place upon the 
 school board. In some cities — Philadelphia, for example — the 
 board of education is appointed by the courts, and in some of 
 the Southern cities it is elected by the city government. The 
 most popular method of choice, however, and the one which on 
 the whole gives the greatest satisfaction, is popular election. 
 1 Chicago, New York, and San Francisco.
 
 524 STATE AND MUNICIPAL GOVERNMENT 
 
 Functions of 
 the school 
 board 
 
 (2) The 
 school 
 superin- 
 tendent 
 
 Three main functions are as a rule allotted to the school 
 board. The first function in many cities is given to some com- 
 mittee of the city government rather than to the school board, 
 and deals with the acquisition of land and the erection of 
 buildings. These questions can well be decided in many in- 
 stances by the city government, and since the city council is 
 called upon to appropriate the money for the land and build- 
 ings, it may perhaps be well placed in their hands. It happens 
 frequently that a committee of the city council is governed 
 more by political than by educational considerations. Land 
 may be acquired and the type of building erected which Vvill 
 satisfy the political necessities rather than the educational needs 
 of the city. As a part of this function the school boards are 
 generally given the care and upkeep of the plants. A second 
 function of the school board is also largely an administrative 
 or business function. This deals with the contracting for sup- 
 plies, which, in those states where free textbooks are furnished, 
 may involve considerable amounts of money. Under this 
 function might also be placed the granting of permits for the 
 use of the school buildings after hours. The most important 
 function of the school committee, however, is the appoint- 
 ing of the superintendent and his assistants, the engaging of 
 teachers, the final determination of the curriculum, and the 
 questions of discipline. These four groups of activities require 
 diverse capabilities, and school boards ordinarily act through 
 such committees, on which are placed the members who show 
 some fitness for the particular type of work the committee is 
 supposed to perform. 
 
 The executive agent of the committee is the school superin- 
 tendent. He is usually elected by the committee for a definite 
 term of years. This term should be sufficiently long in order 
 to allow him to acquire a knowledge of the school system and 
 to supervise for a considerable length of time the policy which 
 he is authorized to put into effect. The relation of the commit- 
 tee to the superintendent varies in different states and cities and 
 in the same city with different administrations. Although tech- 
 nically the superintendent is the executive agent of the school 
 board, he is often the controlling factor in its deliberations.
 
 EDUCATION, CHARITIES, AND CORRECTIONS 525 
 
 He is the expert and gives his full time to the interests of 
 the schools. The school board is composed of laymen who at 
 most give only a small proportion of their time. By judicious 
 recommendation, therefore, a skillful superintendent very fre- 
 quently can get the school board to undertake a course of 
 action which he suggests. In carrying out the policies adopted 
 in ordinary times the superintendent receives the support of 
 the board, and his judgment and evidence are for the most 
 part accepted against that of any other person. These are the 
 relations which exist when the superintendent is the unanimous 
 choice of the whole board. As the superintendent's term of 
 service continues, however, and the composition of the school 
 board changes, it usually happens that new members become 
 critical of some of his actions and older members may become 
 disaffected. Thus the success of the system depends to a large 
 degree upon the ability of the superintendent to win and 
 maintain the confidence of his board. 
 
 The superintendent has three main duties to perform. In Duties of 
 the first instance he selects the teachers. It is entirely true intendent': 
 that in most cities the school board appoints the teachers, but (a) seiec- 
 
 ^^ . tion of 
 
 this appointment is often little more than ratification of a pre- teachers 
 vious selection on the part of the superintendent. Even where 
 the system of competitive examinations is used for appointing 
 the teachers, the superintendent is often called upon to exercise 
 considerable skill in the choice of the particular candidate from 
 the group certified. His ability to pick good teachers in a very 
 large degree determines the success of the whole administra- 
 tion. A second function deals with the course of study. In (b) Deter- 
 
 .... , . . • f X e mination of 
 
 many mstances state legislation determines certain features of the course 
 the curriculum, but there is always a rather wide field of choice °* ^^^^^ 
 left for the school board to make. Few school boards contain 
 members sufficiently expert to deal with these questions. This 
 is primarily the work of an expert. The superintendent thus 
 frames the course of study, which is submitted to the school 
 board for criticism and approval. A third function of this (c) Disci- 
 
 . . r 1- pline and 
 
 official is concerned with the discipline and the promotion 01 the promotion 
 teachers. Experience here has shown that it is a wise course to 
 leave in the hands of the board the formal action in suspending
 
 52 6 STATE AND MUNICIPAL GOVERNMENT 
 
 (d) Relation 
 to the 
 community 
 
 The 
 teachers ; 
 
 (i) Appoint- 
 ment 
 
 (2) Ex- 
 amination 
 
 (3) Promo- 
 tions 
 
 (4) Term 
 
 (5) Salary 
 
 or discharging teachers, but never to act except upon the advice 
 of the superintendent. Both the teacher and the general public 
 feel that the action of a board is less arbitrary than that of a 
 single individual, and the action of the board, although taken 
 at the advice of the superintendent, relieves the latter of 
 certain disagreeable responsibilities. In like manner, promo- 
 tions are commonly passed upon by the board, though the 
 advice of the superintendent is often conclusive. Purely auto- 
 matic promotions, depending upon the length of service of a 
 teacher, are never satisfactory, and in every system the super- 
 intendent is asked for official or unofficial recommendations. 
 Finally, the superintendent has certain duties inherent in his 
 position, yet unconnected with the school system. He may 
 make himself a powerful influence in the community not simply 
 in educational affairs but in other civic movements. There is 
 great danger, however, that such influence and action may be 
 misunderstood, and great care is necessary that he attempt no 
 political or partisan action. 
 
 The backbone of the school system is the body of teachers. 
 The teachers in the public schools are in many instances the 
 most permanent of the city employees and certainly possess 
 the greatest opportunity for influence. The original method of 
 choice of teachers in practically every city was by vote of the 
 board upon the recommendation of the superintendent. By this 
 means the greatest emphasis was laid upon the personality of 
 the teacher and no formal test was made of capacity and knowl- 
 edge. In an increasing number of states an examination is 
 now required. Teachers who pass the examinations receive 
 certificates, but possession of a certificate by no means guaran- 
 tees an appointment. Moreover, by passing advance examina- 
 tions, teachers become eHgible for higher positions, although 
 appointment does not necessarily follow. This system of gen- 
 eral examination has an excellent effect without compelling the 
 superintendent to select any particular candidates. In some 
 cities, however, the competitive system has been introduced ; 
 even then not the highest one but a group of candidates are 
 certified. The tenure of the teacher is practically during good 
 behavior, and dismissals are extremely rare. The salaries of
 
 EDUCATION, CHARITIP:S, AND CORRECTIONS 527 
 
 school-teachers are small, not only absolutely, but relatively to 
 other municipal employees who perform less exacting duties. 
 Some states have adopted a system of pensions which grant a 
 retiring allowance outright. In other states the contributory- 
 pension system has been adopted. 
 
 The school plant comprises more than the mere school build- The school 
 ing. In rural and semirural cities it may include the adjoining ^ ^'^ 
 playgrounds, and in the largest cities the building should con- 
 tain adequate provision for recreation. The plant also contains 
 the equipment in the shape of desks, blackboards, laboratories, 
 and other necessary instruments of instruction. Such a school 
 plant is an expensive investment. Often cities are tempted to 
 build extravagant buildings. When it is remembered that 
 school buildings should be near the centers of the school popu- 
 lation, which may shift in a few decades, the futility of attempt- 
 ing to erect monumental or extravagant buildings is clearly 
 seen. Moreover, the requisites of education are constantly 
 changing ; new demands may be made upon the schools which 
 old buildings cannot satisfy. It would seem far better economy, 
 therefore, to construct simple, well-built, fireproof buildings 
 which might serve the needs of a single generation and which, 
 if then found unsatisfactory, could be torn down and replaced 
 by a new building either in the same or another locality. 
 
 The function of the school system is primarily to furnish Functions of 
 elementary, grammar, and high-school education, but this is by system""^ 
 no means the end of its entire activity. In large cities, particu- 
 larly, new duties and functions are being constantly given to 
 the schools that greatly increase their usefulness. Thus in 
 many cities evening classes are conducted for persons above the 
 normal school-age who are employed during the day-school 
 hours. Adult foreigners and immigrants frequently take advan- 
 tage of these classes, and the usefulness of the school system 
 is thereby greatly extended. In some states education is not 
 confined to the old accepted cultural definition ; it includes edu- 
 cation along special lines — for years there have been courses 
 in manual training for the boys and in cooking for the girls. 
 But special vocational schools have more recently been intro- 
 duced, where the children are taught particular trades or
 
 52 8 STATE AND MUNICIPAL GOVERNMENT 
 
 occupations. As a result of the study of the mental condition 
 of the school children, it has been found wise to establish in 
 some communities special schools for defectives and for children 
 who are below normal intelligence. Other schools have been 
 established for children suffering from some physical disability, 
 and the open-air schools have proved of great value. The 
 schools, moreover, furnish a convenient vehicle for giving defi- 
 nite instruction along certain lines which the state or city wishes 
 emphasized ; thus the public health is greatly aided by the 
 instruction given to the school children as to the effect of over- 
 indulgence in alcohol and narcotics, while the frequent inspec- 
 tion of the school children by the school physician and nurse 
 enables the authorities to detect incipient disease and to recom- 
 mend treatment or isolation, thus preventing epidemics. In 
 some cases special clinics, like the dental clinics, are established 
 in connection with the schools, where children may be treated 
 without expense or at a nominal charge. The schools, more- 
 over, serve as excellent agents for good citizenship and seek 
 not only to teach a knowledge of the operations of municipal 
 and state government but to inculcate a proper moral standard 
 in dealing with these problems. Finally, the school building 
 may be made a social center at which various local organiza- 
 tions may meet for the purpose of education or recreation. 
 School The school systems are almost entirely supported by taxa- 
 
 tion. It is true that some income is derived from fees charged 
 to nonresidents and that some slight revenue comes from gifts, 
 but this amount is almost negligible. Education is expensive. 
 The total amount spent by the cities having a population of 
 over 30,000 in 191 9 was more than $200,000,000, or a per- 
 capita expense of $6.89. As might be expected. New York 
 City expended the greatest amount ($44,975,896), but Los 
 Angeles had the greatest per-capita expense ($10.88). Out of 
 the two hundred and twenty-seven cities of the United States 
 having a population of more than 30,000, only six cities^ (and 
 
 1 Charleston, South Carolina; Mobile, Alabama; Shrcveport, Louisi- 
 ana; Winston-Salem, North Carolina; Portsmouth, Virginia; Columbia, 
 South Carolina. Sec Dcixirtmcnt of Commerce, Bureau of the Census, 
 Financial Statistics of Cities (1919), pp. 204-209.
 
 EDUCATION, CHARITIES, AND CORRECTIONS 529 
 
 these all in the South) spent in 191 7 less than S3 per capita 
 for their public schools. Shreveport, Louisiana, has the dis- 
 tinction of having the smallest per-capita expense ($2.55). Not 
 only is a large amount spent for schools, but their costs is the 
 greatest single item in the city's budget. In all the cities having 
 a population of more than 30,000 in 19 19 the schools took more 
 than 31 per cent of the cost of the city government, or three 
 times as much as any other single department.^ In no city 
 did the cost of the schools consume less than a fifth of the 
 entire revenue of the city — generally between 25 and 35 per 
 cent, and in Norristown, Pennsylvania, nearly 60 per cent. 
 Not only are the schools absorbing a large proportion of the 
 cities' revenue but they are demanding a constantly increas- 
 ing proportion. This rapidly growing demand comes in a large 
 measure from the newer uses to which the educational plant 
 is put. Admitting that most of the recent tendencies in edu- 
 cation are for the best interests of the people, the question may 
 properly be asked whether the cities can afford to furnish 
 all these types of education without charge. As will be seen, 
 the debts of the cities are increasing faster than either their 
 population or their taxable wealth, and a limit must be placed 
 on some of the expenses. 
 
 2. Charities and Corrections 
 
 The earliest form of municipal charity was poor relief. In poor relief: 
 England relief of the poor has been a duty of the towns since 
 Queen Elizabeth's time, and in New England this system has 
 been followed. Outside of New England poor relief is admin- 
 istered almost entirely by the county in the South and is shared 
 by town and county in other portions of the country. Still there 
 are important exceptions to this statement. For example, in 
 New Orleans, Richmond, and Charleston poor relief is provided 
 under the municipal government, while Buffalo, Rochester, and 
 Jersey City, in the North Atlantic States, have no municipal 
 poor relief, but leave the matter to the county authorities. 
 
 iThe highway and the police departments each expended a little over 
 10 per cent of the city's revenue. See Department of Commerce, Bureau 
 of the Census, Financial Statistics of Cities (1919), pp. 210-212.
 
 530 STATE AND MUNICIPAL GOVERNMENT 
 
 (i) Organ- 
 ization 
 
 (2) Method 
 of granting 
 
 Out-of-door 
 poor relief 
 
 Hospitals 
 
 Where the rehef of the poor is one of the municipal func- 
 tions, there is a body or committee called overseers or guardians 
 of the poor. This committee is either elected directly by the 
 people or appointed by the mayor — more cities adopting this 
 latter plan. It may be a rather large, unpaid board or a 
 comparatively small board whose members receive some salary. 
 Whether it is large or small, paid or unpaid, there is usually 
 an executive officer known as the agent or commissioner who 
 is charged with the actual administration. 
 
 Poor relief is afforded ordinarily through an almshouse, to 
 which indigents may be sent. This almshouse is under the 
 control of a keeper, who acts under the direction of the board 
 or commissioner. Originally there was little attempt made to 
 classify the inmates of almshouses, and indigents, insane, and 
 feeble-minded were herded together. With the advance of 
 science this has been changed, and the sick and defective are 
 sent to other institutions. 
 
 Out-of-door poor relief is not granted to any great extent in 
 American cities. Where it is granted, it commonly takes the 
 form of free medical attendance or a contribution of coal or, 
 in rare cases, a small grant of money. Relief which is given 
 to others than inmates of the almshouses, as a rule comes 
 through the churches or some outside charitable agencies. 
 
 In practically every American city there is at least one hos- 
 pital. These hospitals are maintained in some cities entirely 
 by the municipal authorities under either a specially appointed 
 board of trustees or a division or department of the board of 
 health. In other cities hospitals are managed by trustees or 
 private corporations and often receive a contribution from the 
 city. Where no definite contribution is given by the city gov- 
 ernment the expenses of indigent persons are paid by the city 
 on the certification of the overseers or the commissioner of poor 
 relief. As has been pointed out, some states require munici- 
 palities to maintain an isolation hospital, and the laws of other 
 states compel the city or county to support a tuberculosis nurse, 
 while not a few of these cities and counties have established 
 special sanatoriums for the treatment of that disease. The mod- 
 cm tendency is for the city to treat its sick in appropriately
 
 EDUCATION, CHARITIES, AND CORRECTIONS 531 
 
 different ways and either to establish or to contribute to the 
 specialized hospitals which modern medicine now requires. 
 
 Many cities are undertaking specialized care of dependent Care of 
 or defective children. The simplest form is a day nursery, which 
 releases the mother from the care of her child while she is at 
 work. Children's homes or placing-out agencies are found in 
 not a few cities, while more contribute to the support of private 
 institutions for the benefit and protection of needy citizens. 
 Closely analogous to these children's hospitals and homes are 
 the special schools which some cities maintain for defectives, 
 and sometimes certain classes of defectives are treated in pri- 
 vate institutions at the expense of the city or state, even though 
 they are not in the city, but in some other community. 
 
 It would be impossible to enumerate all the varieties of other 
 charity which are found in our great cities. Some of these 
 could hardly be classified as charities any more than the schools 
 should be regarded as charitable institutions, for they perform 
 a municipal service. In this category might be found the 
 municipal playground, the swimming pools, the recreation fields, 
 and so forth. Other charities are designed to deal especially 
 with dependent classes, particularly with deserted wives or 
 dependent children. It is difficult to draw the line between those 
 municipal activities which are designed for the help and im- 
 provement of citizens of all classes and affect the poor and well- 
 to-do alike and those which deal primarily with the indigent. 
 
 In the larger cities of the United States there generally is a Department 
 department of charities. This department may include the 
 administration of poor relief which has already been described, 
 but it ordinarily includes far more. The modern tendency is 
 to organize this department under a single commissioner with 
 deputies subordinate to him, but in many cities the board type 
 of organization is followed. The single commissioner probably 
 has the advantage in dispatch and efficiency, but from the very 
 nature of charitable relief a board representing various grades 
 of opinions probably gives better satisfaction. 
 
 In the United States the municipal courts are usually state corrections 
 courts administering state law within the municipality. The 
 legislatures of the states have from time to time established
 
 532 STATE AND MUNICIPAL GOVERNMENT 
 
 special courts for municipalities in order to facilitate the ad- 
 ministration of justice and to meet their special problems. Thus, 
 in the largest cities we find juvenile courts, courts of domes- 
 tic relations, small-claims courts, courts of conciliation, night 
 courts, day courts, and so forth. It should be repeated, how- 
 ever, that these courts administer state law as well as the 
 ordinances which the state has allowed the city to make. The 
 judges of these courts are chosen according to state law : in 
 Massachusetts they are appointed, as are all the judges; in 
 other states they are ordinarily elected (sometimes unfortu- 
 nately) according to districts or wards of the city. These so- 
 called municipal courts, particularly those dealing with juvenile 
 cases and domestic relations, are as a rule provided with pro- 
 bation officers and sometimes with medical and social workers. 
 Especially in connection with children reformation rather than 
 punishment is sought. The correctional institutions are pri- 
 marily those established by state law and include not simply 
 jails, houses of detention, and reformatories but reform schools 
 and institutions for education and improvement. Only in the 
 largest cities are these supported and controlled by the govern- 
 ment of the city. As a rule they are managed by commissioners 
 or boards of trustees appointed by state authorities (or, in some 
 rare instances, by the city authorities) or chosen by popular 
 election. It is extremely difficult to classify these as municipal, 
 state, or private institutions.
 
 . CHAPTER XXX 
 
 MUNICIPAL ADMINISTRATION. MUNICIPAL 
 
 FINANCE 
 
 The problem of financing American cities is most important importance 
 
 . , , . -J c of municipal 
 
 and serious.^ The previous chapters have given some idea oi a finance 
 few of the many functions which American cities are now un- 
 dertaking. None of these services can be performed without 
 money. The problem of municipal finance involves primarily 
 an attempt to procure the money necessary to pay the expenses 
 of the government and administration. The amount needed is 
 startling. Thus in 19 19 the two hundred and twenty-seven cities 
 in the United States having a population of more than 30,000 
 raised $1,224,112,714 and spent $1,233,111,835.- These figures 
 are larger than those of the peace budgets of many European 
 states. But large as the figures are in aggregate, their signifi- 
 cance is more clearly seen when reduced to per-capita figures. 
 These same American cities raised $35.32 per capita and ex- 
 pended $35.58 per capita.^ Assuming the average size of a 
 family as five, this means that the average weekly expendi- 
 ture in cities having a population of more than 30,000 was 
 $3.40 a week per family. Municipal finance may be best 
 studied under four heads: revenue, expenditure, accounting, 
 and debts. 
 
 iC. F. Bastable, Public Finance, presents a comprehensive treatment 
 of the whole subject. An excellent account of municipal finance is found 
 in W. B. Munro's "Principles and Methods of Municipal Administra- 
 tion," chap. X. See also Goodnow and Bates, Municipal Administration ; 
 chaps, xiii, xiv, xv, and xvi are extremely valuable as giving a compara- 
 tive study of American and European municipal finance, but the figures 
 quoted are now out of date. 
 
 -Department of Commerce, Bureau of the Census, Financial Statis- 
 tics of Cities (iQig), pp. 1 18-1 19. 
 
 2 Ibid. pp. 140-141. 
 
 533
 
 534 STATE AND MUNICIPAL GOVERNMENT 
 
 I. Revenue 
 
 Sources of IVIunicipal revenue is derived from several sources. The most 
 revenue^ important of these is taxation, and the most important kind 
 of taxation is the general-property tax, which contributes about 
 65.5 per cent of the total revenue. Some cities attempt to 
 collect a poll tax, but this rarely contributes a large percentage 
 of the total revenue.^ All cities require business and license 
 taxes, which contribute about 5 per cent of the revenue for all 
 the cities having a population of over 30,000. In the South 
 these taxes are widespread and bring in considerable revenue. 
 Another source of revenue is derived from special assessments 
 and charges for outlays. These bring in about 5.6 per cent for 
 all the cities, but in one" the amount received reaches 31 per 
 cent of the total revenue. A source of revenue which was at 
 , first greatly neglected but which now is increasing in im- 
 portance is found in the earnings of public-service enterprises. 
 For all the cities over 30,000 this source contributed 10.5 per 
 cent of the revenue, but in Kansas City, Kansas, 44.7 per cent 
 was derived from this source.^ The remainder of the city's 
 revenue is derived from fines, earnings of general departments, 
 highway privileges, rents and interest, subventions, grants, 
 gifts, and donations. This last source of revenue amounts to 
 4.2 per cent for all the cities, but rises to 41.9 per cent in 
 Washington, D.C.^ 
 
 ^Norristown, Pennsylvania, derives 4.7 per cent of its revenue from 
 this source. Department of Commerce, Bureau of the Census, Financial 
 Statistics of Cities (1919), pp. 143-145. 
 
 ^Stoclcton, California, East Chicago, Illinois, and Bellington, Washing- 
 ton, obtain 27.8 and 27.4 per cent respectively from this source. Wichita, 
 Kansas, and South Bend, Indiana, obtain 24 and 25.9 percent respectively. 
 In no other city does it equal 25 per cent. Department of Commerce, 
 Bureau of the Census, Financial Statistics of Cities (1019), pp. 143-145. 
 
 ^Jacksonville, Florida, obtained 42 per cent from this source ; Austin, 
 Texas, 38.3 per cent ; Tacoma, Washington, and Holyoke, Massachusetts, 
 37.4 and 37.7 per cent respectively ; Hamilton, Ohio, New Orleans, Lou- 
 isiana, and Pasadena, California, 30 per cent or more. Department of 
 Commerce, Bureau of the Census, Financial Statistics of Cities (1919), 
 
 pp. 143-145- 
 
 "^ Dayton, Ohio, receives 25.2 per cent from this source; Mobile, Ala- 
 bama, 24.1 per cent; Berkeley, California, 21.4 per cent; Tampa, Florida,
 
 MUNICIPAL FINANCE 535 
 
 As has been said, the bulk of the city's revenue is derived i. The 
 
 general 
 property tax 
 
 from the general-property tax. This is a direct tax laid upon ^^""^'' 
 
 all kinds of property, real and personal, tangible and intangible, 
 within the jurisdiction of the city. In administering this tax 
 certain important problems must be studied — the kind of prop- 
 erty to be taxed, the valuation of this property, the rate at 
 which it should be taxed, and the collection of the tax. 
 
