CHAPTER XXV

THE STATE LEGISLATURE

THE legislature should occupy a high position in the esteem of the citizens of a commonwealth, for in it are made the laws which most vitally affect their lives and property. Unlike the Congress of the United States, the state legislature is not restricted to the exercise of certain powers, but enjoys every right and authority which is not expressly denied to it by the Constitution of the United States or the constitution under which it is erected. It has control over the whole domain of civil law; that is, it lays down the rules governing contracts, real and personal property, inheritance, corporations, mortgages, marriage and divorce, and other civil matters. It defines crime; that is, it prescribes those actions of the citizen which are to be punished by fine or imprisonment or death. It touches the property of the citizen not only by regulating its use, but also by imposing upon it a burden of taxation. Finally, it has control over that vast domain known as the police power, under which it makes regulations concerning public health, morals, and welfare, devises rules for the conduct of business and professions, and in other ways restrains the liberty of the citizen to do as he pleases.

When one looks at this vast range of power and then turns to the history of the state legislatures, he is astounded at the decline in public esteem which they have suffered within recent years. They have too often been corrupt, negligent, and wasteful. They have in many instances made laws for the benefit of private persons and corporations and bartered away charters and franchises; and they have even gone so far in some states as to repudiate portions of the public debt. These charges are not based upon mere hearsay evidence. The discreditable record of many of our state legislatures is written in the constitutions of the states, and described more fully in the debates of the

conventions which framed those constitutions. In fact, the legislative history of the nineteenth century is the history of a steady reduction in the power of the legislature. Convention after convention has exhausted its ingenuity in devising new restrictions on its power for evil. For example, the constitutional conventions of Pennsylvania held in 1837 and in 1873 were, to a considerable extent, devoted to the task of providing some way to prevent a renewal of the corrupt actions on the part of the legislature which had discredited that body with the people of the commonwealth.' Likewise the constitutional convention of Kentucky, held in 1890, gave serious attention to discovering methods for checkmating the legislature. "It is a well-known fact," said Mr. Carroll, during the debates in that convention, "that one of the prime causes for calling this convention was the abuses practised by the legislative body of this state; and I venture the assertion that, except for the vicious legislation and the local and special laws of all kinds and character passed by the legislatures that have met in Kentucky for the past twenty years, no proposition to call a constitutional convention could ever have received a majority of the votes of the people of Kentucky.":

On comparing our present state constitutions with the constitutions of the eighteenth century, we find this feeling of distrust recorded in numerous precise restrictions on the exercise of the legislative power. As we have seen, the governor has been given the veto, primarily for the purpose of preventing misappropriation of funds, and hasty and corrupt legislation. To reduce still further the power of the legislatures for evil, some constitutions have restricted their sessions to fifty or sixty days; and the old practice of annual sessions has been almost entirely abandoned. Special and local laws, once the chief source of log-rolling and corrupt bargaining, have been forbidden except under stringent safeguards. Furthermore, a large number of legislative matters relating to education, taxation, and corporations have been treated in several state constitutions so that they have grown in bulk and look very much like statute books. This has been largely due to the belief on the part of the constitution-makers that the legislatures could not be trusted

to do their duty. Even the procedure in the legislative houses is, in part, prescribed in the constitution for the purpose of securing regularity and publicity in the passage of statutes. A great number of states, as we have seen, have gone so far as to establish a complete system of initiative and referendum, thus taking the ultimate legislative power entirely out of the hands of the legislature.

This experience has had a most unhappy effect upon the attitude of the people toward their representatives. It has caused many advocates of honest and efficient government to turn to the executive of the state rather than to the law-making body; and it has brought the citizens to look with more or less contempt upon their representatives in the legislature. Indeed, this attitude of criticism and ill-will has gone entirely too far. Too much stress has been laid upon the sensational exposures which have in so many instances discredited the representative branch of our state government. As Professor Reinsch has pointed out, the most superficial acquaintance with our legislatures will "reveal the fact that they are fairly representative of the American people and that there is in them a great deal of honest effort to grapple with the difficult problems of legislation, misguided though this effort may be at times, for lack of authentic information, and thwarted by certain vicious arrangements in our political systems."1

