HARVARD

LAW REVIEW.

VOL. VI.

NO. 3.

OCTOBER 15, 1892.

ONE

RECENT STATE CONSTITUTIONS.1

NE of the most marked features of all recent State constitutions is the distrust shown of the Legislature. The four constitutions we are examining afford further illustration of this increasing tendency. Professor Thorpe, in his paper before referred to, on the constitutions of North and South Dakota, Montana, and Washington, finds that the principal prohibitions on the Legislature are: on enacting any private or special legislation; on extinguishing or releasing the obligations of corporations or of individuals to the State; on legislative bribery; on personal or private interest in a bill, in any member; on irregular form in framing bills; on appropriations of money; on performing legislative functions by deputy; on loaning the credit of the State to corporations; and on authorizing or entertaining money bills during the last hours of the Legislature. In the four constitutions now under examination these restrictions are, if anything, yet more marked.

Mississippi (sec. 87) provides in general that no special or local law shall be enacted for the benefit of individuals or corporations in cases which are or can be provided for by a general law, or when the relief sought can be given by any court of the State; nor shall the operation of any general law be suspended for the benefit of any individual or private corporation or association; and in all

1 Continued from the May number of the Harvard Law Review.

cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted.

So in Kentucky (sec. 62), thirtieth, it is provided, in addition to the twenty-nine special prohibitions alluded to below, that where a general law can be made applicable, no special law shall be enacted. And in Wyoming (Art. III. end of sec. 27) there is the same clause.

But who is to see to it that this rule shall be followed? Who is to be the judge whether a general law is feasible? Would not the Supreme Court decide that this is for the Legislature to determine, and that the fact that they had passed a special law in some new case was sufficient evidence that a general law could not be made applicable? Even supposing some palpable case in which the Legislature passed a special law, where obviously a general law would do, it would require a Supreme Court of uncommonly strong calibre to decide such a special law to be unconstitutional and void.

To guard against this danger of passing special laws, it is also provided in Mississippi (sec. 89) that no local or private bill shall be passed by either House until it shall have been referred to a standing committee on local and private legislation, and shall have been reported back with a recommendation in writing that it pass, stating affirmatively the reasons therefor, and why the end to be accomplished could not be reached by a general law or by a proceeding in court; or if the recommendation of the committee be that the bill do not pass, then it shall not pass the House to which it is so reported, unless it be voted for by a majority of all the members elected thereto. If, however, it be so passed (unless on some subject prohibited), the courts shall not, because of its local, special, or private nature, refuse to enforce it. So in this State, at least, the power of the courts is specially curtailed in this regard; that is to say, the convention, after taking most minute pains to guard against abuse of power by the Legislature, has expressly denied to the courts the power to declare this class of legislation unconstitutional! In the constitutions of Kentucky, Idaho, and Wyoming no provision is made on this subject.

Each constitution, moreover, contains a long list (Miss., sec. 90; Ky., sec. 62; Idaho, Art. III. sec. 19; Wy., Art. III. sec. 27) of subjects in regard to which the Legislature is prohibited, absolutely and without any qualification, from passing special laws. It would take too much space to summarize this list at length, though

it is hardly possible in any other way to give an adequate idea of the petty restrictions by which the Legislature is bound and obstructed, hand and foot. But some conception may be gained from the following characteristic examples. In three or more of the four States special laws are absolutely forbidden,—

I. Regulating the practice in courts of justice; 1 providing for change of venue in civil or criminal causes; limiting civil or criminal actions; regulating the punishment of crimes, or remitting fines; or drawing grand or petit juries.

2. Exempting property from taxation; or refunding money legally paid into the State Treasury.2

3. Restoring to citizenship persons convicted of infamous crimes; removing the disability of infancy; providing for the adoption or legitimation of children; changing the law of descent, succession, or distribution; granting divorces; changing the names of persons; 3 giving effect to invalid deeds or wills; or any legislation in regard to the estates of deceased persons, minors, or cestuis que trustent.

4. Regulating the rate of interest on money, or authorizing the creation, extension, or impairment of liens.

Б

5. Granting the right to lay railroad tracks, or providing for the support of any private school.

6. Laying out or vacating highways, or licensing ferries, bridges, or toll-roads.6

7. Changing the emoluments of any public officer."

1 Or changing the rules of evidence in any trial (Wyoming).

2 So, also, in regard to releasing the indebtedness or liability of any person or corporation, or extending the time for the collection of taxes (Idaho and Wyoming); or legalizing, as against the State, the invalid act of any officer (Idaho).

3 Or of places either (Idaho and Wyoming).

4 Or legalizing, except as against the State, the invalid act of any officer, etc. (Kentucky).

5 So, also, granting lands under the control of the State to any person or corporation, or conferring power to exercise the right of eminent domain (Mississippi); granting or amending any charter (Kentucky and Idaho); granting charters to banks, insurance companies, or loan and trust companies (Wyoming).