 The kind of property which the city is allowed to tax is (i) Kinds of 
 determined by the state. There is good reason for this, because, be°uxed ^° 
 should municipalities be allowed to exempt certain classes of 
 property or to tax other classes, the taxing power might be 
 used to drive away or to attract certain kinds of business. The 
 power to tax — involving as it does the power to destroy — is too 
 great a weapon to be given into the hands of the various cities 
 to use as they think wise without any uniform supervision. 
 Originally the states for the most part allowed the cities to tax 
 all kinds of property within their jurisdiction, although until 
 comparatively recently cities were not permitted to tax the 
 franchises of corporations. In many states the tendency now is 
 to tax the franchise of corporations and remit to the cities 
 concerned their proper share. In most states the great bulk 
 of the general-property tax is derived from two classes of 
 property — real estate and personal property in the form of 
 securities. Some states, however, as will be seen, are exempting 
 intangible property from municipal taxation and collecting by 
 state authorities a corporation, a securit}^, or an income tax, 
 of which a proper share is remitted to the different cities.^ 
 
 The assessment of personal property in most cities is made (2) Assess- 
 by a board of assessors who attempt to set a value upon the 
 property existing within the jurisdiction of the city. Originally 
 assessors were almost everywhere chosen by popular election, [Assessors] 
 often in wards. The result was that they were subject to politi- 
 cal influence and personal appeal from their constituents. They 
 
 25.3; West Hoboken, New Jersey, 20.5 per cent; San Jose, California, 
 26.7 per cent; Wilmington, North Carolina, 2 2.g per cent. No other cities 
 derive as much as 20 per cent from this source. Department of Commerce, 
 Bureau of the Census, Financial Statistics of Cities (1919), pp. 143-145. 
 ^See pages 227-228.
 
 536 STATE AND MUNICIPAL GOVERNMENT 
 
 frequently attempted to favor the inhabitants of their own ward 
 at the expense of the rest of the city. The more modern prac- 
 tice is appointment by the mayor either with or without con- 
 firmation of the city council, although in many cities they are 
 still elected by the city council. In the large cities the assessors 
 may have some special training and qualifications for their 
 duties, but ordinarily they are untrained men. 
 (3) vaiua- As a rule the valuation of real estate is made most unscien- 
 reai esute tifically. Hardly ever is the assessment based upon the actual 
 value of the property ; the assessors attempt to discover either 
 what the property would bring at a forced sale or what it is 
 assumed to be worth. In both cases this is sheer guesswork, 
 and quite often this guesswork is complicated by the assessor's 
 desire to treat his friends with leniency. Many cities assess 
 both land and buildings at one valuation ; in others a more 
 scientific attempt is followed in order to determine separately 
 the value of the land and of the buildings. In the valuation of 
 buildings there are many complications — the nature and struc- 
 ture of the building, the amount which would be allowed for 
 depreciation, and so forth must all be considered. In the largest 
 cities real estate is scientifically assessed by dividing the city 
 into several sections and determining the valuation of property 
 according to the character of the section.^ Thus, residence 
 property is appraised as residence property, not as property in 
 the wholesale district; agricultural land, if any exists (as it 
 frequently may in rural cities), is appraised according to the 
 purpose for which it is used, not as the land in the wholesale 
 district. In addition maps are prepared to show the size of 
 each lot, and special rules for valuation are made to determine 
 the relative value of lots on the same streets. If this work has 
 been carefully and scientifically done by an impartial board, 
 there is more likelihood of getting a true valuation free from 
 personal political influence. In the same way the large cities 
 frame rules for the valuation of buildings, classifying them 
 according to the type of construction and applying a fixed 
 system of depreciation within the different classes. 
 
 'See W. B. Munro, Principles and Methods of Municipal Administra- 
 tion, pp. 416-420, with references.
 
 MUNICIPAL FINANCE 537 
 
 The assessment of personal property is attended with great (4) vaiua- 
 difficulties. Tangible property may perhaps be discovered and Sgibie 
 assessed, although the disclosure of this kind of property is P^Tm^ 
 often attended with considerable inquisition. In some states 
 the assessors visit and make personal inspection of the premises 
 of the citizens ; in others the citizens are required to make a 
 sworn return of all their personal property with its value, on 
 the basis of which the assessor levies the tax. The true valua- 
 tion of tangible personal property is even more difficult to ob- 
 tain than that of real estate, and at best only an approximation 
 can be hoped for. 
 
 Intangible personal property, such as stocks, bonds, mort- (5) vaiua- 
 gages, bank deposits, and so forth, is extremely difficult to ?ntan*'gibie 
 discover or to tax accurately. Formerly most cities relied upon ^^o^l'^t^ 
 the sworn statement of the owners as to the amount and value 
 of property in this class. If, however, securities which had a 
 fixed par value were to be taxed at the same rate per Siooo as 
 real estate, a large portion of a person's income would be 
 taken in taxation. Thus a thousand-dollar 4 per cent bond 
 would yield $40, and in a city where the tax rate was $20 a 
 thousand the owner would be deprived of half of this income. 
 This fact led to the general concealment of intangible personal 
 property. The state law might require the citizen to make a 
 sworn declaration of all the property he possessed of this sort, 
 but citizens would perjure themselves in making their declara- 
 tion or (more commonly) refuse to make such a declaration. 
 In case of such refusal the assessor would set the tax at what 
 he thought the citizen would stand. Here came in political 
 influence, party influence, and personal friendship. So it hap- 
 pened that a vast amount of intangible personal property alto- 
 gether escaped taxation. The result was that the personal 
 property which was taxed and all real estate had to pay a 
 much higher rate than would have been necessary had all in- 
 tangible personal property been taxed. The result was that 
 the general-property tax both was unjust and failed to produce 
 at a reasonable rate an adequate revenue. 
 
 The general-property tax had failed because of the common 
 requirement that all property within the city must be taxed
 
 538 STATE AND MUNICIPAL GOVERNMENT 
 
 2. New 
 forms of 
 taxation 
 
 (i) The 
 state 
 income tax 
 
 at the same rate. This, as has been shown, forced intangible 
 property into hiding. The problem was to secure such a rate as 
 would prevent the concealment of intangible property and yet 
 produce an adequate revenue. This could only be accomplished 
 by a classification of property, and in order to do this it was 
 frequently necessary to amend the state constitutions, which 
 required that all laws should be equal and uniform. Many 
 states have now done this and have allowed the legislature 
 to classify the property within the state. This has already 
 disclosed many advantages in the way of bringing intangible 
 property out of hiding. This system is capable of further de- 
 velopment, and a method of classification of property and taxa- 
 tion for police purposes may be developed. Thus, unimproved 
 real estate, if taxed at a higher value than improved real estate, 
 will tend to prevent the holding of real estate for an apprecia- 
 tion of value and may force the erection of much-needed houses. 
 So, also, tenements of a dangerous type might be taxed at a 
 higher rate than more modern tenements, thus forcing the 
 owner to make the necessary improvements. Such use of the 
 power of taxation for police purposes could safely be intrusted 
 only to the state legislature and should not be vested in the 
 hands of the city council. The most common use of the classi- 
 fication that has been made is the distinction between real 
 estate and intangible property. Thus, some states^ have re- 
 duced the taxation on intangible properties to a very low figure, 
 with the result that the amount of declared intangible property 
 has greatly increased and the sums derived from this low, fixed 
 tax have been greater than what the authorities attempted to 
 collect under the old system. 
 
 The most up-to-date method of raising revenue is by levying 
 a tax upon the personal incomes of the citizens. If this were 
 assessed as the old general-property tax is there would be little 
 improvement, for the income tax would be evaded as easily as 
 the tax on intangible property. The more modern method — 
 which was first adopted in Wisconsin and now has been taken 
 over by many states — is for a state board of assessors to require 
 all the inhabitants of the state to make sworn, detailed returns 
 ' Tor example, Iowa, Maryland, Minnesota, and Pennsylvania.
 
 MUNICIPAL FINANCE 539 
 
 of the source and amount of their income. These returns are then 
 examined and followed up, and the tax is collected by the state 
 authorities, who remit to the cities the proportion due them.^ 
 
 A fruitful source of revenue lies in the numerous public- 3. Taxation 
 service enterprises which are found in every city. Trolley-car service 
 companies, telephone and telegraph companies, electric-light enterprises 
 companies, all possess both personal and real property, tangible 
 and intangible, which should contribute to the revenue of the 
 city in which these corporations operate. The taxation of 
 public-service companies, however, is not a simple problem. 
 Various methods of taxation have been attempted. The most 
 obvious course is to tax the real estate of the company lying 
 within the jurisdiction of the city — the land and buildings, the 
 tracks, the poles, and the wires. This is comparatively easy to 
 discover and to fix a valuation upon. The greatest value, how- 
 ever, of a public-service corporation lies not in its tangible 
 property but in its intangible property ; that is, in the franchise 
 which gives it the right to use the streets of the city for its 
 wires, conduits, or tracks. How shall the valuation of this 
 franchise be determined ? A simple method is to tax the fran- 
 chise on the basis of the number of miles of tracks or wires or 
 of poles, which the company possesses within the city, but this 
 is open to serious objections. Such taxation may prevent the 
 company from extending its service to less profitable fields. 
 A second method is to tax the franchise on the basis of its net 
 earnings, but these are difficult to fix, and their determination 
 may open the door to fraud and corruption. The method which 
 is generally accepted as the best is to tax the gross earnings of 
 the company. These are easily discovered. A danger, how- 
 ever, is always present in taxing such gross earnings. To the 
 city government they seem large, and the politician frequently 
 forgets that a large part of these earnings must be devoted to 
 the payment of fixed charges, such as interest on the bonds, 
 the upkeep of the property, and an adequate dividend on the 
 capital invested in the company. The temptation is always to 
 levy too high a rate and thus cripple the company, for it should 
 be remembered that a public-service corporation is a business 
 
 ^See page 2:7.
 
 taxes 
 
 540 STATE AND MUNICIPAL GOVERNMENT 
 
 concern and cannot serve the public as it should unless it re- 
 ceives an adequate return. Therefore, unless the city refrains 
 from excessive taxation of the gross earnings, the company can- 
 not extend or improve its service to meet the needs of a growing 
 community. Finally, it should be remembered that the users 
 of the utility are the ones who ultimately pay the taxes either 
 in increased rates or in decreased service.^ 
 
 4. Business Most cities levy licenses and taxes upon special kinds of 
 business. In the Southern cities there are many taxes of this 
 sort and the amount received is quite large, although it forms 
 only a small percentage of the entire revenue. The extension 
 of such a system is attended with danger. Certain types of 
 business are easy to classify and to subject to a proper tax, 
 but within these broad types there are many varieties and 
 grades which will necessitate special rates. The classification of 
 businesses by the city government opens the doors to favoritism 
 and persecution. INIoreover, a license tax, classified and rated, 
 ultimately becomes little more than a property or income tax. 
 
 5. Special Many cities obtain large amounts as the result of special 
 assessments. As has been seen, it is a common custom to levy 
 upon the adjacent property the entire cost of any improvement 
 which has been made, or a large proportion of it. Thus, street- 
 paving, the highways, and, in some instances, the extension of 
 water and sewer service are charged upon the abutters. This 
 custom, as well as the success of the collection, varies in dif- 
 ferent portions of the country. In some states the greater part 
 of the cost of the improvement is recovered by taxation, but 
 in others they are not so successful. Thus, among the largest 
 cities Chicago obtains 12 per cent of its revenue from this 
 source, while Philadelphia and Boston secure less than i per 
 cent.^ If the assessment for improvements is not made until 
 the entire improvement has been completed, there is less likeli- 
 hood of its collection than when the abutter is taxed each year 
 for a proportionate part of the whole. 
 
 ^As in the question of tfie regulation of rates, sociological rather than 
 financial considerations are often influential. See page 519. 
 
 -Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919)1 P- 143- 
 
 assessments
 
 MUNICIPAL FINANCE 541 
 
 It has been noted, the large cities in the United States obtain e. Earnings 
 about 10 per cent of their revenue from the earnings of public- service 
 service enterprises. In the former German Empire approxi- enterprises 
 mately 25 per cent was so obtained, and in the English cities 
 about the same amount. As has been seen, both the English 
 and German cities have gone much further in the development 
 of municipal trading than have the municipalities of the United 
 States. The enterprises have been so managed abroad that 
 they were profitable. In the United States not only have these 
 undertakings been quite usually left to private companies, but 
 where taken over by the cities, even when well managed, they 
 have been conducted so as to reduce the cost of the service 
 rather than to yield a revenue. The sociological instead of 
 the financial aspect has been uppermost in the minds of the 
 American cities. 
 
 The rate of taxation is first of all fixed by the city government Rate of 
 and is determined by the amount of money which the city has 
 appropriated for its expenses. Two dangers have been discovered 
 in leaving to the municipalities entire freedom in fixing such a 
 rate. In some instances the rate was placed so high that certain 
 kinds of property were unjustly treated ; thus, many states have 
 limited the rate at which a city may tax the property within its 
 jurisdiction at so many dollars per thousand or mills per dollar. 
 A second difficulty arose from the fact that the property within 
 a city was frequently undervalued by the local assessors. This 
 was sometimes done to avoid the payment of heavy county and 
 state taxes, as these taxes were not infrequently based upon the 
 valuations of the local assessors. To prevent this many states 
 provide boards of equalization^ which review the work of the 
 local assessors and attempt to prevent them from undervaluing 
 the property within their jurisdiction. Where, however, the 
 cities are prohibited from taxing property above a certain rate, 
 it is frequently necessary to increase the valuation in order to 
 obtain the required amount of revenue. 
 
 After the assessors have finished their work and the city coun- Collection 
 cil has determined the rate of taxation by dividing the assessed 
 valuation by the amount to be raised, this is mathematically 
 
 ^See page 226.
 
 542 STATE AND MUNICIPAL GOVERNMENT 
 
 applied to the property of each and every citizen; the tax 
 bills are sent out either from the city treasurer's office or 
 from some special official known as the collector of taxes. 
 Theoretically the citizen should at once pay these taxes, special 
 assessments, and license fees within the time specified, but 
 actually this seldom takes place; it is notorious that only a 
 small percentage of a city population pays the poll taxes and 
 that a somewhat smaller percentage succeeds in evading the 
 payment of special assessments. The collector of taxes may 
 ultimately force payment by a distress warrant and selling 
 the property of the delinquent taxpayer at auction in order to 
 meet the assessed taxes. Such action, however, leads to un- 
 popularity and is resorted to only in desperate cases; but it 
 thus may happen that many cities end the year with a large 
 amount of uncollected taxes. Income and corporation taxes 
 and taxes upon public-service franchises which are gathered by 
 state authorities are apt to be more promptly collected and 
 remitted to the city authorities. 
 
 2 . Expenditure 
 
 Municipal During the last half of the nineteenth century municipal 
 tures" '" expenditures increased with startling rapidity, and during the 
 increasing ^.^^ decades of the twentieth century not only the aggregate 
 grew large but the rate of increase was higher. Thus, from 
 i860 to 1890 the population doubled and the estimated value 
 of property increased fourfold, but the total state and local 
 taxation was five times greater.' Since 1900 the city expendi- 
 tures have been growing nearly three times as fast as the urban 
 population and faster even than the increased valuation of the 
 municipal property, rapid and great as this has been. Between 
 1903 and 191 9 the general departmental expenses of cities 
 having a population of 30,000 more than doubled.- The rea- 
 sons for this are not hard to see : obviously there was a general 
 increase in wages and salaries; in the second place, the cities 
 were continuing to grow in size at a phenomenally rapid rate. 
 
 ^J. A. Fairlic, Municipal Administration, p. 321. 
 
 -Dcpartmcnl of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), p. 78.
 
 MUNICIPAL FINANCE 
 
 543 
 
 As has been shown, it becomes always more expensive to pro- 
 tect and serve the inhabitants of a city when the population 
 increases beyond a certain size ; finally, what- was probably 
 the most important and controlling factor in this rapidly grow- 
 ing rate of expenditure was the added demands for public 
 service and improvements which were made upon the city. 
 Better pavements and better lighting, purer water, more effi- 
 cient schools, were all demanded and must all be paid for. Not 
 only were these improvements in kind demanded but, as has 
 been seen, the cities were expected to enter new fields of 
 municipal service. The result was startling. The cost of gen- 
 eral government more than doubled between 1903 and 1919.^ 
 The expenses of the fire department are almost twice as much. 
 The cost of health conservation and the police department has 
 increased more than threefold. The outlay for sanitation has 
 more than doubled, as has the amount appropriated for chari- 
 ties, hospitals, and corrections. The cost of the city schools 
 has increased from $80,000,000 to more than $216,000,000; 
 the amount spent on recreation from $7,000,000 to more than 
 $24,000,000 ; the amount on pensions and gratuities from 
 $3,000,000 to $18,000,000, or more than four times as much 
 as in 1903.- In 19 19 the cost per capita for the cities having 
 a population of more than 30,000 was $21.75. The principal 
 governmicntal costs are shown in the table below. 
 
 General government 
 
 Police department 
 
 Fire department 
 
 Other expenses for protection of persons and property 
 
 Conservation of health 
 
 Sanitation 
 
 General expenses of highways 
 
 Repair and construction for compensation of highways 
 
 Charities, hospitals, and corrections 
 
 Schools 
 
 Libraries 
 
 Recreation 
 
 Miscellaneous 
 
 General 
 
 Total 
 
 Per Capita 
 
 ^76,977,390 
 
 ?2.22 
 
 80,917,027 
 
 2-33 
 
 64,540,941 
 
 1.86 
 
 12,503,134 
 
 0.36 
 
 20,208,615 
 
 0.58 
 
 61,290,630 
 
 1.77 
 
 69,097,634 
 
 1.99 
 
 3,388,145 
 
 0.10 
 
 55,086,145 
 
 '•59 
 
 238,906,8 ■!5 
 
 6.89 
 
 9,842,384 
 
 0.28 
 
 25,971,607 
 
 0.75 
 
 11,804,982 
 
 0-34 
 
 23,253,337 
 
 0.67 
 
 iln 1903, $30,000,000; in 191Q, $72,000,000. 
 
 -Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), p. 78.
 
 544 STATE AND MUNICIPAL GOVERNMENT 
 
 Municipal 
 appropria- 
 tions 
 
 Methods of 
 controlling 
 appropria- 
 tions and 
 disburse- 
 ments : 
 
 ^i I New 
 York City 
 
 (2) General 
 law for 
 Massa- 
 chusetts 
 
 The figures are the average for all cities having more than 
 30,000 inhabitants. Individual cities may show a different dis- 
 tribution, but' in general this represents roughly the way in 
 which the average city spends its revenue.^ 
 
 In all types of city government the power to appropriate 
 the revenue of the city lies in the city council, whether this 
 be a large bicameral or a single-chamber council or a commis- 
 sion. The representatives of the people jealously keep in their 
 own hands the right to determine the amount of money they 
 spend and thereby control taxation. The actual spending of 
 the money, however, is not vested in the city council, except 
 under the commission type of government. Following the 
 federal analogy, the power to make appropriations was vested 
 in one set of men and the power to apply these appropriations 
 in another. Thus the city council merely turns over to a more 
 or less independent group of officials the expending of the 
 money the council has appropriated. In former times the 
 appropriating power was carelessly and extravagantly used; dif- 
 ferent committees, often having no relations with each other, 
 recommended the appropriation of various amounts for all 
 sorts of purposes, and no general check was kept either upon 
 the appropriations or upon the way in which they were dis- 
 persed. In more recent times limitations have been placed 
 upon the appropriating power of the city government, and an 
 effort has been made to correlate these appropriations and 
 expenditures and in some way to control the disbursements. 
 
 Four different methods have been tried. The first may be 
 exemplified in the case of New York City, where a special 
 budget-making authority was created, known as the board of 
 estimate and apportionment. This body prepares the appropria- 
 tions, which are ultimately submitted to the board of aldermen, 
 who are allowed to make reductions only, and even these are 
 subject to the veto of the mayor. The Massachusetts plan 
 places the making of the appropriations in the hands of the 
 mayor, who submits them to the city council, but that body 
 may not increase, although it may decrease, any appropriation. 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 (1919), pp. 204-205.
 
 MUNICIPAL FINANCE 545 
 
 The third method is adopted in commission-governed cities and ^3) com- 
 mission- 
 governed 
 
 fuses the appropriating and disbursing authorities ; the council ™'"'°°' 
 
 or commission (consisting of the heads of the various depart- "^'^® 
 ments) appropriates the money, which they in turn, as depart- 
 ment heads, spend. In the city-manager plan the budget is (4) city- 
 first made by the city manager, but the approval of the council dtfes^" 
 must be secured before the heads of the departments may dis- 
 burse the money, nominally, if not actually, under the direction 
 of the city manager. The city-manager method of making appro- 
 priations more nearly resembles the ISIassachusetts plan, where 
 the responsibility is given to the mayor. In the city-manager 
 cities, however, the council may increase the appropriations. 
 
 A municipal budget is a method of financing the needs of a Municipal 
 city according to some definite plan. It includes both the ex- *"*^^®* 
 penditures and the revenues. It should be prepared from data 
 gathered from the experiences of more than one year. It should 
 show not only the total amount that each department has spent, 
 or proposes to spend, but how this amount is to be distributed 
 among the various activities of each department. The budget 
 is thus ''an instrument and a process of government. As an in- 
 strument, it is a means of getting before the representative body, 
 which has the power to control the purse, a well-considered plan, 
 with all the information needed to determine whether the plan 
 should be approved before funds are made available for its exe- 
 cution. As a process of government, it is a procedure for insuring 
 complete accountability for past grants, and for requiring those 
 whose future acts are to be controlled to assume full responsi- 
 bility for preparing, explaining and defending their plans and 
 proposals for future grants, such plans for the future to include : 
 (i) an expenditure program based on estimated service needs, 
 and (2) a revenue program indicating what grants of authority 
 are desired to enable them to raise the money to make purchases 
 as well as to meet outstanding obligations."^ To fulfill this 
 purpose a budget should present the following essentials : 
 
 I. A work program showing what work has been done by the gov- 
 ernment with costs classified by functions or services rendered and 
 
 '^Municipal Research^ No. 80 (December, 1916), p. 3.
 
 546 STATE AND MUNICIPAL GOVERNMENT 
 
 presetUing a plan for the future with the estimated costs of the sev- 
 eral functions or services. 
 
 2. An analysis of cost of things used or to be used in doing work, 
 or rendering service, such as personal service, supplies, materials, etc. 
 
 3. An estimate of appropriations to be developed into an act of 
 appropriation — a statement of the amount of appropriation or draw- 
 ing accounts to be placed at the disposal of the spending officers to 
 cover the cost of the work to be done. 
 
 4. An estimate of revenues and borrowiiig — a statement of the 
 ways and means of raising the funds to pay for the work authorized.^ 
 
 How the The most scientific way in which a budget can be made is 
 
 is'made "^cll exemplified by the practice in New York City.- According 
 to this the board of estimate and apportionment, or in other 
 cities the mayor, receives from each department the estimates 
 of their expenditures for the coming year. With these estimates 
 should be submitted the expenditures of the previous year or 
 possibly the preceding years. The mayor alone is supposed, 
 in many cities, to deal with these estimates, but in New York 
 a special commission investigates the demands of the various 
 departments and reports their findings to the board of estimate 
 and apportionment, which has the final decision in case of a 
 difference of opinion. The New York plan differs from the 
 Boston plan and that followed in many cities in demanding 
 what is known as a segregated budget. This means that each 
 department shall itemize and state the purposes for which 
 each amount is desired. There is great advantage in this sys- 
 tem. By the other method — known as the lump-sum budget 
 — the departments were not infrequently led into extravagant 
 courses and often spent on one project the greater part of the 
 appropriation for the entire department. The segregated bud- 
 get, however, has the disadvantage of paralyzing administrative 
 initiative in the executive department ; it also is expensive in 
 that it requires a considerable clerical force to prepare it and 
 increases the difficulties of auditing. The best practice would 
 seem to be to require enough segregation to show the actual 
 cost of running the different bureaus in a department and to 
 
 '^Municipal Rrscarrh, No. So (Dccrmbcr, IQ16), p. 19. 
 