The Structure of the Legislature

The general term applied to the representative branch of the state government is "the state legislature"; but the technical name for that body varies from state to state. In about onehalf of the commonwealths it is known as "the general assembly"; in a few states as the "legislative assembly"; and in New Hampshire and Massachusetts as "the general court." All of the states call the upper house of the legislature the senate; and in most of them the lower house is known as the house of representatives, though in some states, including New York, it bears the name of the assembly, and in a few others that of the house of delegates. In determining the number of members of the legislature, our constitution-makers have arrived at no concensus of opinion.

1 Reinsch, American Legislatures, p. 128.

Massachusetts, with a population of 2,805,346 inhabitants (1900), has 40 members in the upper house and 240 in the lower house; New York, - the most populous state in the Union,containing, in 1900, 7,268,894 inhabitants, has 51 senators and 150 assemblymen. According to Professor Dealey, twenty-one states, varying in population from one to three millions, have, on the average, 40 senators and 115 representatives each. In a word, there is little or no positive effort to establish an exact relation between the number of representatives and the population; but experience has shown that it is wise to have the number prescribed by the constitution of the state in order to prevent the legislature from increasing its own size for political purposes. All of our state legislatures are divided into two houses. Theoretically speaking, there is no obvious reason why there should be an upper house in the state legislature. The House of Lords in England, the Bundesrath in Germany, and the Senate of the United States are to be accounted for by the fact that some provision was made for the representation of the certain interests which could not be merged with those reflected in the lower chamber.' The members of the upper house of the American state legislature are chosen by popular vote; they do not, like the House of Lords, represent the landed interests and the clergy; neither do they represent any large and important subdivisions as do the members of the German Bundesrath and the United States Senate. Many provinces in Canada have singlechambered legislatures, but the constitution-makers in the United States have believed it necessary to provide a second chamber to check hasty and ill-considered measures and to secure a more careful consideration of the laws. How far the original purpose has been realized is open to question.

Our state senates differ from our lower houses in the following particulars: the senatorial districts are always larger than the districts of the lower house-often the senatorial district embraces three assembly districts; the senator is usually chosen for a longer term than the representative-in New York for two years, while the assemblyman enjoys a term of only one year; and it is a frequent practice also to have the state senate, like

'In the beginning of our history, however, the larger property interests were especially represented in the state senate. See above, p. 81.

the Senate at Washington, a continuous body by requiring only partial renewals periodically.1

According to the modern democratic theory of equality, the representatives in the state legislatures should be apportioned among districts containing substantially an equal number of inhabitants. Several of our state constitutions prescribe that representation shall be so distributed, and that after each census there shall be a reapportionment in order to correct the discrepancies caused by changes in the population. This principle has been recognized by about one-third of our states scattered throughout the Union, including commonwealths as far apart as Massachusetts and California, Washington and Tennessee.

About one-third of the states provide for general distribution of representation on the basis of population, with certain minor concessions to local divisions. Alabama, for example, provides that each county shall have at least one member in the house, regardless of the number of its inhabitants. In Florida, there must be at least one and not more than three members from each county in the house, and under this provision, in 1905, four of the most populous counties had only twelve members, whereas on a strict population basis they would have been entitled to eighteen. The constitution of New York likewise recognizes the county as the unit of representation by providing that each one, except Hamilton, shall have at least one member in the assembly-the lower house; and, as Professor Dealey points out, this requirement plays havoc with popular representation, for about one-fifth of the districts fall far below the ratio established by dividing the total population of the state by 150 the membership of the lower house. Not only are the smaller counties over-represented; the more populous counties are under-represented.

Another exception to the democratic theory of equal election districts is the discrimination made in most of our state constitutions against the cities in favor of the rural districts. In the state of New York, for instance, it is provided that no county, no matter how populous, shall have more than one-third of all the senators, and that no two counties, adjoining or separated

1 Bryce, The American Commonwealth (1909), Vol. I, p. 482.

'Indiana apportions representation on a basis of the number of males over twenty-one years.