• Similarly, in Kentucky, special laws are forbidden declaring streams navigable, authorizing the construction of booms or dams, or the removal of obstructions, or providing for the protection of game and fish, or regulating fencing and the running at large of stock.

'The following, though occurring in less than three of the constitutions, are amusing or interesting enough to be worth notice. In Kentucky the Legislature cannot apply "local option to a special place or pass special laws to regulate "labor, trade, mining, or manufacturing." Changing the boundaries of wards is a forbidden subject

Even rules of procedure for the Legislature are drawn into these constitutions; how minutely in one case may be seen from the following summary of the provisions in Mississippi. The other States are not carried by distrust of their representatives to quite the same extreme. It is provided in Mississippi (sec. 55) that the yeas and nays shall be entered on the journal on the final passage of every bill. (Sec. 59) Every bill shall be read in full immediately before the vote on its final passage, and having passed both Houses, shall be signed by the President of the Senate and the Speaker in open session. Before either shall sign any bill, he shall give notice thereof, suspend all business, have the bill read by its title, and on the demand of any member, have it read in full, and all such proceedings shall be entered on the journal.1 (Sec. 60) No bill shall be so amended in its passage through either House as to change its original purpose; 2 and no law shall be passed except by bill.8 (Sec. 61) No law shall be revived or amended by reference to its title only, but shall be inserted at length. (Sec. 62) No amendments to bills by one House shall be concurred in by the other, except by a vote of a majority thereof, taken by yeas and nays, with the names of those voting for and against, recorded upon the journals. Reports of committees of conference shall be adopted in each House in the same way. (Sec. 63) No appropriation bill shall be passed by the Legislature which does not fix definitely the maximum sum thereby authorized to be drawn from the treasury. (See 64) No appropriation bill shall continue in force more than six months after the meeting of the Legislature at its next regular session; nor shall such bill be passed except by the votes of a majority of all the members elected to each House.5 (Sec. 65) All votes on the final passage of any measure shall be subject to reconsideration for at least one whole legislative day, and no motion to reconsider such vote shall be disposed of adversely on the day on which the

in Kentucky and Idaho; changing or locating a county seat in Kentucky; "regulating township or county affairs," in Idaho and Wyoming; incorporating cities, towns, or vil. lages, or amending their charters, in Wyoming; and in Mississippi, exempting any person from jury, road, or other civil duty!

1 Compare Idaho, Art, III. sec. 15; Wyoming, Art. III. secs. 25, 28, 41; and Mississippi, sec. 72.

So Wyoming, Art. III. sec. 20.

So Idaho, Art. III. sec. 15, and Wyoming, Art. III. sec. 20.

So Kentucky, sec 53; Idaho, Art. III. sec. 18; and Wyoming, Art. III. sec. 26. The latter provision is also found in Kentucky, sec. 48.

original vote was taken, except on the last day of the session. (Sec. 66) No law granting a donation or gratuity in favor of any person or object shall be enacted, except by the concurrence of twothirds of each branch of the Legislature; nor, by any vote, for a sectarian purpose or use. (Sec. 67) No new bill shall be introduced into either House during the last three days of the session.1 (Sec. 68) No appropriation and revenue bills shall be passed during the last five days of the session. (Sec. 69) General appropriation bills shall contain only appropriations to defray the ordinary expenses of the executive, legislative, and judicial departments, to pay interest on State bonds, and to support common schools. All other appropriations shall be by separate bills, each embracing but one subject. Legislation shall not be engrafted on appropriation bills, but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid. (Sec. 70) No revenue bill nor any bill assessing property for taxation shall become a law except by a vote of at least three-fifths of the members of each House present and voting. (Sec. 71) Every bill shall have a title which ought to indicate clearly the subject-matter of the proposed legislation. Each committee to which a bill may be referred shall express in writing its judgment of the sufficiency of the title of the bill, and this too whether the recommendation be that the bill do pass, or do not pass. (Sec. 73) No bill shall become a law until it shall have been referred to a committee of each House, and returned therefrom with a recommendation in writing.3

Idaho (Art. III. sec. 12) even goes so far as to direct that the business of each House and of the committee of the whole shall be transacted openly, and not in secret session. The provision in Wyoming (Art. III. sec. 14) to the same effect is not so imperative, for it makes an exception if "the business is such as requires

1 In Wyoming, five days; with an exception in favor of bills for the expenses of the government, and a provision that this rule may be suspended by unanimous consent.

2 In Kentucky, sec. 53, and Idaho, Art. III. sec. 60, no law shall relate to more than one subject, which shall be expressed in the title, with the addition in the latter State that if this provision be not complied with, only so much of any Act as shall not be embraced in the title shall be void. So in Wyoming, Art. III. sec. 24; but general appropriation bills and bills for the codification and general revision of the laws are exempt from the necessity of stating the subject in the title.

In Kentucky, sec. 48, it is provided that no bill shall be considered for final passage unless reported by a committee and printed for the use of the members. So in Wyoming, Art. III. sec. 23. But in Kentucky if a committee fails to report a bill within a reasonable time, any member may call it up, and by consent it may be considered as if reported.