 2 Sec the Charter of the City of New York, Sects. 226-247.
 
 MUNICIPAL FINANCE 547 
 
 prevent the money appropriated for one purpose from being 
 used for others. After the New York commission has reported, 
 a tentative budget is prepared and printed, on which pubhc 
 hearings are held. This is an extremely important feature of 
 budget-making, but it is too little taken advantage of by the 
 public in most cities. After the public hearings the board of 
 estimate and apportionment adopts the budget, with such 
 changes as seem fit, and submits it to the board of aldermen. 
 As has been said, the aldermen may not increase any item which 
 the board has inserted, but they may decrease any item subject to 
 the veto of the mayor. This veto can be overridden only by a 
 three-fourths vote of the board, and, if not sustained, it restores 
 the amount originally asked by the board of estimate and ap- 
 portionment. The budget system is well adapted for the large 
 undertakings, vast expenditures, and complicated departments 
 necessary for so large a city. Smaller cities should preserve the 
 four great essentials ; namely, minute classification in estimates, 
 examination by some person or body familiar with the needs and 
 workings of each department, public hearings, and segregated 
 appropriations. 
 
 3. Accounting 
 
 Municipal accounting is the attempt to arrange the accounts Definition 
 of the city so that they may be easily understood and intelli- 
 gently used.^ It is not sufficient for the purpose of good admin- 
 istration merely to account for the expenditure of every penny, 
 although this must always be done. In addition the accounts 
 must be in such a form that data contained in them will be 
 available for comparison with previous years and the data of 
 one city with that of another. The accounts must do more 
 than merely balance the receipts and expenditures. They must 
 group or segregate both expenditures and receipts, so that it 
 may be possible to determine intelligently and accurately the 
 cost of any particular service at any particular time. In the 
 last twenty years much has been done to establish a proper 
 system. This has been attempted, first, by legislative process, 
 
 iSee Goodnow and Bates, Municipal Government, pp. 422-426, with 
 references; also W. B. Munro, Principles and Methods of Municipal 
 Administration, pp. 460-464.
 
 548 STATE AND MUNICIPAL GOVERNMENT 
 
 whereby the states have passed laws directing the cities to keep 
 their accounts according to certain plans. It has been accom- 
 plished more successfully, however, by administrative means ; 
 not a few states have provided for the periodic audit of munici- 
 pal accounts by state officials and have required the cities to 
 make certain returns according to definite forms, particularly 
 when they seek to borrow money beyond the debt limit. 
 
 Definitions 
 
 Amount of 
 
 municipal 
 
 debts 
 
 4. Debts 
 
 As has been shown, the expenditures of a city exceed the 
 revenue. All the cities, therefore, have debts, but these debts 
 are of various sorts and are differently treated. The funded 
 debt of a city is that part represented by bonds which have a 
 number of years to run and which are to be redeemed either 
 serially or by a sinking fund. The floating debt of a city is 
 that for which no long-term securities have been issued and no 
 funds provided for its redemption. These are usually evidenced 
 by short-term notes, which may include loans in anticipation 
 of the collection of taxes. The current debt of a city is the 
 debt for which payment is already provided by cash on hand 
 or taxes levied but not collected. The gross debt of a city is 
 the total amount of all debts outstanding, while the net debt 
 is the gross debt less all assets, including possibly the amount 
 in the sinking fund.^ 
 
 The debts of cities having a population of more than 30,000 
 in 1919 were $3,702,272,563.- Large as these figures are, what 
 is more startling is to note that this municipal debt shows an 
 increase of more than 40 per cent between 1909 and 19 19. 
 Not quite so amazing is the per-capita debt, which, in 1919, 
 was Si 18.28 as against a per-capita debt in 1909 of S88.20, 
 showing an increase of only about 35 per cent. Rapidly as the 
 gross debt of the cities has grown, the increase in population 
 
 ' Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (iqiq), pp. 42-43; VV. B. Munro, Principles and Methods of 
 Municipal Administration, p. 465; Goodnow and Bates, Municipal Gov- 
 ernment, pp. 416-417. 
 
 -Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), p. 94.
 
 MUNICIPAL FINANCE 549 
 
 has prevented a similar extension in the per-capita debt. The 
 largest cities have the largest debts; thus, those cities having 
 a population of more than 500,000 have a per-capita debt of 
 $160.41, while cities with a population between 30,000 and 
 50,000 have a per-capita debt of only $60.09.^ This is but 
 another evidence of the fact that the expenses of government 
 grow more than proportionally with the increase of population. 
 
 The increase of municipal indebtedness has led the states to Debt 
 limit the amount of indebtedness which any city may incur. ^^™'*^ 
 It is managed in various ways, but usually by fixing a percent- 
 age of the total assessed valuation and forbidding any city to 
 incur a debt beyond such a percentage. Indiana fixes 2 per 
 cent; New York, on the other hand, limits its cities to 10 per 
 cent of the real-estate assessment. California limits the in- 
 debtedness not by percentages of assessment but by the annual 
 income, and prohibits any city from incurring a debt beyond 
 an entire year's revenue. In addition to these constitutional 
 limitations, some states limit the city's debts by statutes — 
 sometimes a limit based upon a percentage of the value of the 
 property, sometimes on the nature of the loan. Thus Pennsyl- 
 vania prohibits cities from issuing bonds for a period longer 
 than thirty years, and Massachusetts has classified the purposes 
 for which bonds may be issued and has fixed a term of years for 
 each purpose. Some cities are required to submit the question of 
 municipal loans to a popular referendum, and in some instances 
 a majority of two thirds of the voters is required for adoption. 
 
 The American practice of attempting to limit municipal Futility of 
 debts by law has proved a failure. Cities have been able to restrictions 
 appeal to the legislature and obtain permission to borrow 
 money in excess of the limits fixed by law. A sudden disaster, 
 a much-needed improvement, an attempt to engage in some 
 municipal undertaking which will produce a revenue, are rea- 
 sons which will frequently lead a legislature to except a city 
 from the legal requirements of the debt limit. In England the 
 control of municipal indebtedness is largely an administrative 
 affair, and if a city can convince the local-government board of 
 
 1 Department of Commerce, Bureau of the Census, Financial Statistics 
 of Cities (1919), pp. 296-297.
 
 550 STATE AND MUNICIPAL GOVERNMENT 
 
 the necessity for a loan, such permission is granted, but the 
 purpose of the loan, the use of the money obtained, and the 
 provision for its extinguishment are carefully supervised. 
 Administrative rather than legislative control is probably a 
 better method of controlling the debts of the municipality. 
 Payment of Two methods are adopted by cities for extinguishing their 
 debts'^'^^ indebtedness. One is the sinking-fund plan ; the other, the 
 serial-bond plan. According to the first the city council is 
 supposed to appropriate each year an amount of money which, 
 if put at compound interest, would extinguish the bonds upon 
 their maturity. Theoretically this has much in its favor and 
 perhaps is somewhat more economical ; practically, however, 
 there are grave disadvantages. The city council cannot be com- 
 pelled to make the annual appropriations for the sinking fund. 
 Some unforeseen expense may lead to postponing such appro- 
 priations. The sinking funds may be carelessly or foolishly in- 
 vested, sometimes in the future securities of the city itself. 
 Finally, there is the danger of actual dishonesty and corruption 
 on the part of the sinking-fund commissioners. The serial- 
 bond plan provides that a certain number of the bonds shall 
 be redeemed each year. In this way the city is compelled to 
 appropriate a sum each year in order to protect its credit, and 
 in return is required to pay each year a decreasing interest 
 charge. Modern opinion is overwhelmingly in favor of the 
 serial-bond plan. 
 
 Municipal government is largely municipal housekeeping. 
 The state legislature and the state laws pretty conclusively 
 determine the liberty and the activities of the citizens. The 
 citizens are governed by the state, but are supplied with 
 the necessities and conveniences of modern life largely by the 
 municipalities in which they live. State government is pri- 
 marily interested in problems of policy. In recent years it is 
 increasingly interesting itself in problems of administration and 
 service. Still, the city is primarily the administrative organi- 
 zation. As such its frame of government should be adapted 
 to business and administrative conditions, and, in particular, 
 its fmancial administration should be conducted according to 
 business principles along efficient lines.
 
 INDEX 
 
 Absent voting, 99-100 
 
 Accounting, municipal, 547-548 
 
 Address, legislative, removal of 
 judges by, 282 
 
 Administration, in colonial bor- 
 oughs, 362 
 
 Administration, county, 323-325; 
 of justice, 325-329 
 
 Administration, municipal, city 
 council's powers diminished by 
 creating special departments and 
 legislative commissions, 367-36S; 
 means of state control over cities, 
 391-392 ; powers of city council, 
 418; under commission govern- 
 ment, 435-436, 438, 441; under 
 city-manager plan, 449-450, 452; 
 city departments, 454-463 ; board 
 or commissioner, 462 ; subor- 
 dinate officials and employees, 
 463-469; police, 470-479; fire, 
 479-485; health, 485-490; build- 
 ing, 490; city planning, 491-496; 
 streets, 496-505 ; water, 505-511 ; 
 waste disposal, 511-513; sewage, 
 513-517; public utilities, 517- 
 521; education, 522-529; chari- 
 ties and corrections, 529-532; 
 finance, 533-55° 
 
 Administration, state, 149-167; 
 characteristics, 149; officers, 150- 
 153; boards and commissions, 
 154-157; internal organization 
 of boards and departments, 157- 
 161 ; relative merits of board or 
 commissioner, 1 60-1 61; relation 
 to legislature, 161-162 ; relation 
 to governor, 162 ; relation to 
 courts, 162-163; reorganization, 
 163-167; functions, 16S-103; en- 
 forcement of state law, 168-172; 
 education, 172-176; charities 
 and corrections, 176-180; cor- 
 rectional institutions, 180-182; 
 public health, 182-185; labor- 
 law administration, 185-189; 
 agriculture, 189-190; regulation 
 of corporations, 190-193; pubHc 
 works, 193; judicial control of. 
 
 302-304; ministerial and discre- 
 tionary acts, 303-304; by sheriff, 
 328 
 
 Administration, town, 335 
 
 Agamenticus, Maine, chartered as 
 colonial borough, 359 
 
 Age, as qualification for voting, 40, 
 395 ; statistics as to, in cities, 
 352; for office of mayor, 422 
 
 Agriculture, state administration of, 
 189-190 
 
 Alabama, vote required for amend- 
 ing constitution, 32 ; suffrage con- 
 ditioned on residence, 41, 395; 
 suffrage conditioned on literacy, 
 42, 44; direct primaries, 68 n.; 
 four-year term of legislature, 
 203 ; organization of counties, 
 322; election districts, 340; suf- 
 frage conditioned on payment of 
 taxes, 397; commission govern- 
 ment for cities, 432-434 
 
 Albany, chartered as borough, 
 313 n.; colonial sheriff in, 361; 
 freemen in, 361 ; water purifica- 
 tion, 508 
 
 Aldermen, in colonial period, 360; 
 at present, 411; confirmation of 
 mayor's appointments by, 427- 
 429 
 
 Alien population, in states, 4-5 ; in 
 cities, 349-351 ; the foreign-born, 
 349, 370; reasons for presence in 
 cities, 349-350; effect in cities, 
 350-351; the negroes, 349; cause 
 of increased difficulties in police 
 administration, 473-474 
 
 Amendments, to Federal Constitu- 
 tion, first ten, 14-15, 17; Elev- 
 enth, 15; Fourteenth, 9, 11-13, 
 15, 23, 196, 238-239, 276-277; 
 Fifteenth, 43; Eighteenth, 323, 
 324; Nineteenth, 40-41, 395-396 
 
 Amendments, to state constitutions, 
 early, 20; in general, 30-36; pro- 
 posed by initiative, 194 n.; fram- 
 ing of, by legislatures, 222-223 
 
 Amendments, to city charters under 
 home rule, 385-386 
 
 55>
 
 552 STATE AND MUNICIPAL GOVERNMENT 
 
 American City, 445 n., 452 n. 
 
 American Political Science Review, 
 75 n., 112 n., 13411., 14311., ISO n., 
 166 n., 16711., 217 n., 22711. 
 
 American Proportional Representa- 
 tion League, publications, 102 n. 
 
 American Year Book, 18 n., 68 n., 
 126 n., 165 n., 166 n., 204 n., 
 272 n., 395 n., 432 n. 
 
 Annals of the American Academy 
 of Political and Social Science, 
 200 n., 317 n. 
 
 Annapolis, Maryland, chartered as 
 borough, 313 n.; a close corpora- 
 tion, 360 
 
 Appeal, courts for, 271-272, 298; 
 right of, 298; grounds, 298-299; 
 effects, 299-300; reforms, 301 
 
 Appointment, power of, by gover- 
 nor, 139-144; limitations on, 
 140-142 ; through the civil serv- 
 ice, 141-142; political conse- 
 quences of, 143-144; in cities, 
 366; by mayor, 370, 427-429, 
 458, 523 ; by city manager, 449 
 
 Area, variations in, of states, 4; of 
 counties, 318, 346-347 
 
 Arizona, density of population, 4; 
 constitution amended by referen- 
 dum, 35; suffrage quahfication, 
 42; emergency legislation, 118; 
 no veto or amendment of direct 
 legislation, 122; recall, 126-127; 
 term of legislature, 203 ; size of 
 senate, 203 ; recall of judges, 
 282 ; municipal home rule, 384- 
 
 38s, 447 
 Arkansas, vote required for amend- 
 ment of constitution, 32; consti- 
 tutional convention provided for, 
 32 ; amendment by referendum, 
 35; direct primaries, 68 n.; vote 
 on referendum in 1916, 121 ; gov- 
 ernor's power of removal, 143; 
 legislative budget, 233 ; jurisdic- 
 tion of county courts, 271, 326; 
 organization of county boards, 
 322; townships, 340; special 
 legislation for cities forbidden, 
 367; extension of suffrage to non- 
 citizens, 394; payment of poll 
 ta.x required for voting, 397 ; 
 election of department heads 
 under commission government, 
 
 4.35 
 Arrest, 291 
 Ashes, disposal of, 512 
 
 Ashley, R. L., "Preferential Vot- 
 ing," loi n. 
 
 Ashtabula, Ohio, adoption of pro- 
 portional representation, 102 ; ef- 
 fect of proportional representa- 
 tion, 103, 403; city-manager 
 plan, 451 
 
 Assessment, of property for munic- 
 ipal taxation, 535-540; of real 
 estate, 536; of tangible personal 
 property, 537; of intangible 
 property, 537. See also Special 
 assessments 
 
 Assessors, county, 330; town, 336; 
 in Southern county districts, 340; 
 in cities, 535-537 
 
 Atlanta, Georgia, business taxes, 
 229; garbage incineration, 513 
 
 Attainder, bill of, 11 
 
 Attorney, district, 152; prosecut- 
 ing, 286, 289-290, 326-327 
 
 Attorney-general, in states, 151- 
 152 ; assistant, 152 
 
 Auditor, state, 153; county, 331 
 
 Austin, Texas, revenue from pub- 
 lic-service enterprises, 534 n. 
 
 Australian ballot as adopted in the 
 states, 92-93 
 
 Bail, 201-292 
 
 Baldwin, Simeon E., The American 
 Judiciary, 269 n., 278 n., 300 n. 
 
 Ballot, the, 91-99; importance, 91- 
 92 ; early regulations, 92 ; reform 
 of, 92-99 ; Massachusetts type, 
 92-96; party-column type, 93- 
 95; variations, 93-94; short bal- 
 lot, 95-96 ; short versus long, 96- 
 99; preferential, 101-102; pro- 
 portional representation, 102- 
 104; initiative and referendum 
 measures on, 120-121, 125; 
 municipal, 398-403 
 
 Baltimore, state-appointed police 
 commissioners, i6q, 420, 458 n., 
 475; early board of health, 182; 
 coincides with county, 318 n.; 
 early election of aldermen and 
 mayor by electoral college, 363, 
 419 n.; first waterworks, 367; 
 special legislation, 379; retains 
 bicameral council, 411; term of 
 mayor, 421; residence require- 
 ment of mayor, 422; organiza- 
 tion of police force, 474; fire 
 hdard, 4S2 ; cost of public- 
 health work, 490
 
 INDEX 
 
 553 
 
 Banking, regulation of, by state, 
 
 IQI 
 
 Barnes v. District oj Columbia, 
 
 384 
 
 Barnett, J. D., The Operation of 
 Initiative, Referendum, and Re- 
 call in Oregon, 105 n. 
 
 Bastable, C. F., Public Finance, 
 533 n. 
 
 Bates, F. G. See Goodnow, F. J. 
 
 Beard, C. A., American Govern- 
 ment and Politics, 12 n., 66 n., 
 83 n., 86 n., 89 n., 96 n., 202 n.; 
 Readings, 13 n., 58 n., 146 n.; 
 "Ballot's Burden," 57 n., 96 n.; 
 " Commissions in American Gov- 
 ernment," 154 n. 
 
 Beard, C. A., and Shultz, B. E., 
 Documents of the Initiative, 
 Referendum and Recall, 115 n. 
 
 Bellington, Washington, revenue 
 from special assessments, 534 
 
 Berkeley, California, revenue from 
 miscellaneous sources, 534 n. 
 
 Bicameral legislature, in states, 21, 
 198-200; in cities, 363-364, 365, 
 411 
 
 Bill of rights, in Federal Constitu- 
 tion, 14-15, 17, 22; in state con- 
 stitutions, 22-23, 28-29; as limi- 
 tation on legislature, 196 
 
 Birmingham, Alabama, salary of 
 commissioners, 434-435 
 
 Birth rate in cities, 353 
 
 Blackstone, Commentaries, 239 n., 
 
 251 
 Bloomfield v. Charter Oak Bank, 
 
 333 
 
 Blue, L. A., "Recent Tendencies in 
 State Administration," 158 n., 
 159 n. 
 
 Boards and commissions, state. 
 See Administration, state 
 
 Boise, Idaho, salary of commis- 
 sioners, 435 
 
 Boroughs, colonial, 313, 359-362; 
 at present, 341-342 
 
 Boss, the, in political parties, 57 
 
 Boston, state appointment of police 
 commissioner, 169, 458 n., 475; 
 early board of health, 182, 485; 
 first city charter, 313 n. ; coincides 
 with county, 318 n. ; popular elec- 
 tion of mayor provided in 1822, 
 364 ; first waterworks, 367 ; spe- 
 cial legislation for, 379; nomi- 
 nation by petition, 400; size of 
 
 city council, 411; caliber of 
 council members, 412; how 
 council members are chosen, 412 ; 
 term and reeligibility of mayor, 
 421; salary of mayor, 423 n.; 
 cost of mayor's election, 423; 
 mayor's veto, 425; executive 
 budget, 427; civil-service confir- 
 mation of mayor's appointments, 
 428, 459-460, 461 ; number of 
 administrative departments, 457; 
 police organization, 474; high 
 cost of police department, 478; 
 fire department and commis- 
 sioner, 482 ; training school for 
 firemen, 482 ; high cost of fire 
 department, 484; maximum con- 
 sumption of water, 506 ; source 
 of water, 507 ; organization of 
 water department, 509 ; debts for 
 sewerage, 517; sliding scale for 
 gas rates, 519; construction of 
 subways, 520 
 
 Boulder, Colorado, adoption of 
 proportional representation, 102 
 
 Bouvier, Law Dictionary, 327 n. 
 
 Boynton, W. E., "Proportional 
 Representation in Ashtabula," 
 403 n. 
 
 Bradford, E. S., Commission Gov- 
 ernment in American Cities, 
 431 n. 
 
 Bridgeport, Connecticut, commis- 
 sion government rejected by, 432 
 
 Brodnax v. Missouri, 276 
 
 Brookline, Massachusetts, popula- 
 tion, 333 
 
 Brooklyn, removal of council con- 
 firmation from mayor's appoint- 
 ments, 420 n. 
 
 Brown v. Maryland, 10 
 
 Bryce, James, American Common- 
 wealth, 394 n. 
 
 Buck, A. E., in National Municipal 
 Review, 232 n. 
 
 Budget system, in the states, 232- 
 23s; types, 232-233; executive 
 type, 233-235; control of city 
 council, 416-417; control of 
 mayor, 426-427; in Dayton city- 
 manager plan, 450; municipal, 
 essentials of, 545-546; practice 
 in New York City, 546-547 
 
 Buffalo, contains bulk of county 
 population, 318; may not adopt 
 optional charter, 382 ; commis- 
 sion government in, 432; salary
 
 554 STATE AND MUNICIPAL GOVERNMENT 
 
 of commissioners, 434; power of 
 mayor, 437; high cost of police, 
 479; cost of pubhc-health work, 
 490; cost of streets, 500; source 
 of water supply, 50S; county 
 poor relief, 529 
 
 Building department in cities, 490 
 
 Business taxes, 229 
 
 Buttrick V. City of Lowell, 475 
 
 California, estimated wealth, 5 ; 
 amendment of constitution by 
 referendum, 35, 36; suffrage 
 qualification, 42 ; effect of suf- 
 frage qualification, 45 ; nonpar- 
 tisan primaries, 67 n., 68; regu- 
 lation of campaign expenses, 87- 
 88; emergency legislation, 118, 
 119; no amendment of laws 
 adopted by the initiative, 122; 
 effect of direct legislation, 124; 
 recall, 126, 127; governor's sal- 
 ary, 134; governor's veto power, 
 i37> 138; administrative reorgan- 
 ization, 165 ; publication of text- 
 books, 175; no distinction be- 
 tween legal and equitable rem- 
 edies, 245-246; recall of judges, 
 283; area of largest county, 318; 
 jurisdiction of county courts, 
 325; local assessors, 330 n.; spe- 
 cial legislation for cities forbid- 
 den, 370; municipal home rule, 
 370, 384, 447; recall in cities, 
 408; municipal debt limits, 549 
 
 Cambridge, Massachusetts, commis- 
 sion government rejected by, 432 ; 
 garbage disposal, 513 
 
 Campaigns, political, conducted by 
 state committees, 48-49; effect 
 of direct primary on expense of, 
 72-73; in the states, 77-91; 
 definition, 77; kinds, 77-78; 
 management, 78-79; methods, 
 79-81 ; textbook and publicity 
 pamphlet, 80; use of money in, 
 81-89; regulation of expenses by 
 states, 86-89 
 
 Candidates for officc,mu]tiplicity of, 
 59 ; effect of direct jjrimary , 70-7 1 , 
 72 ; relation to party committee, 
 78-79; regulation of campaign 
 expenses, 87-89; judges as, 270 
 
 Canton, Ohio, source of water sup- 
 
 F^iy- .S07 
 
 Channing, Edward, History of the ^ 
 United Stales, 309 n. 
 
 Charities, pubhc, 176-177; state 
 supervision of public, 177-178; 
 private institutions, 177; state 
 supervision of private institu- 
 tions, 178-179; state boards, 
 179; administrative boards of 
 control, 179-180; administration 
 by counties, 324; in cities, proper 
 control of state over, 390; poor 
 relief, 529-530; hospitals, 530- 
 531; care of children, 531; de- 
 partment of charities, 531 
 
 Charleston, South Carolina, negro 
 population, 349 n. ; school ex- 
 penditures, 528; poor relief, 529 
 
 Charters, relation of colonial to 
 state constitutions, 18-19; in 
 Connecticut and Rhode Island, 
 21; in boroughs, 313 n., 359-360; 
 in cities, after the Revolution, 
 363 ; control of state legislatures 
 over, 367, 370, 374-375; inde- 
 pendence of cities in framing, 
 372; contents, 375-376; home- 
 rule, 384-387 
 
 Chattanooga, Tennessee, mayor's 
 veto in commission government, 
 437 
 
 Checks and balances, in early state 
 constitutions, 25; in early city 
 charters, 363 ; not present in com- 
 mission form of government, 441 
 
 Chicago, contains bulk of county 
 population, 318; representation 
 on county board, 322; popula- 
 tion more trading than indus- 
 trial, 346; area, 346; first water- 
 works, 367 ; independence of 
 water board in 1851, 368; size 
 of council, 411; state control 
 over police in 1861, 420, 475; 
 term of mayor, 421; mayor's 
 salary, 423 ; number of adminis- 
 trative departments, 457; civil 
 service in, 467; fire loss, 479 n.; 
 fire department and commis- 
 sioner, 482 ; training school for 
 firemen, 482 ; board of health 
 established, 485 ; source of water 
 supply, 508 ; debt for sewerage, 
 517; appointment of school 
 board, 523 
 
 Child labor, 187-188 
 
 Childs, R. S., Short-Ballot Prin- 
 cii)k's, q6 n. 
 
 Cincinnati, contains bulk of county 
 population, 318; per-capita fire
 
 INDEX 
 
 555 
 
 loss, 479 n. ; first steam fire- 
 engine, 482 ; water purification, 
 508 
 
 Cities, discrimination against, in 
 bicameral state legislatures, 202- 
 203; special courts in, 270; char- 
 acteristics in America, 345-358; 
 definition, 345 ; reasons for exist- 
 ence, 345-346; area, 346-347; 
 population, 347-348; death rate, 
 34S; aliens, 349-351 ; distribution 
 of sexes, 351-352; distribution 
 of ages, 352; health in, 354- 
 355; intellectual standards, 356- 
 357; ownership of property, 
 357; moral standards, 357-358; 
 humanitarian movements in, 
 358; relation to the states, 374- 
 392 ; powers granted by charter, 
 376-377; liabilities, 377-378; 
 special legislation for, 378-383; 
 home rule, 383-38S; proper con- 
 trol of state over, 388-392 ; as 
 political units, 393-408; govern- 
 mental organization, 409-453 ; 
 administration, 454-550; ex- 
 penditures, 542-547 ; debts, 548- 
 550; revenues, 534-542 
 
 Citizens' Union in New York City, 
 campaigns conducted by, 405, 
 406 
 
 Citizenship of the United States, 
 privileges and immunities, 12- 
 13; as quahfication for voting, 
 41-42, 394 
 
 City manager, in Dayton, 448- 
 450; powers, 449-450; expert- 
 ness, 452 
 
 City-manager plan, of municipal 
 government, 372-373, 445-453; 
 definition, 445-446 ; develop- 
 ment and spread, 446; method 
 of adoption, 446-447 ; Daj'ton 
 plan (see Dayton) ; Ashtabula 
 plan, 451; results, 451-453; con- 
 trol over appropriations and ex- 
 penditures, 545 
 
 City Managers' Year Book, 452 
 
 City planning, meaning, 491-492 ; 
 progress in America, 492-493, 
 496 ; boards, 493 ; difficulties, 
 404-495; cost, 495 
 
 Civil Rights Cases, 239 
 
 Civil-service regulations, for mak- 
 ing appointments in states, 141 ; 
 examinations, 141 ; removals, 
 141-142 ; results, 142 ; beginnings 
 
 of, in cities, 371; for appoint- 
 ments of mayor, in Boston, 428, 
 459-460, 461 ; municipal, types 
 of commissions for, 466-467 ; 
 Massachusetts plan, 467 ; prin- 
 ciples, 467-468; use in connection 
 with promotions and dismissals, 
 468 
 
 Clark, W. L., Elementary Law, 
 246 n., 256 n.; Contracts, 259 
 
 Classification of property for taxa- 
 tion, 538 
 
 Clerks, county, 329; of court, 329; 
 town, 336; in colonial boroughs, 
 361 
 
 Cleveland, contains bulk of county 
 population, 318; independent 
 executive departments, 368; state 
 control of police force, 475 ; small 
 expense of police, 478-479; city 
 planning, 496 ; maximum con- 
 sumption of water, 506 ; source 
 of water supply, 508; sliding 
 scale for determining trolley 
 fares, 519 
 
 Cleveland, Frederick A., "Evolu- 
 tion of the Budget Idea in the 
 United States" and "Constitu- 
 tional Provision for a Budget," 
 232 n. 
 
 Climate of the states, 5 
 
 Close corporations, in colonial 
 boroughs, 360-361 ; after the 
 Revolution, 363 
 
 Coker, F. W., "Safeguarding the 
 Petition in the Initiative and 
 Referendum," 109 n. 
 
 Colorado, amendment of constitu- 
 tion by referendum, 35 ; woman 
 suffrage adopted, 40; exclusion 
 of appropriations from referen- 
 dum process, 119; recall, 126; 
 governor's power of removal, 
 143; martial law in, 145; use of 
 mihtia in strike, 170; regulation 
 of mining industry, 185 ; recall 
 of judges, 283 ; recall of judicial 
 decisions, 283 ; municipal home 
 rule, 447 
 
 Colorado Springs, mayor's veto 
 under commission government, 
 437; sewage farm, 516 
 
 Columbia, South Carolina, school 
 expenditures, 528 n. 
 
 Columbus, Ohio, water softened in, 
 507 ; water purification in, 508 
 
 Comity among the states, 13
 
 556 STATE AND MUNICIPAL GOVERNMENT 
 
 Commission, as organ in commis- 
 sion plan of government, 433- 
 435 ; in city-manager plan, 447- 
 
 448, 451 
 
 Commission government of cities, 
 372, 430-444; principles, 430; 
 origin and spread, 43 1-43 2 ; meth- 
 ods of adopting, 432-433; the 
 commission, 433-435; adminis- 
 trative departments, 435-436, 
 466; mayor, 436-437; appointive 
 officers and independent depart- 
 ments, 438 ; popular control over, 
 438-480; merits and faults, 441- 
 443, 445-446; results, 443-444; 
 control over appropriations and 
 expenditures, 545 
 
 Committees, of political parties, 
 state, 47-50; local, 50-51; rela- 
 tion to candidates during cam- 
 paigns, 78-79; state control over 
 campaign expenses of, 88 ; of the 
 state legislatures appointed by 
 speaker, 209 ; on rules, 209 ; varie- 
 ties of, 210-213; conference, 212, 
 219-220; consideration and re- 
 port of bills, 219; party control 
 over, 221; in city councils, 414- 
 415; conduct of administration 
 by, 454-457 
 
 Common law, 242-244; mis- 
 demeanors under, 254-256; re- 
 lations in marriage, 262 ; rem- 
 edies, 266; procedure in civil 
 cases, 295-297; evidence, 299 n. 
 
 Commons, J. R., Proportional 
 Representation, 45 n., 102 n., 
 202 n. 
 
 Comptroller. See Auditor 
 
 Condemnation proceedings for ac- 
 quiring land for streets, 498-499 
 
 Conference of governors, 146 
 
 Connecticut, constitution of 1818, 
 19; constitutional convention, 
 32; suffrage qualification as to 
 education, 42 ; no direct pri- 
 maries in, 68 n. ; provincial gov- 
 ernor and council, 132 ; pardon- 
 ing power, 144; state police, 171 ; 
 appointment of board of educa- 
 tion, 173; secretary of board of 
 education, 174; compulsory edu- 
 cation, 17s; early health boards, 
 182; representative districts, 201 ; 
 discrimination against cities in 
 legislative apportionment, 202; 
 annual sessions of legislature, 202 ; 
 
 no distinction between legal and 
 
 equitable remedies, 245-246 ; 
 county taxes, 321; appointment 
 of county clerks, 329; appoint- 
 ment of county treasurer, 330 n.; 
 duties of town clerks, 336 ; school 
 districts in towns, 336 
 Constable, in New England towns, 
 337; in Western county districts, 
 
 341 
 Constitution, Federal, recognizes 
 importance of the states, 3-4; 
 purposes of a body politic in 
 preamble, 7 ; creates federalism, 
 8; distribution of powers in, 8- 
 17; obligations and prohibitions 
 on the states, 9-13; supremacy 
 of, 16-17; relation to state con- 
 stitutions, 18; provisions as to 
 suffrage, 40; limitations on state 
 legislatures, 195-196; limitations 
 on state taxing powers, 229; 
 limitations on state lawmaking, 
 238-239, 241 ; defines treason 
 252 ; relation to state courts, 269, 
 275-277, 284; conflict of state 
 law with, 302 ; influence on city 
 government, 363, 380; hmita- 
 tion on city-planning operations, 
 
 494 
 
 Constitutions, state, 18-36; impor- 
 tance, 18; origin, 18-19; early, 
 19-21; fundamental principles, 
 21-26; classification, 26; similari- 
 ties in, 26-27; increasing length, 
 27-28; typical contents, 28-30; 
 amendment of, by legislatures, 
 222-223; limitations on taxing 
 power, 230; limitations on debts, 
 235-236; limitations on legisla- 
 tion, 242 ; conflicts of state law 
 with, 301-302 ; limitations on 
 cities, 380 
 
 Contracts, prohibitions upon state 
 regarding, 10-12; interstate 
 recognition of, 13; as part of 
 state law, 259-261 ; considera- 
 tion required in, 259 n.; defini- 
 tion, 259-260; of counties, 318- 
 319; liabilities of cities for, 377 
 
 Convention, party, in the states, 
 51-55; activities, 51-53; advan- 
 tages, 53-54; disadvantages, 54- 
 60 
 
 Conventions, constitutional, early, 
 20-21; provided in later consti- 
 tutions, 31-35; composition, T,i;
 
 INDEX 
 
 557 
 
 powers, 33-34; limitations, 35; 
 procedure, 35 
 
 Coroner, 329 
 
 Corporations, provisions regarding, 
 in state constitutions, 30; con- 
 tributions to campaign funds, 
 84, 88, 89; state regulation, 190- 
 193 ; regulation of banking and 
 insurance and securities, 191 ; 
 regulation of public utilities, 
 191-194; regulation of railroads, 
 192 ; limited powers of legisla- 
 ture to grant franchises, 197; 
 taxation, 228-229; legal defini- 
 tion, 263-265; counties as, 318- 
 319 ; New England towns as, 2^3^ 
 360; school districts in central 
 and Southern states as, 339, 340; 
 municipal, 345, 374-375; char- 
 tered by colonial boroughs, 360 
 
 Correctional institutions, 180-182; 
 state supervision of, 180; prob- 
 lems, 180-182; municipal depart- 
 ment of corrections, 531-532 
 
 Corrupt and illegal practices, com- 
 parison between Great Britain 
 and the United States, 85-86 ; 
 prohibition by various state 
 acts, 86-89; prohibition by con- 
 gress, 87 ; effect, 89 
 
 Council, city, proportional repre- 
 sentation used for elections, loi ; 
 in colonial period, 360-361 ; later 
 development, 363, 365, 367-369, 
 370; history, 409-410; dechne, 
 410; size and terms, 411; char- 
 acter of members and salaries, 
 412; how chosen, 412-413; or- 
 ganization and procedure, 414; 
 committees, 414-415; powers, 
 415-418; influence, 418-419; in 
 commission government, 433- 
 435; in city-manager plan, 447- 
 448; conduct of administration 
 by, 454-457; election of adminis- 
 trative heads by, 458 ; confirma- 
 tion of mayor's appointments, 
 458; power of appropriation, 
 
 544-547 
 
 Council, governor's, in the states, 
 confirms appointments, 140, 280, 
 325; acted as check on colonial 
 legislatures, 140 
 
 County, unit for administration of 
 education, 172; superintendent 
 for, 172-173; unit for legislative 
 representation, 201-203 ; courts. 
 
 271, 325-326; sheriff as judicial 
 officer, 284-285, 327-329; in Eng- 
 land, 309; in the colonies, 310- 
 313; general characteristics, 317- 
 320; definition, 317; a corpora- 
 tion, 318-319; powers and func- 
 tions, 319-320, 529; seat of, 320; 
 government, 321-322, 332; types 
 of board, 321-322; powers of 
 board, 323-325; administration 
 of justice, 325-329; prosecuting 
 attorney, 326-327; coroner, 329; 
 clerks, 329; assessors, 330; treas- 
 urer, 330-331; auditor, 331; 
 registrar of deeds, 331-332; 
 school officials, 332 ; districts as 
 subdivisions in South and West, 
 
 339-341 
 
 County seat, 320 
 
 Courts, county, 271, 319, 325-326; 
 clerks, 329 
 
 Courts, municipal, 270, 531-532 
 
 Courts, state, in early constitutions, 
 21; subject to popular sov- 
 ereignty, 23-24 ; relation to 
 boards and commissions, 162- 
 163 ; system and structure, 268- 
 290; under justices of the peace, 
 269-270; intermediate, 270-271; 
 probate, 271; appellate, 271- 
 
 272, 298; juvenile, 272-274; 
 domestic- relations, 274; small- 
 claims, 274-275 ; land, 275 ; night, 
 275; women's, 275; relation to 
 federal courts, 275-277; judge, 
 277-284; clerks, 284; sheriff, 284- 
 285, 328-329; jury, 285-289; 
 prosecuting attorney, 289-290, 
 326-327; procedure in criminal 
 cases, 291-295; procedure in civil 
 cases at common law, 295-297; 
 procedure at equity, 297-298; 
 procedure in appeals, 298-301 ; 
 power to declare statutes un- 
 constitutional, 301-302 ; control 
 of administration, 302-304; as 
 agents of self-government, 304- 
 305 ; as means of state control 
 over cities, 391 
 
 Craig V. Missouri, 9 
 
 Criminal law, 251-256; definition 
 of crime, 251-252; treason, 252; 
 felonies, 252-254; misdemeanors, 
 254-256; procedure of courts, 
 
 291-295 
 Cumulative voting, use in Illinois, 
 
 200
 
 558 STATE AND MUNICIPAL GOVERNMENT 
 
 Cyclopedia of American Govern- 
 ment, 26, loi n., 151 n., 154 n., 
 272 n., 301 n. 
 
 Dallas, Texas, mayor's veto in 
 
 commission government, 437 
 Dartmouth College Case, 11, 190, 
 
 204 
 
 Dayton, Ohio, city-manager plan 
 of government, 446, 447-451; 
 the commission, 447; the mayor, 
 447-448; the city manager, 448- 
 449; administrative departments, 
 450, 458, 466 ; financial provisions, 
 450-451 ; revenue from miscella- 
 neous sources, 534 n. 
 
 Dealey, J. Q., Growth of State 
 Constitutions, 18 n., 19 n., 31 n., 
 32 n.; classification of state con- 
 stitutions, 26 
 
 Death rate, in London, 348; in 
 cities, 351-352, 354-355 
 
 Debate, freedom of, in state leg- 
 islatures, 218; in New England 
 town meetings, 334-335 
 
 Debts, state, 235-237; limitations, 
 235-236; payment through sink- 
 ing funds, 236-237; payment 
 through serial bonds, 237; 
 municipal power of council to 
 incur, 416-417; in general, 548- 
 550; amount, 548-549; limits, 
 549-550; payment, 550 
 
 Delaware, Maryland, early consti- 
 tution framed by convention, 20; 
 term of governor under early 
 constitution, 20; appointment of 
 judges under early constitution, 
 21 ; amendment of early consti- 
 tution, 31; suffrage qualification 
 in, 42 ; no direct primaries, 68 n.; 
 appointment of secretary of 
 state, 150; size of lower house, 
 203 ; no compensation paid to 
 legislature, 206 ; business taxes, 
 229 ; appointment of judges, 325 ; 
 hundreds, 340; no commission- 
 governed cities in, 432 
 
 Delegates to state conventions, 
 character and type of, 54 ; nom- 
 inated by primaries, 63 
 
 Democratic party, organization of, 
 in New York County, 57-58 
 
 Demurrer, 296 
 
 Denver, juvenile court, 272; city 
 and county bounrlaries coincide, 
 318; garbage disposal, 513 n. 
 
 Departments, in cities, growth of 
 special, from 1850 to 1870, 367- 
 368; under commission govern- 
 ment, 435-436; administrative, 
 445-463 ; in city-manager plan, 
 449-450; control of council over, 
 455-457; number, 457-458; 
 heads, 458-462 ; organization, 
 462; correlation, 462-463; sub- 
 ordinate officials and employees, 
 463-469; civil service, 466-469; 
 and labor unions, 469; police, 
 470-479; fire, 479-485; health, 
 485-490; building, 490; city 
 planning, 491-496; streets, 496- 
 505; water, 505-511; waste dis- 
 posal, 511-513; sewerage, 513- 
 517; public utilities, 517-521; 
 education, 522-529; charities and 
 corrections, 529-532 
 
 Des Moines, plan of commission 
 government and direct legisla- 
 tion, 407, 431; election of com- 
 missioners, 434; assignment of 
 departments, 435; popular con- 
 trol by means of direct legisla- 
 tion in, 438-439 
 
 Detroit, representation on county 
 board, 322; popular election of 
 mayor in charter of 1S24, 364; 
 state control of police force, 
 475 ; fire board, 482 
 
 Dicey, A. V., Law of the Constitu- 
 tion, 23 n. 
 
 Dillon, J. F., Law of Municipal 
 Corporations, 374"., 375 n., 
 V376n., 378 n., 383 n., 384 n. 
 
 "Wrcct legislation. See Initiative 
 and referendum 
 
 Direct method of street construc- 
 tion, 502 
 
 Diseases, activities of health de- 
 partments against, 487-489 
 
 Dismissal of municipal employees,468 
 
 Distribution of powers in the 
 United States, 9-13 
 
 Districts, election, in the states, 
 45-46; county, in South and 
 West, 339-341 
 
 Divorce, recognition of, among 
 the states, 13 ; as legal measure, 
 261-262 
 
 Dodd, W. F., Revision and Amend- 
 ment of State Constitutions, 
 i8n., 31 n., 32 n., :.,^ n. 
 
 Domestic relations, as part of state 
 law, 261-262 ; termination of.
 
 INDEX 
 
 559 
 
 261-262; legal status in, 262; 
 court of, 274. Sec also Divorce 
 
 Dubois, W. E. B., "The Social 
 Effects of Emancipation," 44 n. 
 
 Due process of law, meaning in 
 Fourteenth Amendment, 12, 239 
 
 Dutton, S. T., and Snedden, David, 
 Administration of Public Educa- 
 tion in the United States, 522 n. 
 
 East Chicago, Illinois, revenue from 
 special assessments, 534 
 
 Eddy, H. P. See Metcalf, Leonard 
 
 Education, as qualitication for 
 suffrage, 42-44, 342, 396; ad- 
 ministration in the states, 172- 
 176; school districts and county 
 as units, 172; county superin- 
 tendent, 172-173; state super- 
 vision, 173; state boards, 173- 
 174; state superintendents, 174- 
 175; financial aid of state in, 
 17s; compulsory, 175; train- 
 ing of teachers, 176; state 
 universities and libraries, 176; 
 control over, by counties, 332 ; 
 school committees in towns, 336; 
 school districts in townships, 
 339 ; school districts in Southern 
 and Western counties, 340-341 ; 
 school districts in cities, 365 ; 
 early school systems in cities, 
 367; proper control of state over, 
 389; under commission govern- 
 ment, 43S; separate from other 
 municipal administration, 457; 
 and public health, 489; organ- 
 ization of school department, 
 522-523; school board, 523-524; 
 superintendent, 524-525 ; teach- 
 ers, 526-527; school plant, 527; 
 functions of school system, 527- 
 528; finance, 528-529. See also 
 Schools 
 
 Edwards, G. E., The Grand Jury, 
 285 
 
 Election, of governor, 133 ; of lieu- 
 tenant governor, 150; of secre- 
 tary of state, 150; of attorney- 
 general, 151; of state treasurer, 
 152-153; of auditor or comptrol- 
 ler, 153; of county superintend- 
 ent of education, 172-173; of 
 state judges, 278-280, 282; of 
 county judges, 325; of municipal 
 judges, 532; of prosecuting at- 
 torneys, 326; of sheriffs, 327; of 
 
 coroner, 329; of county clerks 
 and clerks of court, 329; of 
 county treasurer, 330; of town 
 officers, 334, 335, 336; of mayor, 
 363, 364-365, 421; of council, by 
 wards, 412-413; of council, at 
 large, 413 ; of council, by a com- 
 bination method, 414; of com- 
 missioners under commission gov- 
 ernment, 434; of mayor in com- 
 mission government, 436 ; of com- 
 missioners under city-manager 
 plan, 447, 451; of mayor under 
 city-manager plan, 447 ; of city 
 manager under city-manager plan, 
 448-449 ; of heads of administra- 
 tive departments, 458 ; of school 
 boards, 523 ; of overseers of the 
 poor, 530 
 
 Elections, frequency of, 59 ; laws 
 governing, 89-91 ; officers for, 
 89-90; official forms for returns, 
 90; policing of polls, 90-91; 
 registration necessary for voting 
 in, 91 ; secrecy, 91 ; ballot at, 
 91-99; absent voting, 99-100; 
 preferential voting, 101-102 ; pro- 
 portional representation, 102- 
 104; submission of initiative and 
 referendum measures at, 119- 
 120; duties of county boards, 
 324-325; in New England town 
 meetings, 334; in townships, 
 338; control of state over, in 
 cities, 388-389; municipal, gen- 
 eral conduct of, 401-403 
 
 Electorate, organization, 39-60; 
 divided into districts, 45-46 ; ac- 
 tion, 61-76; campaigns, 77-91; 
 and the ballot, 91-99; absent 
 voting, 99-100; preferential vot- 
 ing, 101-102; proportional repre- 
 sentation, 102-104; initiative, 
 referendum, and recall, 105-128; 
 effect of referendum on, 123-124; 
 action in choosing judges, 278- 
 279; municipal, 393-403 
 
 Emergency legislation and the 
 referendum, 11 7-1 19 
 
 Eminent domain, 249, 498 
 
 Employees, municipal, number, 464 ; 
 influence of politics on appoint- 
 ment, 465-466 ; civil-service re- 
 form, 466-468 ; promotion and 
 dismissal, 468 ; pensions, 468-469 ; 
 connection with labor unions, 
 469
 
 56o STATE AND MUNICIPAL GOVERNMENT 
 
 England, corrupt and illegal prac- 
 tices in, 85-86 ; common law, 
 242-244; equity, 244-245; local 
 institutions as basis for Ameri- 
 can, 309-310, 313; residence re- 
 quirement for voting, 396 ; service 
 on council committees, 415; term 
 and power of mayors, 422 n.; 
 mayor's salary, 423 ; mayor's 
 business experience, 424; mayor 
 has no veto power, 425; conduct 
 of municipal administration in, 
 454, 456, 461 ; municipal owner- 
 ship, 521; poor relief, 529 
 Equal protection of the laws, mean- 
 ing in Fourteenth Amendment, 12 
 Equity, 244-246; remedies in, 267; 
 procedure in civil cases, 297- 
 298; in financial matters, 298 n.; 
 evidence, 299 n. 
 Ex post facto law, 11 
 Excess condemnation, 498-499 
 Executive department, governor, 
 131-148; decentralization, 131- 
 132; state administration, 149- 
 193; composition, 149-153; re- 
 lation between branches and to 
 other departments, 154, 161-163; 
 mayor, 360, 363, 364-365, 370, 
 
 372-373, 41Q-429, 436-438, 443, 
 447-448 ; municipal administra- 
 tion, 454-550 
 
 Expenditures of cities, for police, 
 478-479; for streets, 499-500; 
 for water supply, 510; for 
 sewerage and sewage disposal, 
 517; for schools, 528-529; gen- 
 eral, 533, 542-547; steady in- 
 crease, 542-543 ; appropriations, 
 544; control and disbursements, 
 544-545; budgets, 545-547 
 
 Expenditures of states, 230-235 ; 
 causes of increase, 231 ; budget 
 system, 232-235 
 
 Experts, in city government, city 
 manager, 452; heads of adminis- 
 trative departments, 459 ; in con- 
 nection with board system, 462 ; 
 school superintendent, 525 
 
 Extradition, 13 
 
 Fairlie, J. A., "The State Gov- 
 ernor," 132 n., 147 n.; "Veto 
 Power of the State Governor," 
 136 n.; "Revenue and Financial 
 •Administration," 152 n.; in 
 American Political Science Re- 
 
 view, 164 n.; Local Government 
 in Counties, Towns, and Villages, 
 3ion., 314, 316 n., 319, 321 n., 
 322, 323 n., 326 n., 327, 330 n., 
 331 n., 333 n-, 337 n., 339 n., 
 341 n. ; Essays in Municipal Ad- 
 ministration, 359 n., 381, 419 n.; 
 Municipal Administration, 362 n., 
 364 n., 36S, 368 n., 409 n., 419 "-, 
 471 n., 474 n-, 479"., 482 n., 
 484 n., 542 n. 
 
 Fall River, Massachusetts, death 
 rate of children, 351 
 
 Federal government, created by 
 Constitution, 8 ; powers delegated 
 to, 8-9, 14; prohibitions on, 14- 
 15; commerce regulations, 15- 
 16; supremacy, 16-17; regula- 
 tion by Congress of campaign 
 expenses, 87 ; relation of laws to 
 state laws, 238-239, 275-277; 
 juvenile court laws, 272 n.; Judi- 
 ciary Act of 1916, 276, 2S4 
 
 "Federalist, The," 25 
 
 Felonies, 252-254 
 
 Filtration, of water supplies, 508- 
 509; of sewage, 515-516 
 
 Finance, clauses in state constitu- 
 tions relating to, 29; passage of 
 legislation regarding, 220; state, 
 225-237; revenue, 225-230; taxa- 
 tion, 225-230; expenditures, 230- 
 235; budget system, 232-235; 
 debts, 235-237 
 
 Finance, county, administration of, 
 319, 323-324; officers, 330-331 
 
 Finance, municipal, in colonial bor- 
 oughs, 362; later, 365, 37i, 533" 
 550; proper control of state over, 
 389; powers of city council, 416- 
 417; powers of mayor, 426-427; 
 in commission-governed cities, 
 443-444 ; provisions in Dayton 
 city-manager plan, 450-451; re- 
 sults of city-manager system, 
 452; cost of police, 478-479; ex- 
 pense connected with city plan- 
 ning, 494-495 ; cost of streets, 
 499-500; cost of paving and 
 sidewalks, 504; cost of water 
 supply, 510; cost of sewerage 
 and sewage disposal, 517; cost 
 of schools, 528-529; cost of 
 municipal government, 533 ; rev- 
 enues, 534-542 ; expenditures, 
 543-547; accounting, 547-548; 
 debts, 548-550
 
 INDEX 
 
 561 
 
 Finley, J. H., and Sanderson, J. F., 
 American Executive and Execu- 
 tive Methods, 132 n.,136 n.,i54n. 
 
 Fire, protection against, in cities, 
 365, 366-367, 481-484; loss from, 
 479-480; prevention, 480-481; 
 personnel of fire department, 482 ; 
 appliances for fighting, 482-483 ; 
 apparatus for fighting, 484; cost 
 of fire department, 483-484 
 
 Florida, percentage of registered 
 voters, 45 ; limitation on leg- 
 islative action, 135 ; governor's 
 power of removal, 143 ; appoint- 
 ment of county judges, 325; elec- 
 tion districts, 340; special stat- 
 utes relating to cities forbidden, 
 
 367 
 
 Foreign affairs, prohibition on states 
 from engaging in, 9 
 
 Fosdick, R. B., American Police 
 System, 471 n.; European Police 
 Systems, 471 n. 
 
 France, term of mayor, 422; no 
 residence requirement for voting, 
 396 ; conduct of municipal ad- 
 ministration in, 454 
 
 Franchises, power of city council 
 over, 417; taxation of, 228-229, 
 S39-540; elements of, authorities 
 granting, 518; duration, 518- 
 519; regulation of rates, 519- 
 520; reversion of plant, 520 
 
 Freemen in colonial boroughs, 361 
 
 Frothingham, L. A., Brief History 
 of the Constitution and Govern- 
 ment of Massachusetts, 211 n. 
 
 Galveston, Texas, origin of com- 
 mission government in, 372, 430- 
 431 ; salary of commissioners, 435 
 
 Gans, H. S., "The Public Prosecu- 
 tor," 326 n. 
 
 Garbage, disposal of, 513 
 
 Gardner, C. O., "Problems of Per- 
 centages in Direct Government," 
 114 n., 121 n. 
 
 General-property tax, 225-227, 535- 
 
 537 
 Georgia, foreign-born in, 4; fram- 
 ing of early constitution, 20; 
 bicameral legislature provided 
 under early constitution, 21 ; elec- 
 tion of judges under early con- 
 stitution, 21; suffrage qualifica- 
 tion, 42 ; direct primaries, 682 ; 
 majority vote required for elec- 
 
 tion of governor, 133 ; annual 
 sessions and term of legislature, 
 203; business taxes, 220; debt 
 restrictions, 235; election of 
 judges, 278, 325; organization of 
 counties, 322; jurisdiction of 
 county courts, 326; militia dis- 
 tricts, 340 
 Germany, present age qualification 
 for suffrage, 40; term and power 
 of burgomaster, 422 n.; burgo- 
 master's salary, 423 ; burgomas- 
 ters as administrators, 424 ; con- 
 duct of municipal administration 
 
 in, 454 
 
 Gerrymander in legislative appor- 
 tionment, 202 
 
 Goodnow, F. J., Principles of 
 the Administrative Law of the 
 United States, 302 n.; Munic- 
 ipal Home Rule, 374 n., 379 n., 
 383 n.; Pontics and Administra- 
 tion, 464 n. 
 
 Goodnow, F. J., and Bates, F. G., 
 Municipal Government, 345 n., 
 349, 351 n-, 356 n., 374 "-, 376 n., 
 377 n., 379 n., 383 n., 409 n., 
 415 n., 419 n., 422 n., 470 n., 
 471 n., 472-473, 474 n., 484 "-, 
 491 n., 519 n., 520 n., 523 n., 
 533 n., 547 n., 548 n. 
 
 Governor, state, in early consti- 
 tutions, 20-21; in general, 131- 
 148; colonial, 132; election, 132- 
 133; term, 133; removal, 133- 
 134; salary, 134; legislative pow- 
 ers, 134-139; the veto, 136-139; 
 power of appointment, 139-144; 
 council as check, 140, 190, 280, 
 325; power of removal, 142-143, 
 328; power of pardon, 144; mili- 
 tary power, 144-145; as repre- 
 sentative of the state, 146-147 ; 
 types of, 146-147 ; in popular 
 estimation, 147-148; relation to 
 boards and commissions, 162 ; 
 duty toward law enforcement, 
 169-171; influence of, on legisla- 
 tion, 213-214; approval, 220; 
 prepares budget, 233-235 ; ap- 
 points judges, 278, 280-281, 325, 
 326 
 
 Grand jury. See Jury 
 
 Grandfather clause, in regard to 
 the suffrage, 43-44 
 
 Grand Rapids, Michigan, city- 
 manager plan in, 446
 
 562 STATE AND MUNICIPAL GOVERNMENT 
 
 Greene, E. B., The Provincial Gov- 
 ernor, 131 n. 
 
 Greenville, Texas, mayor's veto in 
 commission government, 437 n. 
 
 Cidnn v. United States, 43 
 
 Habeas corpus, writ of, 266 
 
 Hadley, A. T., Economics, 353 n. 
 
 Hamilton, Ohio, revenue from 
 public-service enterprises, 534 n. 
 
 Hand, Learned, "The Elective and 
 Appointive Methods of Selection 
 of Judges," 278 n. 
 
 Harlan, Justice, on the police 
 power, 276 
 
 Hart, Hastings H., plan for juvenile 
 court, 272 ; Preventive Treatment 
 of Neglected Children, 272 n. 
 
 Hartford, Connecticut, keeps its 
 town organization, 333-334; es- 
 tablishes first city-planning com- 
 mission, 493 
 
 Hatton, A. R., "The Ashtabula 
 Plan," 102 n., 451 n. 
 
 Haynes, G. H., Initiative and 
 Referendum, 105 n.; "People's 
 Rule," lion.; Representation in 
 State Legislatures, 200 n., 207 n. 
 
 Hazen, Allen, Clean Water and 
 How to Get It, 505 n., 50S n. 
 
 Heads of municipal departments, 
 Boston plan, 428, 459-400; 
 method of choice, 458; qualifi- 
 cations, 459; terms, 460-461 ; re- 
 movals, 461 ; salaries, 461 ; board 
 or commissioner, 461-462, 476, 
 482, 486, 509, S16, 522-523, 53°. 
 531. See also Administration 
 
 Health, regulation of industry on 
 ground of, 185-186; insurance, 
 187; in cities, 355-356. See also 
 Public health 
 
 Highpoint, North Carolina, veto 
 of mayor in commission govern- 
 ment, 437 
 
 Hoar, R. S., Constitutional Con- 
 ventions, 18 n., 33 n. 
 
 Hobson, J. A., Evolution of Mod- 
 ern Capitalism, 355 n. 
 
 Holcombe, A. N., State Govern- 
 ment, 14 n., 21 n., 36 n., 44-45, 
 46 n., 82, 85 n., 86 n., 88, 102 n., 
 105 n., 121, 132 n., 136 n., 138 n., 
 149 n., 158 n., 200 n., 210, 212, 
 213 n., 217 n., 278 n., 301 n., 
 302 n., 304 n., 305 n., 397 n.; on 
 popular sovereignty, 22 
 
 Holmes, Justice, on interference of 
 Fourteenth Amendment with the 
 states, 276-277 
 
 HolyolvC, Massachusetts, revenue 
 from public-service enterprises, 
 534 n. 
 
 Home rule, municipal, 372, 383- 
 388; extent of, 3S4-385; char- 
 ter-making, 385 ; limitations on 
 charter-making, 385-386 ; choice 
 of officers, 386-387 ; municipal 
 functions, 387; political relation 
 of city to state, 387-388; adop- 
 tion of commission government 
 under, 433 ; adoption of city- 
 manager plan, 447 
 
 Hospitals, 530 
 
 Houston, Texas, adoption of com- 
 mission government, 431 ; mayor's 
 power of appointment, 437; 
 mayor's veto, 43 7 n.; election of 
 fiscal officers, 438 
 
 Howard, G. E., Introduction to 
 the Local Constitutional History 
 of the United States, 310 n. 
 
 Hull, R. M., "Preferential Voting 
 and How it Works," loi n. 
 
 Humphrey, J. H., Proportional 
 Representation, 102 n. 
 
 Hurd, Harvey H., plan for juvenile 
 courts, 272 
 
 Idaho, vote required for amend- 
 ment of constitution, 32; woman 
 suffrage adopted, 40; nonpar- 
 tisan primaries, 67 ; preferential 
 voting required for party elec- 
 tions, 73; recall in, 126, 127; ad- 
 ministrative reorganization, 166; 
 department of law enforcement 
 provided, 169; term of legisla- 
 ture, 203 ; granting of divorce in, 
 262 
 
 Illinois, estimated wealth, 5 ; vote 
 required for amendment of con- 
 stitution, 32; absent voting, 100; 
 proportional representation, 102; 
 governor's term, 133; governor's 
 salary, 134; governor's power 
 over legislature, 135; reorganiza- 
 tion through administrative code, 
 164; regents of state university, 
 176; cumulative voting in elec- 
 tion of legislature, 200; size of 
 upper house, 203 ; salaries of leg- 
 islators, 206 ; meetings of com- 
 mittees, 211 n.; debt restrictions.
 
 INDEX 
 
 563 
 
 235-236; juvenile courts, 272; 
 small-claims courts, 27411.; ad- 
 ministration of poor relief by 
 county, 324; county courts, 326; 
 treasurer of Cook County, 330; 
 assessment of property, 330 n.; 
 township officers, 338; villages, 
 341 ; special legislation for cities 
 forbidden, 370; referendum on 
 special legislation for cities, 383, 
 407 
 
 Illinois, Report of the Efficiency 
 and Economy Committee, 152 n. 
 
 Immigration, effect on cities, 349- 
 
 351, 356 
 
 Immunities. See Privileges and im- 
 munities, etc. 
 
 Impeachment, of governor, 133 ; of 
 judges, 282 
 
 Incineration, of rubbish, 512; of 
 garbage, 513 
 
 Income tax, state, 227-228,538-539 
 
 Indiana, vote required for amend- 
 ment of constitution, 32 ; consti- 
 tutional convention provided, 
 32 ; residence qualification for 
 voting, 41 ; publicity pamphlets, 
 80 n. ; ballot used, 93 ; absent- 
 voting law, 100; governor's term, 
 133 ; administrative consolida- 
 tion, 166; county superintendent 
 of education, 172-173; attitude 
 of courts toward legislative ap- 
 portionment, 203 ; no distinction 
 between legal and equitable rem- 
 edies, 245-246; early local gov- 
 ernment, 314; township meetings, 
 338; township trustees, 338; vil- 
 lages, 341 ; extension of suffrage 
 to noncitizens, 394 ; no commis- 
 sion-governed cities, 432; munic- 
 ipal debt limits, 549 
 
 Indianapolis, low expenditures for 
 public-health work, 490 
 
 Indictment by grand jury, 286- 
 287, 292 
 
 Initiative, use of, for amending 
 state constitutions, 36-37; in 
 Massachusetts, 36; definition of 
 loti; constitutional, 108; direct 
 108-109; indirect, 109; petitions, 
 1 09-1 16; framing of measures, 
 iio-iii; submission, 116; effect 
 on state legislature, 223-224; in 
 connection with commission gov- 
 ernment, 438-439; in city-man- 
 ager plan, on ordinances, 448 
 
 Initiative and referendum, for 
 amending state constitutions, 35- 
 36; in general, 105-126; distinc- 
 tion between, 106; varieties, 106- 
 109; common features, 109; the 
 petition, 109-116; and emergency 
 legislation, 11 7-1 19; in relation 
 to the legislature, 196; effect on 
 legislature, 223-224; in cities, 
 406-408; as means of popular 
 control over commission govern- 
 ment, 438-440; city-manager 
 plan, 448 
 
 Injunction, writ of, 267 
 
 Insurance, health, 187 
 
 Insurance companies, regulation by 
 state, 191 
 
 Intangibles, taxation of, 226-227, 
 537-538 
 
 International law as part of state 
 law, 242 
 
 Interstate Commerce Commission 
 of the United States, conflict of 
 state commissions with, 192 
 
 Iowa, estimated wealth, 5 ; re- 
 vision of constitution, 33 ; suf- 
 frage conditioned on residence, 
 41, 395; no classes disqualified 
 from voting, 44; nonpartisan 
 primaries adopted, 67; election, 
 73, 74; type of ballot used in, 
 93-94; county superintendent of 
 education, 172-173; representa- 
 tive districts, 201 ; debt restric- 
 tions, 235-236; township meet- 
 ings and boards, 338; villages, 
 341 ; special statutes for cities, 
 forbidden, 367 ; commission- 
 government law for cities, 431, 
 434; taxation of intangible prop- 
 erty, 538 
 
 Italy, no residence requirement for 
 voting, 396 ; term of mayor, 422 ; 
 conduct of municipal administra- 
 tion, 454 
 
 Jacksonville, Florida, negro popu- 
 lation in, 349 n.; revenue from 
 public-service enterprises, 534 n. 
 
 James, H. G., Local Government 
 in the United States, 310 n., 
 317 n., 319 n., 321 n., 323 n., 
 326 n., 327 n., 333 n. 
 
 Jameson, J. A., Treatise on Con- 
 stitutional Conventions, 18 n.
 
 564 STATE AND MUNICIPAL GOVERNMENT 
 
 Jersey City, commission govern- 
 ment in, 432; poor relief ad- 
 ministered by county, 529 
 
 Johnson, L. J., "Preferential Vot- 
 ing," loi n. 
 
 Jones, C. L., Statute Law-making 
 in the United States, 212 n. 
 
 Journals of the Continental Con- 
 gress, 19 n. 
 
 Judges, county, 325 
 
 Judges, state, how chosen in early 
 constitutions, 21, 278; may not 
 be removed by governor, 143 ; 
 functions, 277; relation to jury, 
 277, 286, 289 n.; method of 
 choice, 278-281; terms, 281; re- 
 moval, 282-283 ; charge of, in 
 criminal cases, 293-294; sentence 
 pronounced by, 294-295 
 
 Judicial review, effect, in state con- 
 stitutions, on separation of pow- 
 ers and popular sovereignty, 25- 
 26; of the powers and acts of 
 administrative officers, 302-304; 
 in England, 309-310. See also 
 Supreme Court 
 
 Jury, decision of facts and law by, 
 277; may ask judge for further 
 instructions, 277 n.; in general, 
 285-289; actual working of sys- 
 tem, 288-289; merits, 289; selec- 
 tion, 292-293; verdict, 294, 296; 
 as agency of self-government, 
 304-305; coroner's, 329 
 
 Jury, grand, 285-287 
 
 Jury, petit, 287-288 
 
 Justices of the peace, jurisdiction, 
 269-270; in New England towns, 
 336-337; in townships, 339; 
 Southern and Western county 
 districts, 340, 341 
 
 Juvenile courts, origin and develop- 
 ment, 272; purpose and prin- 
 ciples, 273; procedure, 273-274 
 
 Kalamazoo, Michigan, adoption of 
 proportional representation, 102; 
 effect of proportional representa- 
 tion, 403 
 
 Kansas, nonpartisan primary 
 adopted, O7; recall, 120; term 
 of governor, 133; administrative 
 consolidation, 165; county super- 
 intendent of education, 172-173; 
 publication of textbooks, 175; 
 regulation of securities, 192; 
 compensation paid to legislators, 
 
 206; small-claims court, 2 74n.; 
 recall of judges, 283 ; township 
 meetings, 338; villages, 341; spe- 
 cial legislation for cities for- 
 bidden, 367 ; extension of fran- 
 chise to noncitizens, 394 
 
 Kansas City, Kansas, revenue from 
 public-service enterprises, 534 
 
 Kentucky, compensation paid to 
 legislators, 206 ; county courts, 
 271; early local government, 
 314; governor's veto in constitu- 
 tion of 1790, 316; organization 
 of counties, 322; jurisdiction of 
 county courts, 326; appointment 
 of county treasurer, 330 n. ; 
 magisterial district, 340 
 
 Kimball, Everett, National Govern- 
 ment, 8, 23 n., 77 n., 146 n., 239 n., 
 388 n. 
 
 Kittery, Maine, chartered as colo- 
 nial borough, 359 
 
 Labor, provisions regarding, in 
 state constitutions, 30 ; connec- 
 tion of municipal employees with 
 unions, 469 
 
 Labor law, state administration of, 
 185-189; workmen's compensa- 
 tion laws, 186-187; health insur- 
 ance, 1S7 ; regulation of hours, 
 187; child labor, 187-188; mini- 
 mum wages, 188; conciliation 
 and arbitration, 188 
 
 La Follette, Robert M., governor 
 of Wisconsin, recommendation 
 as to lobbyists, 215-216 
 
 Law, supremacy in state consti- 
 tutions, 23-24; definition, 231, 
 239-240 ; distinction in state 
 constitutions between statutory 
 • and constitutional, 28; affected 
 by the use of direct legislation 
 in amending constitutions, 36; 
 martial, 145; enforcement in 
 states, 168-172; enforcement by 
 governor, 109; enforcement by 
 agents of governor, 169; en- 
 forcement by militia, 170-171; 
 enforcement by state police, 
 171 ; enforcement by boards and 
 commissions, 171-172; impor- 
 tance of state, compared with 
 federal, 238-239; statutory, 241- 
 242 ; international, 242 ; the com- 
 mon law, 242-244; equity, 244- 
 246 ; rights of persons and prop-
 
 INDEX 
 
 56s 
 
 erty, 246-251 ; criminal, 251-256; 
 torts, 256-259; contracts, 259- 
 261 ; domestic relations, 261-262 ; 
 partnerships and corporations, 
 262-265 ; remedies, 265-267 ; sub- 
 stantive and adjective, 265 
 
 Law, state, sources, 238-246; 
 federal limitations on, 241 ; state 
 limitation on, 242 ; rights of 
 persons and property, 246-251; 
 criminal, 251-256; torts, 256- 
 259; contracts, 259-261; domes- 
 tic relations, 261-262; partner- 
 ships and corporations, 262-263 ; 
 remedies, 265-267; conflicting 
 with federal law, 271-272, 275- 
 277, 284, 301-302; may be de- 
 clared unconstitutional by the 
 courts, 301-302 
 
 Lawrence, Massachusetts, foreign- 
 born population, 349 
 
 Legislation, special, 197-198; of 
 the state legislatures, 213-224; 
 the lobby, 214-216; the legisla- 
 tive reference bureau, 216-217; 
 drafting, 217; amount, 217-218; 
 procedure in enacting, 217-220; 
 financial, 220; party influence 
 on, 220-222; strike, 222; quality, 
 223-224; financial, 231-232; 
 power of city council to pass, 
 415-418; powers of m.ayor, 425- 
 426. See Law, state; see also 
 Special legislation 
 
 Legislative reference bureaus, 216- 
 217; in Wisconsin, 216 
 
 Legislature, state, in early consti- 
 tutions, 21; restrictions on, in 
 state constitutions, 27, 196-198; 
 bicameral, 21, 198-200; power to 
 am.end constitutions, 31-32; 
 power of governor over, 135- 
 139; relation to boards and com- 
 missions, . 161-162 ; in general, 
 194-224; importance, 194-195; 
 restrictions on, in Federal Con- 
 stitution, 195-196 ; table of mem- 
 bers, terms, sessions, and salaries, 
 204-205 ; apportionment, 200- 
 203; size, 203; sessions, 203, 206; 
 terms, 203-204; salaries, 206; 
 work, 207-224; officers, 207-210; 
 speaker of lower house, 207-209; 
 committee system, 210-213 ; Mas- 
 sachusetts committee system, 210- 
 211; normal committee system, 
 211-212; New York system, 212- 
 
 213; lawmaking by, 214-222; 
 framing constitutional amend- 
 ments, 222-223; effect of direct 
 legislation on, 223-224; connec- 
 tion with budget system, 233 ; 
 election of judges by, 280, 325; 
 city charters granted by, 363 ; 
 control over municipal taxation, 
 366; control over city charters, 
 367, 370, 372, 374-375, 376; con- 
 trol over municipal administra- 
 tion, 368, 369 ; control over cities, 
 374-392; restrictions on control 
 over cities, 380-388; proper ex- 
 ercise of control over cities, 388- 
 390; methods of control over 
 cities, 390-391 
 
 Lewis, Howard T., in National 
 Municipal Review, 166 n. 
 
 Lewis, N. P., The Planning of the 
 Modern City, 491 n. 
 
 Liability, of the county for dam- 
 ages due to negligence, 318-319; 
 of cities for contracts, 377; of 
 cities for torts, 378 
 
 Liberty, meaning in Fourteenth 
 Amendment as interpreted by 
 the courts, 11-12 
 
 Libraries, state, 176 
 
 License Cases, 15, 249 
 
 Lieutenant governor, 134, 150; 
 presides over state senate, 207 
 
 Lincoln, President, on popular sov- 
 ereignty, 22, 39 
 
 Lindsey, Ben B., as judge of juve- 
 nile court, 272, 274; "My Les- 
 son from the Juvenile Court," 
 272 n. 
 
 Literacy, as qualification for the 
 suffrage, 42; in cities, 356-357 
 
 Lobby, in state legislatures, 214- 
 216; regulation of, 215-216; per- 
 version of legislation by, 222 
 
 Local government, evolution in 
 United States, 309-316; based 
 on English institutions, 309-310; 
 beginnings in America, 310; 
 county type, 3 10-3 11 ; New Eng- 
 land type, 312 ; mixed type, 312; 
 colonial boroughs, 313; effect of 
 Revolution on, 313-314; exten- 
 sion to the territories, 314; re- 
 cent developments, 315; extent, 
 315-316; New England town, 
 333-337 ; townships in central 
 states, 337-339; county districts 
 in South and West, 339-341;
 
 566 STATE AND ^MUNICIPAL GOVERNMENT 
 
 villages and boroughs, 341-342; 
 municipal government, 345-534 
 
 Lockner v. AVic York, 15 
 
 London, death rate in, 348 ; politi- 
 cal parties in, 405 ; police force 
 copied by American cities, 474 ; 
 fire prevention, 480 ; sewage puri- 
 fication, 515; sliding scale for 
 gas rates, 519 
 
 Los Angeles, area, 346 ; small cost 
 of police, 478; sewage farm, 516; 
 large cost of schools, 528 
 
 Louisiana, amendment of constitu- 
 tion by convention, 32; suffrage 
 conditioned on residence, 41, 
 3Q5 ; suffrage conditioned on lit- 
 erac\', 42 ; suffrage conditioned 
 on registration, 45; recall, 126, 
 127; power of board of health, 
 157; four-year term of legisla- 
 ture, 203 ; civil and common law, 
 243 n.; parishes, 317 n.; appoint- 
 ment of county treasurer, 330 ; 
 wards, 340 ; special legislation for 
 cities forbidden, 370; suffrage 
 conditioned on payment of poll 
 tax, 397 ; election of heads of 
 departments under commission 
 government, 435 
 
 Lowden, Frank B., governor of 
 Illinois, 148; efforts toward ad- 
 ministrative reorganization, 164 
 
 Lowell, Massachusetts, water sup- 
 ply, source of, 507 
 
 Lowell, A. L., Public Opinion and 
 Popular Government, 105 n.; 
 Government of England, 213 n., 
 405 n.; opinion on party voting 
 in state legislatures, 213 
 
 McAdoo, William, Guarding a 
 Great City, 471 n. 
 
 McBain, H. L., Law and Practice 
 of Municipal Home Rule, 374 n., 
 381 n., 3S3n., 384"., 385 n. 
 
 McCarthy, Charles, Wisconsin Leg- 
 islative Reference Department, 
 216 n. 
 
 Machine, the, in political parties, 56- 
 60 ; in Xew York, 56-58 ; reasons 
 for existence, 59-60; work in reg- 
 istration for primaries, 62 ; effect 
 of direct primary on, 68-60 ; effect 
 of initiative and referendum on, 
 124-125; influence on Icuislation, 
 220-222; possibility of control in 
 commission government, 443 
 
 McClain, Emiin, Constitutional 
 Law of the United States, 235 n. 
 
 McQuillin, Eugene, Law of Munic- 
 ipal Corporations, 362 n., 413 n. 
 
 Macy, Jesse, Party Organization 
 and Machinery, 79 n. 
 
 Madden v. Lancaster County, 319 
 
 Maine, suffrage conditioned on resi- 
 dence, 40, 395 ; suffrage condi- 
 tioned on literacy, 42 ; signatures 
 required on referendum petition, 
 115; emergency legislation, 118; 
 pardoning power, 144; appoint- 
 ment of attorney-general, 151; 
 appointment of district attorneys, 
 152 n.; appointment of agents to 
 enforce specified laws, 169 n.; ap- 
 pointment of justices of the 
 peace, 336 
 
 Majority, vote of, through the 
 preferential ballot, loi, 402; re- 
 quired for adoption of referenda, 
 1 21-122; required for election of 
 governor in Georgia, Mississippi, 
 and Vermont, 133 ; overrepre- 
 sented because of legislative ap- 
 portionment, 201-202 
 
 Mandamus, writ of, 266 
 
 Marbiiry v. Madison, 303 
 
 Marriage, rate of, in cities, 352-353. 
 See also Domestic relations 
 
 Marshall, Texas, salary of mayor 
 and commissioners, 436 n. 
 
 Marshall, Chief Justice, on state 
 taxation of imports, 10; on char- 
 ters, 11; on contracts, 259; on 
 incorporation, 264 ; on ministerial 
 acts, 303 
 
 Martial law, 145 
 
 Maryland, framing of early con- 
 stitution, 20; election of judges 
 under early constitution, 21; re- 
 vision of constitution, 33 n.; suf- 
 frage qualification, 42 ; governor's 
 power of removal, 143 ; appoint- 
 ment of secretary of state, 150; 
 appointment of district attorneys, 
 152 n.; regulation of lobby, 215; 
 executive budget, 233-234 ; elec- 
 tion districts, 340; special legis- 
 lation for Baltimore, 379; resi- 
 dence requirement for voting, 
 395 ; taxation of intangible prop- 
 erty, 538 
 
 Massachusetts, density of popula- 
 tion and foreign-born in, 4; esti- 
 mated wealth, s; definition of
 
 INDEX 
 
 567 
 
 body politic in preamble to con- 
 stitution, 7 ; first constitution, 
 19-21 ; supremacy of law in first 
 constitution, 23 ; Declaration of 
 Rights, 23 ; separation of pow- 
 ers in first constitution, 24 ; power 
 to take private property, 29 ; 
 rearrangement of constitution, 
 29; amendment of constitution 
 by convention, 32 ; amendment 
 of constitution by referendum, 
 35 ; constitutional convention of 
 I9i7> 35; amendments of 1918, 
 36; suffrage qualification, early, 
 39; suffrage qualification, pres- 
 ent, 42 ; effect of suffrage quali- 
 fications, 44, 45 ; party registra- 
 tion, 64 ; nomination by peti- 
 tion, 66 n. ; information sent to 
 voters, 80 ; attempt to control 
 campaign expenditures, 86, 87, 
 88, 89 ; election law, 89 ; ballot, 
 92, 96; absent voting, 99, 100; 
 majority vote abandoned, loi ; 
 constitutional referendum, 106- 
 107 ; constitutional initiative, 109, 
 iio-iii; signatures required for 
 initiative, 115; emergency leg- 
 islation, 118; exclusion of appro- 
 priations from referendum, 119; 
 vote required in referendum, 
 121-122; governor and provincial 
 council, 132 n.; governor's salary, 
 134; governor's veto power, 136; 
 check on appointing power, 140; 
 removal of judges, 282 ; par- 
 doning power, 144; powers of 
 lieutenant governor, 150; depart- 
 ments of boiler inspection and of 
 health, 160; movement toward 
 reorganization of state adminis- 
 tration, 163, 165 ; use of militia 
 in strikes, 170; state police, 171; 
 state aid to education, 175 ; board 
 of charities, 179; board of health, 
 early, 182 ; professional qualifi- 
 cations required for board of 
 health, 182 ; importance of health 
 commissioner, 183; minimum 
 wage commission, 188; depart- 
 ments of labor and industries, 
 189; department of agriculture, 
 190 ; regulation of public utilities, 
 192-193 ; representative districts 
 for legislature, 201 ; sessions of 
 legislature, 203 ; salaries of legis- 
 lators, 206; committee system, 
 
 2 10-2 1 1, 212, 219; regulation of 
 lobby, 215; income tax, 227; in- 
 creased inheritance tax, 228 n.; 
 debt, 235; divorces, 262; juvenile 
 court, 272; appointment of 
 judges, 278, 326; term of judges, 
 281; oath of grand jury, 286 n.; 
 population of counties, 318; 
 county taxes, 321; medical ex- 
 aminers, 329; term of selectmen, 
 335; appointment of justices of 
 the peace, 336 ; optional-charter 
 system, 372,382,432-433; special 
 legislation, 379; poll taxes, 397; 
 recall in cities, 408; election of 
 heads of departments under com- 
 mission government, 435; civil- 
 service system for cities, 467 ; 
 origin of American local educa- 
 tion in, 522 ; plea for making ap- 
 propriations, 544 ; municipal debt 
 limit, 549 
 
 Massachusetts Constitutional Con- 
 vention (1918), Bulletins, 99 n., 
 loi n., 102 n., 105 n., 106 n., 107, 
 118 n., 121 n., 126 n., 144 n., 
 232 n., 278 n., 374 n., 383 n., 
 384 n., 402 n., 403, 430 n., 431 n., 
 432 n., 443 n., 445 "m 45 i 
 
 Mathews, J. M., Principles of 
 American State Administration, 
 132 n., 138 n., 149 n., 151 n., 
 iS4n., 156 n., 157 n., 158 n., 
 159 n., 168 n., 169 n., 182 n.; 
 "New Role of the Governor," 
 147 n.; "The New Stateism," 
 147 n.; in Cyclopedia of Amer- 
 ican Government, 301 n. 
 
 Matthews, Nathan, Municipal Char- 
 ters, 454 n., 457 
 
 Mayor, in colonial period, 360; 
 down to the present, 363, 364- 
 365, 370, 372-373; development 
 of office, 419-421; how elected, 
 421; term, 421-422; qualifica- 
 tions, 422-423; salary, 423-424; 
 characteristics, 423 ; powers, 424- 
 429 ; power to recommend and to 
 veto legislation, 424-426; power 
 to prepare the budget, 426-427; 
 power to appoint, 427-429; pres- 
 ent position, 429; in commission 
 government, 43 6-43 8,. 443 ; in city- 
 manager plan, 447-448 ; connec- 
 tion with administration, 455 ; 
 appointment of administrative 
 heads by, 458-460, 465, 530
 
 568 STATE AND MUNICIPAL GOVERNIMENT 
 
 Memphis, Tennessee, source of 
 water supply, 507 ; garbage in- 
 cineration, 513 
 
 Mental Hygiene, 181 n. 
 
 Message, of the governor, 135-136; 
 of the mayor, 424-425 
 
 Metcalf, Leonard, and Eddy, H. 
 P., American Sewerage Practice, 
 515 n. 
 
 Michigan, revision of constitution, 
 33 n.; revision of constitution 
 by referendum, 35; residence 
 qualification for voting, 41 ; no 
 referendum or deficiency bills, 
 iign.; legislature forbidden to 
 repeal legislation, 122; recall, 126, 
 127; use of militia in strikes, 
 170; county superintendent of 
 schools and state board of edu- 
 cation, 172-173; regents of state 
 university, 203 ; attitude of courts 
 toward apportionment for legis- 
 lature, 203 ; term of legislators, 
 203; county board, 321; removal 
 of sheriffs by governor, 328; 
 county auditors, 331 ; powers of 
 township officers, 33S; villages, 
 341 ; municipal home rule, 384- 
 385, 447 ; extension of franchise 
 to noncitizens, 394 ; city-manager 
 plan adopted under home rule, 
 
 447 
 
 Militia, power of governor over, 
 144-145, 170; use of, in law en- 
 forcement, 170; use of, in strikes, 
 1 70-1 7 1 
 
 Mill, John Stuart, proportional 
 representation advocated by, 102 
 
 Milwaukee, garbage incineration, 5 13 
 
 Minimum wage, 188 
 
 Ministerial and discretionary acts, 
 
 303-304 
 
 Minneapolis, commission govern- 
 ment rejected by, 432 
 
 Minnesota, vote required for 
 amending constitution, 32 ; non- 
 partisan primary, 67 n., 68; ab- 
 sent-voting law, 100 ; size of 
 senate, 203 ; no distinction be- 
 tween legal and equitable rem- 
 edies, 245-246 ; county clerk and 
 clerk of court, 320; township 
 boards, 33S; villages, 341; muni- 
 cipal home rule, 384-385, 447 
 
 Minor v. Happerselt, 40 
 
 Minority, choice by direct primary, 
 73-74 ; avoided in preferential 
 
 voting, 73-74, 402 ; possible 
 under plurality vote, 10 1 
 
 Mississippi, foreign-born and ne- 
 groes, 4-5 ; vote required for 
 amendment of constitution, 
 32 ; amendment of constitution 
 by constitutional convention, 
 32; amendment of constitution 
 by referendum, 35 ; suffrage 
 conditioned on residence, 41, 395 ; 
 suffrage conditioned on literacy, 
 42; election of governor, 133 n.; 
 limitation on legislative action, 
 135 ; four-year term of legis- 
 lature, 203; election of judges, 
 278; later county judges ap- 
 pointed, 325; supervisor's dis- 
 tricts, 340; suffrage conditioned 
 on payment of poll tax, 397 
 
 Missouri, amendment of constitu- 
 tion by referendum, 35 ; dis- 
 tricts for state party commit- 
 tees, 48 ; nonpartisan primaries 
 adopted, 67 ; control of cam- 
 paign expenditures, 86 ; regula- 
 tions as to signers of referendum 
 petitions, 115; administrative 
 consolidation, 166; no distinction 
 between legal and equitable rem- 
 edies, 245-246; county courts, 
 271; jurisdiction of county 
 courts, 326; township boards and 
 meetings, 338; special statutes 
 for cities forbidden, 370; home 
 rule, 370, 3S4-385, 44T; exten- 
 sion of franchise to noncitizens, 
 394; commission government for 
 cities, 432 
 
 Missouri, Kansas, and Texa"! Rail- 
 'coay Company v. May, 276- 
 277 
 
 Mobile, Alabama, school expendi- 
 tures, 528; miscellaneous reve- 
 nues, 534 n- 
 
 Moderator in New England town 
 meeting, 334 
 
 Montana, regulation as to residence 
 of signers of referendum peti- 
 tions, 115; appropriations ex- 
 cluded from the referendum, 119; 
 limitation on Icgiskative action, 
 135; use of militia in strikes, 
 170; townships, 340; renewal of 
 city commissioners, 434 
 
 Montesquieu, Spirit of Laws, 24 
 
 Montgomery, Alabama, negro pop- 
 ulation, 349 n.
 
 INDEX 
 
 569 
 
 Moore, B. F., History of Cumula- 
 tive Voting and Minority Repre- 
 sentation in Illinois, 200 n. 
 
 Morse, W. F., Collection and Dis- 
 posal of Municipal Waste, 512 n. 
 
 Moyer v. Peabody, 145 
 
 Municipal government, development 
 in United States, 359-373; in the 
 colonial period, 359-362 ; from 
 1775 to 1820, 362; from 1820 
 to 1850, 364-366; from 1850 to 
 1870, 366-369; from 1870 to 
 1900, 369-371; from 1900 to 
 1920, 371-373 ; organization, 409- 
 469 ; mayor-and-council type, 
 409-429 ; commission-government 
 type, 430-444 ; city-manager 
 type, 445-453 ; administration 
 under, 454-550; finances, 533- 
 550. See also Cities; Local gov- 
 ernment 
 
 Municipal ownership and operation, 
 of water supply, 509; of public 
 utilities, 520-521; earnings from, 
 as source of municipal revenue, 541 
 
 Municipal Research, 545-546 
 
 Mtmn V. Illinois, 191, 249 n. 
 
 Munro, W. B., Initiative, Referen- 
 dum, and Recall, 126 n. ; Govern- 
 ment of the United States, 310 n. ; 
 Government of American Cities, 
 313 n.,315-316, 345,348 n. , 351 n., 
 352 n., 354 n., 355 n., 362 n., 363, 
 374 n-,377 n.,378 n.,379 n.,382 n., 
 38311-. 397 n-, 400 n., 401 n., 
 403 n., 404 n., 409 n., 412 n., 
 419 n., 423 n., 426 n., 428 n., 
 430 n., 441 n., 443 n., 445 n., 
 451, 454 n., 456 n., 457 n., 459 n., 
 461, 462 n., 463 n., 464; Bibliog- 
 raphy of Municipal Government, 
 345 "v 374 n-, 43on.; on alien 
 population, 350; Principles and 
 Methods of Municipal Adminis- 
 tration, 416 n., 427 n., 471 n., 
 475 n., 479 n-, 49i n., 496 n., 
 500 n., 501 n., 504 n., 505 n., 
 506 n., 507 n., 509 n., 511 n., 
 512 n., 515 n., 519 n., 523 n., 
 533 n., 536 n., 547 n., 54Sn.; 
 "Ten Years of Commission Gov- 
 ernment," 432 n., 442 n. 
 
 Myers, Gustavus, History of Tam- 
 many Hall, 56 n. 
 
 Nation, relation of the states to, 
 7-17 
 
 National Bank v. Commonwealth, 
 10, 229 
 
 National Conference of Charities 
 and Corrections, Proceedings, 
 17S n., 272 n. 
 
 National Municipal League, model 
 state constitution advocated by, 
 200 n. 
 
 National Municipal Review, 200 n., 
 224 n., 403 n., 431 n., 432 n., 
 445". 
 
 National Short Ballot Association, 
 96 n. 
 
 National Short Ballot Bulletins, 
 445 n. 
 
 Nationality identical among the 
 states, 6 
 
 Nebraska, vote required for 
 amendment of constitution, 
 32 n.; amendment of constitu- 
 tion by referendum, 35 ; resi- 
 dence requirement for voting, 
 41, 395; nonpartisan primaries 
 adopted, 67 ; signatures required 
 for referendum petition, 115; 
 governor's salary, 134 ; governor's 
 power of removal, 143 ; admin- 
 istrative reorganization, 166; 
 county superintendent of educa- 
 tion, 172-173; term of legisla- 
 ture, 203 ; debt, 235 ; county as- 
 sessment of property, 330 n.; 
 special statutes relating to cities 
 forbidden, 367 ; municipal home 
 rule, 3S4-385, 447; extension of 
 franchise to noncitizens, 394; 
 choice of mayor under commis- 
 sion government, 434 
 
 Nebraska Legislative Reference Bu- 
 reau, "Legislative Procedure in 
 the Forty-eight States," 212 n. 
 
 Nevada, population, 4; estimated 
 wealth, 5 ; signatures required for 
 referendum petitions, 115; legis- 
 lature may not immediately 
 change direct legislation, 122; re- 
 call of officers, 126; recall of 
 judges, 283 ; limitation on legis- 
 lative action, 135; lim-taion in 
 connection with the budget. 234; 
 granting of divorce in, 262 
 
 New Bedford, Massachusetts, death 
 rate of children, 351 
 
 New Hampshire, adoption of early 
 constitution, 19-20; constitu- 
 tional amendments, 31; revision 
 of constitution, 33 n.; suffrage
 
 570 STATE AND MUNICIPAL GOVERNMENT 
 
 qualification, 42 ; pardoning 
 power, 144; powers of lieutenant 
 governor, 150; appointment of 
 attorney-general, 150; appoint- 
 ment of district attorneys, 152 n.; 
 no auditor in, 153 n.; size of 
 lower house, 203 ; salary of legis- 
 lators, 206; county taxes, 321 n.; 
 appointment of county clerks, 
 329; no commission-governed 
 cities in, 432 
 
 New Haven, Connecticut, keeps its 
 own organization, 333-334 
 
 New Jersey, density of population, 
 4; early constitution framed by 
 convention, 20; no amendment 
 provision in early constitution, 
 20; election of judges in early 
 constitution, 21; length of early 
 constitution, 27 ; no provision for 
 constitutional convention, 32 ; 
 election law, 89 ; governor's term, 
 133 ; governor's salary, 134 ; ap- 
 pointment of secretary of state, 
 150; appointment of attorney- 
 general, 151; appointment of au- 
 ditor, 153 n.; control of governor 
 over local enforcement of law, 
 169; minimum-wage law, 188; 
 county the representative district 
 for legislature, 201 ; annual ses- 
 sions of legislature, 203 ; elections 
 of senators and representatives, 
 203 ; different terms of represent- 
 atives and senators, 203 ; debts 
 235 ; appointment of judges, 278, 
 325 ; county board, 321 ; appoint- 
 ment of county treasurer, 330 n.; 
 villages, 341 ; special statutes for 
 cities forbidden, 370; choice of 
 mayor under commission govern- 
 ment, 436 
 
 New Mexico, has no direct prima- 
 ries, 68 n. ; exclusion of appro- 
 pirations from the referendum, 
 119; governor's term, 133; 
 debt restrictions, 235-236; New 
 Orleans, early quarantine regu- 
 lations, 182 ; city and county 
 boundaries coincide, 318; area, 
 346 ; commission government, 
 432; salary of commissioners, 
 434; small cost of police, 479; 
 small cost of fire deiiartnient, 
 484; board of health established, 
 485 ; water softened, 507 ; source 
 of water supply, 508; garbage 
 
 disposal, 513; poor relief, 529; 
 revenue from public-service en- 
 terprises, 534 n. 
 
 New York Bureau of Municipal 
 Research, 163 n. 
 
 New York City, organization of 
 Tammany Hall, 57-58; disclos- 
 ures of Lexow Committee as to 
 campaign funds, 85 ; early board 
 of health, 182, 485; discriminated 
 against in state senatorial appor- 
 tionment, 203-204; borough char- 
 ter, 313; contains bulk of county 
 population, 318; area, 346; pop- 
 ulation more commercial than 
 industrial, 346; death rate, 354; 
 ownership of homes, 357; a close 
 corporation, 360; colonial sheriff, 
 361; expenditures in iSio, 364; 
 charter of 1830, 365 ; Croton 
 Aqueduct, 365 ; police and fire 
 department in 1845, 366-367; 
 executive departments in 1849, 
 367-368; board of estimate and 
 apportionment, 371 ; special legis- 
 lation, 379; may not adopt op- 
 tional charter, 382 ; municipal 
 parties, 405 ; board of aldermen, 
 411; election of president of 
 board of aldermen, 414; inde- 
 pendence of mayor, 420 ; mayor's 
 term, 421 ; mayor's salary, 423 n.; 
 number of administrative depart- 
 ments, 457; duties of police, 471- 
 472; development of police, 474; 
 state control over police, 475 ; 
 removal of police, 478; cost of 
 police department, 478; fire loss, 
 479 ; reason for, 480 ; organ- 
 ized fire department, 482 ; fire 
 commissioner, 4S2 ; cost of fire 
 department, 484; control over 
 infectious diseases, 488 ; land 
 value of streets, 496; street- 
 cleaning a separate department, 
 497; cost of streets, 499; source 
 of water supply, 507 ; organiza- 
 tion of water department, 509; 
 public-utility commission, 519; 
 construction of subways, 520; 
 cost of schools, 528; budget- 
 making, 544, 546-547 
 
 New ^'()rk Constitutional Conven- 
 tion, Index Digest of State 
 Constitutions, 42 n., 118 n., 
 ii9n., 163 n., 397 n.; Proceed- 
 ings, 163 n.
 
 INDEX 
 
 571 
 
 New York County, Democratic 
 party organization in, 56-58; 
 population, 318; former fees of 
 sheriff, 327 
 
 New York State, population, 4; 
 density of population, 4; per- 
 centage of foreign-born, 4; esti- 
 mated wealth, 5; framing and 
 amendment of early constitu- 
 tion, 20; term of governor under 
 early constitution, 20; appoint- 
 ment of judges under early 
 constitution, 21; separation of 
 powers in early constitution, 
 24-25; periodic submission of 
 question of constitutional re- 
 vision, 33 ; disqualification for 
 suffrage, 44 n.; registration for 
 suffrage, 45 ; state party com- 
 mittee, 48; registration in pri- 
 maries, 62 ; registration in parties, 
 64; return to convention system 
 of nominations, 76 n.; campaign 
 expenses for printed appeals to 
 voters, 82 ; contributions from 
 candidates for judicial office, 84 ; 
 attempt to control election ex- 
 penses, 86; definition of cam- 
 paign expenses, 89; governor's 
 term, 133 ; governor's salary, 134; 
 impeachment of governor, 135 n.; 
 veto power of governor, 137; 
 power of governor over local of- 
 ficials, 143; auditor, 153; organi- 
 zation of board of regents, 150; 
 organization of board of health, 
 160; movement toward adminis- 
 trative reorganization, 163-164; 
 results of administrative reor- 
 ganization, 166-167 ; removal of 
 county officers l3y governor, 
 i6gn.; state constabulary, 171; 
 appointment and powers of board 
 of education, 173-174; state li- 
 brary, 176; department of char- 
 ity, 170; professional qualifica- 
 tions required of board of health, 
 182 ; importance of health com- 
 missioner, 183; constitutionality 
 of workmen's compensation laws, 
 186-187; attempt to pass health- 
 insurance bill, 187; discrimina- 
 tion against New York City in 
 senatorial apportionment, 202- 
 203 ; size of senate, 203 ; annual 
 sessions and term of legislature, 
 203 ; salaries of legislators, 206 ; 
 
 committee system in legislature, 
 212-213; rate of legislation, 217- 
 218; legislative type of budget, 
 233; debt, 235; no distinction 
 between legal and equitable 
 remedies, 245-246; granting of 
 divorce in, 262 ; juvenile court, 
 272 ; term of judges, 281 ; county 
 board, early, 312-313; county 
 board, present, 321; removal of 
 sheriffs by governor, 328; town 
 meeting and officers, 338; vil- 
 lages, 341 ; mayors chosen by city 
 councils in law of 1821, 364; re- 
 moval power of mayors, 370; 
 optional-charter system, 372, 382, 
 432-433; special legislation for 
 cities, 379; regulation of legisla- 
 tion for cities, 382-383 ; removal 
 of mayors by governor, 422; 
 budget plan, 427; civil-service 
 system for cities, 467 ; training 
 school for firemen, 482 ; health 
 commissioner, 486 
 
 Nolen, John, City Planning, 491 n. 
 
 Nolle prosequi, power of, 290 
 
 Nomination, share of state party 
 committee in, 49; by state con- 
 vention, 53 ; by primaries, 63 ; 
 by direct primaries, 66; in Great 
 Britain compared with the United 
 States, 86; in cities, 398-401; in 
 commission government, 434 ; in 
 city-manager plan, 447 
 
 Norfolk, Virginia, chartered as 
 borough, 313 n.; adopts city- 
 manager, plan, 446 
 
 Norristown, Pennsylvania, cost of 
 schools, 529 ; revenue from poll 
 tax, 534 
 
 North Carolina, foreign-born in, 4; 
 framing and amendment of early 
 constitution, 20 ; election of 
 judges under early constitution, 
 2 1 ; suffrage conditioned on resi- 
 dence, 41, 395; suffrage condi- 
 tioned on literacy, 42 ; effect of 
 suffrage qualifications, 44 ; has no 
 direct primaries, 68 n.; no execu- 
 tive veto, 136; powers of lieu- 
 tenant governor, 150; adminis- 
 trative consolidation, 165 ; term 
 of legislature, 203 ; divorce not 
 legal in, 262 ; local assessors, 
 330 n., townships, 340; payment 
 of poll tax, 397 ; optional charter 
 system, 382, 432-433
 
 572 STATE AND MUNICIPAL GOVERNMENT 
 
 North Dakota, amendment of con- 
 stitution by constitutional con- 
 vention, 32 ; amendment of con- 
 stitution by referendum, 35 ; 
 publicity pamphlets, 80 n. ; regu- 
 lations regarding signers of initia- 
 tive and referendum petitions, 
 115; minimum-wage law, 188 n.; 
 township boards, 33S; villages, 
 341 ; renewal of city commission- 
 ers, 434 
 
 Nuisances, common law of, as basis 
 for sanitary police powers, 485- 
 486 
 
 Oberholtzer, E. P., Initiative, Ref- 
 erendum, and Recall in America, 
 105 n. 
 
 Ohio, vote required for amending 
 constitution, 32; question of re- 
 vision of constitution, 33 ; amend- 
 ment of constitution by ref- 
 erendum, 35 ; nonpartisan 
 primaries adopted, 67 ; signa- 
 tures required for initiative pe- 
 tition, lis; special ballots for 
 referenda, 120; governor's term, 
 133 ; governor's salary, 134 ; audi- 
 tor, 153; administrative reorgan- 
 ization, 166; county the repre- 
 sentative district, 201 ; senatorial 
 districts, 201 ; no distinction be- 
 tween legal and equitable reme- 
 dies, 245-246; small-claims court, 
 274 n.; early local government, 
 314; former fees of sheriffs, 327; 
 auditor's fees in Cuyahoga 
 County, 331; township meetings 
 and boards, 338; villages, 341; 
 special statutes relating to cities 
 forbidden, 367, 381, 383 ; optional 
 charter law, 381, 432-433; mu- 
 nicipal home rule, 384-385, 447; 
 referendum on special laws for 
 cities, 407 ; commission govern- 
 ment adopted, 407 n.; city-man- 
 ager plan may be adopted under 
 home rule, 447 
 
 Oklahoma, length of constitution, 
 27; modern aspects of constitu- 
 tion, 20; provisions in constitu- 
 tion regarrling corporations, 30; 
 vote required for amendment of 
 constitution by legislature, 32 ; 
 question of revision of constitu- 
 tion, 33; amendment of consti- 
 tution by referendum, 35; suf- 
 
 frage qualification as to literacy, 
 42, 43 ; legislature may change di- 
 rect legislation, 122; appointment 
 of agents to enforce special laws, 
 169 n. ; powers of board of health, 
 173; health commissioner, 183; 
 municipal home rule, 384-385, 
 
 447 
 Optional charter system, 382, 383; 
 adoption of commission govern- 
 ment by means of, 432-433; 
 adoption of city-manager plan, 
 
 447 
 
 Ordinances, power of city council 
 to pass, 415-418 
 
 Oregon, amendment of constitution 
 by referendum, 35 ; proposed re- 
 vision of constitution, 36; resi- 
 dence requirement for voting, 41, 
 395 ; effect of suffrage qualifica- 
 tions, 44 ; publicity pamphlet, 80 ; 
 regulation of campaign expenses, 
 87, 88; long ballot used, 96-98; 
 experiments in proportional repre- 
 sentation, 102 ; constitutional ini- 
 tiative, no; recall petitions, 126; 
 secretary of state as auditor, 
 153 n.; power of governor over 
 law enforcement, 169 ; compensa- 
 tion of legislators, 206; small- 
 claims court, 274 n.; recall of 
 judges, 2S3 ; jurisdiction of county 
 courts, 326; county districts, 
 341 ; municipal home rule, 384- 
 
 3S5, 447 
 
 Orth, Samuel P., "Our State Legis- 
 latures," 207 n., 217 
 
 Ostrogorski, M., Democracy and 
 the Party System in the United 
 States, 77 n. 
 
 Pardon, governor's power of, 144; 
 and parole, boards of, 181-182 
 
 Parish, as administrative unit in 
 England, 310; in the Southern 
 colonies, 31 1-3 12 
 
 Parsons, Herbert, "Why a Political 
 Party Needs Money," 62 
 
 Partnerships and corporations, def- 
 initions of, 262-265. See also 
 Corporations 
 
 Party, political, definition, 46-47; 
 functions, 47 ; organization, 47- 
 60; state committees, 47-50; 
 local committees, 50-51; state 
 conventions, 51-55; the ma- 
 chine, 56-00; primaries, 61-76;
 
 INDEX 
 
 573 
 
 tests of membership, 64, 66- 
 67; platforms, 74; campaigns, 
 77-Qi; funds, sources of, 83-85; 
 and proportional representation, 
 103-104 ; effect of initiative and 
 referendum on, 124; influence on 
 state legislation, 213-214, 220- 
 222; influence on election of 
 judges, 279, 280; influence of na- 
 tional and state, in cities, 364, 
 366, 368, 369, 404: in cities under 
 home rule, 387-388; in city elec- 
 tions, 398-403 ; municipal, 403- 
 406; abolition of, in city elec- 
 tions, 404-405 ; fusion in city 
 elections, 406 ; influence on 
 municipal administration, 464- 
 466 
 
 Pasadena, California, sewage farm, 
 516; revenue from public-service 
 enterprises, 534 n. 
 
 Passaic, New Jersey, foreign-born 
 population, 349 
 
 Patrolmen in the police force, 477- 
 478 
 
 Patronage, use of, in machine pol- 
 itics, 59-60, 46s 
 
 Pavements, street, 502-504 
 
 Pennsylvania, estimated wealth, 5 ; 
 early constitution framed by con- 
 vention, 20 ; no amendment of 
 early constitution, 20; single- 
 chambered legislature provided 
 in early constitution, 21; ap- 
 pointment of judges in early con- 
 stitution, 21; provision for con- 
 stitutional convention, 32 ; Dec- 
 laration of Rights, 39; suffrage 
 conditioned on property. 42 ; dis- 
 trict for state party committee, 
 48 ; annual registration in prima- 
 ries, 61-62; nonpartisan pri- 
 mary adopted, 67; campaign 
 methods, 79 ; type of ballot used, 
 93 ; governor's term, 133 ; gover- 
 nor's salary, 134; governor's use 
 of veto, 138; governor's power 
 of removal, 143 ; appointment of 
 secretary of state, 150; appoint- 
 ment of attorney-general, 151; 
 organization of department of 
 labor, 160; state constabulary, 
 171; health commissioner, 183; 
 salary of legislators, 206; busi- 
 ness taxes, 229; term of judges. 
 2S1 ; jurisdiction of county 
 courts, 325; township boards and 
 
 meetings, 338; villages, 341; spe- 
 cial statutes relating to cities for- 
 bidden, 370; municipal home 
 rule, 384 n.; suffrage conditioned 
 on residence, 395 ; suffrage con- 
 ditioned on payment of taxes, 
 397 ; commission government for 
 cities, 432; power of mayor 
 under commission government, 
 437; election of fiscal officers 
 under commission government, 
 438; centralized bureau for fire 
 protection, 480 ; taxation of in- 
 tangible property, 538 ; municipal 
 debt limit, 549 
 
 Pensions for municipal employees, 
 468-469 
 
 Petition, use of, in direct legislation, 
 109-117, 438-439; signatures, 
 111-116; substitution of fee for, 
 114; in the recall, 126-127, 439; 
 nomination by, 399-401, 434, 
 447 ; use of, in adopting com- 
 mission government by general 
 or optional-charter laws, 443 
 
 Philadelphia, Pennsylvania, early 
 establishment of board of health, 
 182, 485; chartered as borough, 
 313 n.; city and county bound- 
 aries coincide, 318; industrial 
 population, 346; area, 346; 
 aliens, 350; a close corporation, 
 360 ; fines levied in colonial bor- 
 ough for failure to accept office, 
 361; salary of city council, 412; 
 term and reeligibility of mayor, 
 421; mayor's salary, 423; need 
 not adopt commission govern- 
 ment, 432 ; control of city council 
 443 ; number of administrative 
 departments, 457; appointment 
 of board of education, 458-459 n., 
 523; civil service, 467; organiza- 
 tion of police force, 474 ; training 
 school for policemen, 478 ; train- 
 ing school for firemen, 4S2 ; or- 
 ganization of fire department, 
 482 ; cost of fire department, 
 484 ; source of water supply, 508 ; 
 purification of water supply, 508 ; 
 debt for sewerage, 517 
 
 Phillips, J. B., "Educational Quali- 
 fications of Voters," 42 n. 
 
 Pittsburgh, Pennsylvania, growth 
 from settlement around fort, 345 ; 
 not required to adopt commis- 
 sion government, 432 ; cost of
 
 574 STATE AND MUNICIPAL GOVERNMENT 
 
 fire department, 484; cost of 
 public-health work, 4Q0 ; cost of 
 streets, 499 ; purification of water 
 in, 508 
 
 Platform, party, 52-53 
 
 Piatt, Thomas C, Autobiography, 
 222 n. 
 
 Pleadings in civil cases, 295-296, 
 
 2Q7 
 
 Pocket veto in states, 137 n. 
 
 Police, municipal, in period from 
 1820 to 1850, 365 ; in period 
 from 1850 to 1870, 366-367; 
 proper control of state over, 
 389; definition of term, 470; 
 functions and duties, 470-472 ; 
 European and American concep- 
 tions of, 472-473; difficulties of 
 administration in United States, 
 473-474; development, 474-475; 
 state versus local control, 475- 
 476; chief of, 476-477; organi- 
 zation of department, 476-478 ; 
 schools for, 478; cost, 478-479 
 
 Police, state, 171 
 
 Police commissioner, 476 
 
 Police power, of the states, 10, 15- 
 16; a limitation on private prop- 
 erty, 249 ; interference of Federal 
 courts under Fourteenth Amend- 
 ment, 276-277; exercise by coun- 
 ties, 324; exercise by city coun- 
 cil, 416; meaning of, and con- 
 nection with the administrative 
 police, 470; in relation to sani- 
 tation, 485-486 
 
 Poll taxes in connection with vot- 
 ing, 3Q7 
 
 Poor relief. See Charities and Cor- 
 rections 
 
 Population, of the states, variations 
 in, 4-5; of counties, 318; of 
 towns, 333-334; of cities, 347- 
 348; growth of, 364, 369-370, 
 371-372 
 
 Porter, M. P., "Preferential Voting 
 and the Rule of the Majority," 
 loi n. 
 
 Portland, Oregon, commission gov- 
 ernment in, 432, 433; assignment 
 of departments under commission 
 government, 435 ; election of fis- 
 cal officers under commission 
 government, 438 
 
 Portsmouth, Virginia, school ex- 
 penditures, 528 
 
 Posse comitalus, 327-328 
 
 Preferential voting, required for 
 party elections in Idaho and 
 Wisconsin, 73; theory of, loi- 
 102 ; use in municipal elections, 
 402 
 
 Primary, in general, 61-76; regis- 
 tration, 61-62; definition, 62- 
 63 ; functions and organization, 
 63 ; nomination of candidates by, 
 63 n.; procedure, 64; party tests, 
 64 ; merits and faults, 65 ; pur- 
 pose of direct, 65-66; procedure 
 of direct, 66 ; open and closed, 
 66-67, 3QS; nonpartisan, 67-68, 
 398-399, 434, 447, 465; merits 
 and faults of direct, 68-76; in 
 South Dakota, 75 ; conclusions 
 regarding, 76 ; nomination in 
 cities, 398-399 
 
 Privileges and immunities of citi- 
 zens of the United States, 12-13 
 
 Procedure, legislative, 217-221; ju- 
 dicial, 291-298 
 
 Prohibitions, on federal govern- 
 ment, 8-9; on states, 9-13 
 
 Promotion, of municipal employees, 
 468; of teachers, 525-526 
 
 Property, meaning in Fourteenth 
 Amendment as interpreted by the 
 courts, 12; holding of, as qualifi- 
 cation for voting, 42 ; taxation, 
 225-229, 535-540; ownership, 
 248-249; right of, 248-251; emi- 
 nent domain, 249; real and per- 
 sonal, 250-251; ownership of, in 
 cities, 357; qualifications for vot- 
 ing in cities, 304, 396-397; as 
 qualification for mayor, 422 ; dif- 
 ficulties encountered by city 
 planning in taking private, 494; 
 restrictions on, by zoning ordi- 
 nances, 501; assessment of, for 
 taxation, 535-536; valuation, 
 
 536-537 
 Proportional representation, 102- 
 
 104, 402-403, 451 
 Protest, the, in Dcs Moines plan of 
 
 commission government, 430 
 Providence, Rhode Island, garbage 
 
 disposal in, 513 
 Public health, state administration 
 
 of, 182-185; early attempts, 182; 
 
 state board, 182-183; powers 
 
 and duties of state board of, 
 
 183, 184; executive officer, 183; 
 
 training of officers for, 183 n.; 
 
 relation between state and local
 
 INDEX 
 
 575 
 
 authorities, 184-185, 389; regu- 
 lation of industries for, 185- 
 187 ; municipal department of, 
 485-490; organization of munic- 
 ipal department of, 4S6; rela- 
 tion of municipal department of, 
 to other departments, 486-487 ; 
 functions of municipal depart- 
 ment of, 487-490; hospitals, 530 
 Public-service commissions, 191- 
 
 193, 519 
 
 Public-service enterprises, taxation 
 of, 228-229, 539-540; franchises 
 of, 518-520; types, 520; munic- 
 ipal operation, 521; earnings as 
 source of municipal revenue, 541 
 
 Public utilities, state regulation of, 
 191-192; definition, 517-518; in 
 cities, 517-521; granting of 
 franchises, 518; duration of 
 franchises, 518-519; regulation 
 of rates in franchise, 519-520; 
 reversion of plant, 520; types, 
 520; municipal versus private 
 operation, 521; earnings from 
 municipal operation of, 541 
 
 Public works, administration of, by 
 the state, 193 ; administration of, 
 by the county, 324 
 
 Publicity pamphlet, 80 
 
 Purification, of water supply, 508- 
 509; of sewage, 515-516 
 
 Qualifications, for suffrage, 40-47 ; 
 for mayor, 422-423 
 
 Quasi-corporation, the county as, 
 317, 318-319; the New England 
 town as, 333 ; the township as, 
 337; Southern and Western 
 county districts not, 339 
 
 Qito warranto, writ of, for infor- 
 mation, 266 
 
 Railroads, state regulation of, 192 
 Rallies as a campaign method, 80- 
 
 81 
 Rates, for supply of water, 511; 
 regulation of, in public-utility 
 franchises, 519-520; of taxation, 
 
 541 
 
 Ray, P. O., Political Parties and 
 Practical Politics, 54 n., 56 n., 62, 
 77 n., 79 n., 92 n.; in American 
 Political Science Revieii\ 99 n. 
 
 Recall, of judicial decisions, 26, 
 283-284; of officers, definition, 
 126; how invoked, 126-127; 
 
 operation, 127; advisory, 127; 
 frequency of use, 128; of the 
 governor, 133 ; of judges, 283 ; in 
 cities, 408; in commission gov- 
 ernment, 439-440 
 
 Recorder in colonial boroughs, 361 
 
 Reduction of garbage, 513 
 
 Referendum, definition, 106, 116; 
 constitutional, 106-107 ; statu- 
 tory, 107 ; compulsory or op- 
 tional, 107-108, 223 ; petition for, 
 117; limitations on, 11 7-1 19; 
 submission to voters, 119-122; 
 majority required, 121-122; veto 
 by governor and change or re- 
 peal by legislature, 122; effect 
 on electorate, 123-124; effect on 
 parties, 124; effect on the ma- 
 chine, 124-125 ; effect on the bal- 
 lot, 125; effect on legislation, 
 223-224; of charter amendments 
 in cities of Illinois and Ohio, 
 383 ; in cities, 406-408 ; in con- 
 nection with franchises, 417; in 
 connection with commission 
 government, 439; on ordinances 
 under city-manager plan, 448 
 
 Reform, in state administrative sys- 
 tem, 163-167; in municipal ad- 
 ministration, 372 
 
 Refuse, disposal of, in cities,5i2-5i3 
 
 Registrar of deeds, 331 
 
 Registration for voting, effect of 
 requirement, 45, 397 ; in the 
 primaries, 61-62; in parties, 64; 
 required by election laws, 91; by 
 mail, 100 
 
 Reinsch, P. S., American Legisla- 
 tures and Legislative Methods, 
 45 n., 155 n., 197 n., 200 n., 202 n., 
 203 n., 210 n., 217 n., 218 n., 
 221 n., 222; Readings on Amer- 
 ican State Government, 200 n., 
 207 n., 216 n.; English Common 
 Law in Early American Colonies, 
 
 243 
 
 Removal, of governor, 133-134; of 
 local law-enforcing officers by 
 governor, 169; of sheriff by gov- 
 ernor, 169, 328; of judges, 282- 
 283; power of mayor in, 370, 
 428-429; of mayor by governor 
 in some New York cities, 422; 
 of municipal administrative offi- 
 cers, 461 
 
 Reserved powers in Federal Consti- 
 tution, 14-16
 
 576 STATE AND MUNICIPAL GOVERNMENT 
 
 Residence, as qualification for vot- 
 ing, 41, 395-396; meaning of, 
 395 ; as qualification for mayor, 
 422 
 
 Resources, natural, of the states, 5 
 
 Revenue, of the states, sources, 
 225; taxation for, 225-230; table, 
 226; collected by counties, 319; 
 of cities, 534-542 
 
 Review of RevieTi's, 54 n. 
 
 Revision, of state constitutions, dif- 
 ferent from amendment, 31 ; pro- 
 visions for, 32-36; by conven- 
 tions, 32-35 ; by direct legisla- 
 tion, 35 
 
 Rhode Island, area and population, 
 4 ; early constitution, 19 ; pro- 
 vision for constitutional conven- 
 tion, 32; voting conditioned on 
 residence, 41, 395; party rules 
 for admission to primaries, 64 ; 
 no direct primary, 6Sn.; pro- 
 vincial governor and council, 
 132; use of veto, 138; appoint- 
 ment of board of education, 173; 
 department of charity, 179; an- 
 nual sessions of legislature, 203 ; 
 appointment of higher judges, 
 278 n.; area of Bristol County, 
 318; election of county judges, 
 325; no county treasurer, 330; 
 town council, 335 n.; duties of 
 town clerks, 336; school districts 
 of towns, 336; voting in cities 
 conditioned on property, 396; 
 voting conditioned on payment 
 of poll tax, 397 ; no commission- 
 governed cities, 432 
 
 Richards' Law in South Dakota, 75 
 
 Richmond, Virginia, borough char- 
 ter, 313 n.; poor relief, 529 
 
 Rights, protected against states by 
 Federal Constitution, 11-13; 
 guaranteed in state constitutions, 
 22-23, 28-29; legal, 246-247; 
 fundamental, 247-251 
 
 Rochester, New York, may not 
 adopt optional charter, 382 ; 
 county care of poor relief, 529 
 
 Roosevelt, Theodore, doctrine as to 
 recall of judicial decisions, 26; 
 governor of New York, 146 
 
 Root, Elihu, chairman of New 
 York Constitutional Convention, 
 
 163 
 Rose, J. C," Negro Suffrage," 43 n., 
 44 n. 
 
 Rosenau, M. J., Preventive Medi- 
 cine and Hygiene, 48S n. 
 Rubbish, disposal of, in cities, 512 
 Rule of law, meaning, 23 ; in state 
 constitutions, 25-26 
 
 St. Louis, state control of police 
 force, 169, 475 ; city and county 
 boundaries coincide, 3 iS; popular 
 election of mayor by charter of 
 1822, 364; board of freeholders, 
 385; mayor's term, 421; resi- 
 dence requirement for mayor, 
 422; number of administrative 
 departments, 457; softening of 
 water supply, 507 ; source of 
 water supply, 508 
 
 St. Paul, has commission govern- 
 ment, 432; assignment of depart- 
 ments, 435; veto of mayor, 437; 
 election of fiscal officers, 438 
 
 Salary, of governor, 134; of state 
 legislatures, 204-205, 206; of 
 sheriffs, 327; of city councilors, 
 412; of mayors, 423-424; of 
 commissioners in commission 
 government, 434-435 ; of mayors 
 in commission government, 436 ; 
 of commissioners and mayor in 
 Dayton city-manager plan, 448; 
 of city manager in Dayton, 448 ; 
 of municipal administrative of- 
 ficers, 461 ; of school-teachers, 
 526-527; of overseers of the 
 poor, 530 
 
 Salt Lake City, sewage farm in, 
 
 S16 
 
 San Antonio, Texas, source of water 
 supply, 507 
 
 Sanderson, J. F. See Finley, J. H. 
 
 San Diego, California, election of 
 fiscal officers under commission 
 government, 438 
 
 San Francisco, city and county 
 boundaries coincide, 318; size of 
 council, 411; residence require- 
 ment for mayor, 422; mayor's 
 salary, 423 ; necessary vote to 
 override mayor's veto, 425; fire 
 board, 482 ; high cost of fire 
 department, 484; appointment of 
 school board, 523 
 
 Sanitation, municipal, supply of 
 water, 505-511; waste disposal, 
 511-513; sewage, 513-517 
 
 San Jose, California, revenue from 
 miscellaneous sources, 535 n.
 
 INDEX 
 
 577 
 
 Savannah, negro population in, 
 349 n.; commission government 
 rejected, 432 
 Sciinader, W. A., "Proper Safe- 
 guards for the Initiative and 
 Referendum Petition," ioq n. 
 Schools, in cities, increased demand 
 for, 373; police, 478; for train- 
 ing firemen, 482; evening, 527; 
 vocational, 527-528; for defec- 
 tives, 528; open-air, 528; as aids 
 to public health and to good 
 citizenship, 52S. See also Edu- 
 cation 
 Scranton, Pennsylvania, not re- 
 quired by state law to adopt 
 commission government, 432 
 Screening, sewage treatment by, 515 
 Secretary of state, 150-151 
 Securities, state supervision of, iqi 
 Sedimentation, sewage treatment 
 
 by, 515 
 
 Selectmen, 335 
 
 Separation of powers, in state con- 
 stitutions, 24-26; in municipal 
 government, 363-364; abandoned 
 by commission form of govern- 
 ment, 430 
 
 Septic tanks, purification of sewage 
 
 by, 515 
 
 Serial bonds, 237, 550 
 
 Sessions of state legislatures, 203, 
 206; table, 204-205 
 
 Sewage, in cities, 373, 513-S.17; 
 disposal, 513-515; purification, 
 515-516; organization of de- 
 partment for, 516-517; finances, 
 
 517 
 
 Sewage farms, 516 
 
 Sewer department, work, 516; ex- 
 penditures, 517 
 
 Sex, as qualification for voting, 40- 
 41, 395; population in cities ac- 
 cording to, 351-352 
 
 Sheriff, removal by governor, 169, 
 328; as judicial officer, 284-2S5; 
 execution of court judgments, 
 297; in counties, 327-329; in 
 colonial boroughs, 361 
 
 Short ballot, 05-99 \ in municipal 
 elections, 402 
 
 Shreveport, Louisiana, small school 
 expenditures in, 528-529 
 
 Shreveport case, 192 
 
 Shultz, B. E. See Beard, C. A. 
 
 Sidewalks, 504-505 
 
 Sinking funds, 236-237, 550 
 
 Slaughter House Cases, 12-13 
 
 Sliding scale for rates in public 
 utilities, 519-520 
 
 Smith, R. H., "Justice and the 
 Poor," 272 n., 274 n. 
 
 Snedden, David. See Button, S. T. 
 
 South V. Maryland, 327 
 
 South Bend, Indiana, revenue from 
 special assessments, 534 n. 
 
 South Carolina, negro population, 
 5; early constitution, 20; suffrage 
 conditioned on residence, 41, 395 ; 
 suffrage conditioned on literacy, 
 42 ; effect of suffrage qualifica- 
 tions, 44; direct primary, 68 n.; 
 item-veto, 138 n.; appointment 
 of agents to enforce special laws, 
 169 n.; legislature, annual ses- 
 sion, 203 ; salary of legislators, 
 206 ; no distinction between legal 
 and equitable remedies, 245-246; 
 appointment of higher judges, 
 278 n.; election of county judges, 
 325; local assessors, 330 n.; ap- 
 pointment of county treasurer, 
 330 n.; townships, 340 n.; suf- 
 frage conditioned on payment of 
 taxes, 397 n. ; assignment of de- 
 partments under commission gov- 
 ernment, 435 
 
 South Dakota, Richards' primary 
 law, 75 ; publicity pamphlets. 
 Son.; signatures required on ini- 
 tiative petition, 114-115; emer- 
 gency legislation, 117-118; effect 
 of initiative and referendum in, 
 124; term of legislature, 203; 
 county assessment of property, 
 330 n.; township boards, 338; 
 villages, 341; extension of fran- 
 chise to noncitizens, 394; resi- 
 dence requirement for voting, 
 395 ; renewal of city commis- 
 sioners, 434 
 
 Sovereignty, popular, in state con- 
 stitutions, 21-23; in relation to 
 judicial review, 25-26; in regard 
 to amending constitutions, 30; 
 and the electorate, 39 ; in law- 
 making, 240 ; courts as agents of 
 self-government, 304-305 
 
 Sovereignty of states, 8 
 
 Speaker of state house of repre- 
 sentatives, 207-209 ; powers of, 
 208-209 ; appoints committees, 
 209 
 
 Special assessments, 504, 540
 
 578 STATE AND MUNICIPAL G0VERN:\IENT 
 
 Special legislation, limited by state 
 constitutions, 197-198; for cities, 
 367, 370, 372, 378-383; as means 
 of adopting commission govern- 
 ment, 433 ; city-manager plan, 
 
 447 
 Spoils system in cities, 364, 366, 
 
 369, 371- 466 
 
 Spokane, Washington, commission 
 government adopted under home- 
 rule law, 433 
 
 State V. Jones, 381 
 
 State ex rel. v. Olcott, 122 n. 
 
 State Tonnage Tax Cases, 10 
 
 States, nature of the, 3-17; political 
 importance, 3-4 ; variations in 
 area and population, 4-5 ; vari- 
 ations in climate and resources, 
 5 ; simUarities, 5-6 ; one nation- 
 ality, 6; and the nation, 7-17; 
 as bodies politic, 7-8 ; not sov- 
 ereign, 8; prohibitions upon, in 
 Federal Constitution, 9-17; obli- 
 gations imposed on, 13 ; limita- 
 tions on, through powers dele- 
 gated to federal government, 14; 
 reserved powers, 14-16; consti- 
 tutions, 18-36; political system, 
 39-128; organization and func- 
 tions, 131-305; governor, 131- 
 148; administration, 149-193; 
 legislature, 194-224; finance, 225- 
 237; legal system, 238-267; ju- 
 dicial system, 268-305 ; legal po- 
 sition of city in, 375; attitude of 
 legislature of, toward city, 378; 
 special legislation for cities, 379- 
 380 ; limitations of power over 
 cities. 380-381 ; restricted by pro- 
 hibition of special legislation, 
 381; regulation of special legis- 
 lation, 382-383 ; optional city 
 charters, 382 ; municipal home 
 rule, 383-388; proper control 
 over cities, 388-392 ; methods of 
 exercising control over cities, 
 390-302 ; power of, over city 
 administration, 458, 459-460; 
 power of, over municipal police, 
 475-476 
 
 Statistics, of delegates to a party 
 convention, 54 n.; of expense? of 
 state government, 230; of state 
 debts, 235 ; of increases in popu- 
 lation, 347-348 ; of aliens in cities, 
 340; of sex in cities, 351; of 
 death rate in cities, 354; of 
 
 literacy in cities, 356; of growth 
 of cities, 364, 369-370, 371-372; 
 of city-manager-plan citl,;s, 451- 
 452 ; of cost of police depart- 
 ments, 478-479; of fire losses, 
 479; of cost of fire departments, 
 4S4; of cost of public health, 
 489-490; of cost of streets, 499- 
 500; of cost of water supplies, 
 510; of sewage and sewerage 
 finance. 517; of school finance, 
 528-529; of municipal expendi- 
 tures, 533, 542-543 ; of sources of 
 municipal revenue, 534 ; of mu- 
 nicipal debts, 548-549 
 
 Staunton, Virginia, city manager 
 first adopted, 446 
 
 Stimson, F. J., American Constitu- 
 tion, Federal and State Consti- 
 tutions. 8 
 
 Stockton, California, revenue from 
 special assessments, 534 
 
 Story, R. M., The American Mu- 
 nicipal Executive, 419 n., 435 n., 
 437 n-, 448 n. 
 
 Streets, maintenance of, in cities, 
 370, 373; importance, 496-497; 
 department, organization and 
 functions, 497 ; acquisition of 
 land for, 498-499 ; cost, 499- 
 500 ; classification, 500 ; special 
 problems. 500-502 ; methods of 
 construction and pavements, 502- 
 504; sidewalks, 504-505 
 
 Subpccna, writ of, 297 
 
 Suffrage, in the states, restrictions 
 on, 39-40; present qualifications, 
 40-44; disqualifications, 44; 
 effect of various qualifications, 
 44-45; election districts, 45-46; 
 in cities, 364, 394-3P7 
 
 Sumter, South Carolina, city-man- 
 ager plan adopted. 446 
 
 Supremacy, federal, 16-17; of the 
 Constitution, 17; of law, 23; 
 legislative, in state constitutions, 
 27 ; over cities, 363 
 
 Supreme Court of the United 
 States, on the police power, 15, 
 239; as court of appeal from 
 state courts. 276-277; power to 
 declare statutes unconstitutional, 
 301-302 
 
 Survey as basis for city plan, 494 
 
 Tables, of members, terms, sessions, 
 and salaries ol state Icgisla-
 
 INDEX 
 
 579 
 
 tures, 204-205 ; of state revenue 
 receipts, 226; of state govern- 
 mental-cost payments, 230; of 
 urban and rural population, 347 ; 
 of municipal expenditures, 544 
 
 Tacoma, Washington, election of 
 fiscal officers under commission 
 government, 438 n. ; revenue from 
 public-service enterprises, 534 n. 
 
 Tammany Hall, organization and 
 influence, 56-58 
 
 Tampa, Florida, revenue from mis- 
 cellaneous sources, 535 n. 
 
 Taunton, Massachusetts, amend- 
 ment of charter, 376 
 
 Taxation, municipal, grant of powers 
 of, 365 ; tax rate determined by 
 city council, 416; chief source of 
 municipal revenue, 534 ; general- 
 property, 535-537; state income 
 tax, 538-539; on public-service 
 enterprises, 539-540 ; on business, 
 540; rate of, 540; collection of, 
 
 540-541 
 
 Taxation, state, restrictions of 
 Federal Constitution on, 9-10; 
 of instruments of the federal 
 government, 10 ; effect on, of 
 federal power, 14; kinds, 225- 
 230; general-property, 225-227, 
 535-537; income, 227-228, 538- 
 539; inheritance, 228; corpora- 
 tion, 228-229; business, 229; 
 limitations on, 229-230; subjec- 
 tion of private property to, 249 ; 
 levied or collected by counties, 
 3i9> 323, 330; valuation of 
 property for, by assessors, of 
 counties, 330; lev'ied or collected 
 by treasurers or by constables in 
 towns, 336, 337 ; of New England 
 towns, 336; by township boards 
 in central states, 337; payment 
 of, as suffrage qualification, 397 
 
 Taxpayer's suit, 235 
 
 Teachers in the schools, 175-176, 
 
 525-527 
 Tennessee, amendment of consti- 
 tution, 32; constitutional con- 
 vention, 32; power of legislature 
 over militia, 144-145 ; appoint- 
 ment of auditor, 153 n.; term of 
 legislature, 203 ; jurisdiction of 
 county courts, 271, 326; early 
 local government, 314; organi- 
 zation of county boards, 322; 
 local assessors, 330 n.; civil dis- 
 
 tricts, 340; payment of poll tax 
 required for voting, 397 
 
 Term, of governor, 20, 133 ; of state 
 legislatures, 203 ; of state legis- 
 latures, table of, 204-205 ; of 
 judges, 281-282 ; of town officers, 
 335> 336; of colonial mayors, 
 360; of city councils, 411; of 
 mayors, 421-422; of commis- 
 sioners in commission govern- 
 ment, 434; of heads of adminis- 
 trative departments, 460-461; of 
 school-teachers, 526 
 
 Texas, area, 4; amendment of con- 
 stitution provided for by consti- 
 tutional convention, 32 ; direct 
 primaries, 68 n. ; administrative 
 consolidation, 165; Rangers, 171; 
 debt restrictions, 235 ; popula- 
 tion of smallest county, 318; 
 precincts in, 340 ; special statutes 
 relating to cities forbidden, 370; 
 municipal home rule, 3S4, 447 ; 
 extension of franchise to non- 
 citizens, 394; payment of poll 
 tax required for voting, 397 ; re- 
 call in cities, 408; city-manager 
 plan may be adopted under 
 home rule, 447 
 
 Textbook, campaign, 80 ; in schools, 
 
 175 
 
 Thorpe, F. N., Federal and State 
 Constitutions, 18 n. 
 
 Tocqueville, Alexis de, on the ac- 
 tion of juries, 304-305 
 
 Tonnage, states may not tax, 10 
 
 Torrens system of land registra- 
 tion, 331 
 
 Torts, definition, 251-552, 256-257 ; 
 varieties, 257-259; liability of 
 county for, 318-319; liability of 
 city for, 378 
 
 Town, in New England, units for 
 legislative representation. 201 ; as 
 administrative unit in England, 
 310; in New England colonies, 
 312; in the middle colonies, 312- 
 313; in New England, definition 
 and characteristics of, 333-334 ; 
 town meeting, 334-335; select- 
 nien, 335; town clerk, assessors, 
 treasurer, and school committee, 
 336; justices of the peace, 336- 
 337; others, 337 
 
 Township, in central states, 337- 
 339; definition and characteris- 
 tics, 337; meetings, 337-338; of-
 
 58o STATE AND ^MUNICIPAL GOVERNMENT 
 
 ficers, 338-339; justices of the 
 
 peace, 339; school districts, 339 
 Train, Arthur, The Prisoner at the 
 
 Bar, 288 n. 
 Transportation systems in cities, 
 
 520 
 Treason, 252 
 Treasurer, state, 152-153; county, 
 
 330-33^; town, 336; in colonial 
 
 boroughs, 361 
 Trenton, New Jersey, chartered as 
 
 colonial borough, 313 n., 360 
 Trial, in criminal cases, 292-295; 
 
 in civil cases, 296-297 
 True bill, 287 n. See Indictment 
 Tso-Shuen Chang, History and 
 
 Analysis of the Commission and 
 
 City Manager Plans, 445 n. 
 
 United States Congress, Judiciary 
 Act of 1916, 276, 284; Immigra- 
 tion Act of 1913, 356 
 
 United States Department of Com- 
 merce, Bureau of the Census, 
 Financial Statistics of States 
 (1919), 230, 235 n.; Financial 
 Statistics of Cities, 373 n., 479 n., 
 484 n., 489 n., 499 n., 50°"-, 
 Sion., 51711., 529 n., 533. 534 n., 
 535 n., 540 n., 542 n., 543 "-, 
 548 n., 549 n. ; Comparative Fi- 
 nancial Statistics of Cities under 
 Council and Commission Gov- 
 ernment, 1013 and 1915, 431 n., 
 443 n. ; General Statistics of Cities 
 (1915), 507 n. 
 
 United States Provost Marshal 
 General, Second Report on Op- 
 erations of the Selective Serv- 
 ice System, 355 n. 
 
 Universities, state, 176 
 
 Utah, adopts woman suffrage, 40; 
 limitation on legislative action, 
 135 ; term of legislature, 203 ; size 
 of Senate, 203 ; executive budget 
 in, 234; municipal home rule, 
 384 n. ; commission government 
 for cities, 432 
 
 Vermont, single-chambered legisla- 
 ture, 21 n.; amendment of con- 
 stitution provided by constitu- 
 tional convention, 32; absent 
 votins, 09 ; majority vote re- 
 quired for election of governor, 
 133; administrative consolida- 
 tion, 173; representative districts, 
 
 201 ; cities under- represented, 
 202; county courts, 271; ap- 
 pointment of higher judges, 
 278 n.; term of judges, 281; 
 election of county judges, 325; 
 appointment of county clerks, 
 329; appointment of county treas- 
 urers, 330 n.; no commission- 
 governed cities, 432 
 
 Veto, power of the governor in 
 early constitutions, 21; on direct 
 legislation, 122; on legislative 
 measures, 136-139, 220; on sep- 
 arate items, 137-138; extent and 
 influence, 138-139 ; as limitation 
 on legislature, 196; power of the 
 courts, 301-302, 304; no power 
 of, by mayor in colonies, 360; 
 development and present, 363, 
 364-365, 368, 370, 425; merits, 
 425-426; in commission govern- 
 ment, 436, 437 
 
 Villages, definition, 341 ; functions, 
 organization and officers, 342 
 
 Virginia, early constitution framed 
 by convention, 20; no amend- 
 ment provided in early constitu- 
 tion, 20; election of judges, 21; 
 separation of powers, 24; Bill 
 of Rights, 24, 28; constitutional 
 conventions in, 34; early suf- 
 frage qualifications, 39; later 
 suffrage qualifications, 41, 42; 
 item-veto, 138; appointment of 
 board of education, 173; ap- 
 pointment of higher judges, 
 278 n.; early parish and county, 
 310-31 1, 314; coincidence of 
 city and county boundaries, 318; 
 organization of county boards, 
 322; election of county judges, 
 325; magisterial districts, 340; 
 optional-charter system, 382, 
 432-433 ; suffrage conditioned on 
 residence, 395 ; suffrage condi- 
 tioned on property and payment 
 of poll tax, 307 
 
 Voters. See Electorate 
 
 Waco, Texas, salary of mayor and 
 commissioners, 435, 436 
 
 Washington, D. C, growth from 
 political forces, 345; street area, 
 496; source of water supply, 
 508; water purification in, 508; 
 revenue from miscellaneous 
 sources, 534
 
 INDEX 
 
 581 
 
 Washington, suffrage qualification 
 in, 42 ; effect of suffrage quali- 
 fication, 45 ; nonpartisan pri- 
 maries adopted, 67 ; circulation 
 of initiative and referendum peti- 
 tions, 112; legislature may not 
 immediately change direct leg- 
 islation, 122; recall, 126, 127; 
 item-veto, 138; municipal home 
 rule, 384, 447 
 
 Waste disposal, municipal, impor- 
 tance, 511; ashes and rubbish, 
 512; refuse, 512-513; garbage, 
 513; sewage, 513-517 
 
 Watchers at the polls, 90 
 
 Water supply, in cities, construc- 
 tion of Croton aqueduct for New 
 York City, 365; development, 
 367, 373; importance, 505; req- 
 uisites, 505-507 ; sources, 507- 
 508; purification, 508-509; de- 
 partments, 509-510; finance and 
 rates, 510-511 
 
 Wealth, estimated, of various 
 
 Weber, A. F., Growth of Cities, 
 345 n., 348 n-. 351 "v 352 n., 
 353 n., 354 n., 357 "-, 358 n. 
 
 West Hoboken, New Jersey, area 
 and population, 346; revenue 
 from miscellaneous sources, 535 n. 
 
 West Virginia, governor's power of 
 removal, 143 ; jurisdiction of 
 county courts, 271, 326; magis- 
 teriaUdistricts, 340; special stat- 
 utes relating to cities forbidden, 
 370; residence requirement for 
 voting, 395 
 
 Whipple, G. C, Value of Pure 
 Water, 505 n., 507 n. 
 
 White, F. H., "Growth and Future 
 of State Boards and Commis- 
 sions," 154 n-, iSSn- 
 
 Wichita, Kansas, revenue from 
 special assessments, 534 n. 
 
 Wilcox. D. F., Government by All 
 the People, 105 n. ; The Great 
 Cities of America, The Ameri- 
 can City, 345 n. 
 
 Willoughby, W. F., The Movement 
 for Budgetary Reform in the 
 States, 232 n. 
 
 Willoughby, W. W., The Constitu- 
 tional Law of the United States, 
 13 n., 146 n. 
 
 Wilmington, Delaware, revenue 
 from miscellaneous sources, 535 n. 
 
 Winston-Salem, North Carolina, 
 school expenditures, 528 
 
 Wisconsin, disqualification for vot- 
 ing, 44 n. ; requirement for use 
 of preferential ballot in party 
 elections, 73 ; regulation of cam- 
 paign expenses, 87 ; term of 
 governor, 133 ; secretary of state 
 acts as auditor, 153 n.; removal 
 of county officers by governor, 
 169 n.; count}' superintendent of 
 education, 172-173; regulation 
 of public utilities, 192 ; attitude 
 of courts toward legislative ap- 
 portionments, 203 ; regulation of 
 lobby, 215-216; legislative refer- 
 ence department, 216; county 
 boards, 321; removal of sheriffs 
 by governor, 328; township of- 
 ficers, 338; villages, 341; munici- 
 pal home rule, 384 n.; extension 
 of franchise to noncitizens, 394 ; 
 residence requirement for voting, 
 395 ; term of city commissioners, 
 
 434 
 
 Wisconsin Legislative Reference 
 Department established to sup- 
 ply information formerly fur- 
 nished by lobbies, 216 
 
 Woman suffrage, spread of move- 
 ment in the states, 40 ; adoption 
 by federal amendment, 41; rea- 
 sons for, 41 
 
 Woonsocket, Rhode Island, foreign- 
 born population, 349 
 
 Worcester, Massachusetts, disposal 
 of garbage, 513; disposal of 
 sewage, 515 
 
 Workers, party, who they are, 58 ; 
 expenses, 82 
 
 Workmen's compensation laws, 
 1S6-187 
 
 Writs, kinds of, issued by the courts, 
 266-267, 295, 297, 298-209 
 
 Wyoming, density of population, 
 5 ; vote required for amendment 
 of constitution, 32; woman suf- 
 frage, 40 ; suffrage conditioned on 
 literacy, 42 ; publicity pamphlets. 
 Son.; suffrage conditioned on 
 residence, 395 
 
 Zoning ordinances, 500-501 
 
 PRINTED IN THE UNITED STATES OF AMERICA
 
 TMs book is DUE on tlie last date stamped below 
 
 NOV '^ - 195S 
 
 :C 
 
 CESK 
 
 "^Sl t?M4 C 
 
 NOV 7V»4 
 
 Form L-9-15m-7,'32
 
 (If '-,iii iTHt Hti RFGinfvlA! I IRRARY FACII ITY 
 
 AA 000 553 553 9