Special Legislation

LOCAL or private bills are the weeds in our legislative garden.¹ They consume time, they sap energy, they discourage talent, they conceal iniquities, they make law a byword, they transform legislatures into tribunals of adjudication and courts into organs of legislation. For a legislature is created primarily to make laws. All its energies should be devoted to this important task of statecraft. But our legislative organs have become diseased because we have required of them the performing of abnormal functions. Administration and adjudication are not proper functions for an organ of legislation, and our unfortunate habit of carrying all our local and private ailments to the state capitol, to have the virtuous adhesive of a special law applied, has transformed our law-making bodies into quack commissions with mongrel duties.

In the United States we pass upwards of fifteen thousand laws a year; of these over sixty per cent are private or local measures. And what is a local or private bill ? It is a measure that deals with local or private interests only. It is in its nature an exception to the general rule of law. In truth, a special law is a law only in that its passage has conformed to the usages and formulæ of legislatures. In substance it is not a law, but a privilege. The Romans recognized the distinction between private bills and laws. To them, special laws were privilegia or constitutionis privilegia. In England they used to say when a public bill was passed: Le roi le veult, — it is the king’s wish; and of a private measure: Soit fait comme il est désiré, — let it be granted as prayed for.

Here is the gist of the matter: a public law is a measure that affects the welfare of the state as a unit; a private law is one that provides an exception to the public rule. The one is an answer to a public need, the other an answer to a private prayer. When it acts upon a public bill, a legislature legislates; when it acts upon a private bill, it adjudicates. It passes from the function of a law-maker to that of a judge. It is transformed from a tribune of the people into a justice shop for the seeker after special privilege. This metamorphosis is accomplished through the efforts of the local members from the district or the home of the petitioner after legislative favors. For legislative comity magnifies the wishes of the individual members into greatness. Whatever may be the theory of the law, the revelation of the practice is that providing special legislation is not a fit task for a state legislature.

Our courts have sustained this deplorable practice, and have built up a theory of legislative omnipotence. For instance, our municipal corporations are declared to be the governmental agents of the state, and agents with closely defined powers. So hidebound has this theory become that even the stupendous growth of our great centres of industry and population has not been able to burst it in sunder. Thus it follows that all localities, cities, counties, and townships, as well as all individuals, are to turn their gaze toward the state capitol as their Mecca, and pray for the privilege of living and thriving.

In order to give ear to these thousand calls, the legislatures long ago found it necessary to resort to a partial division of labor. They subdivided themselves into numerous committees, assigning to each a specific task. So that to-day a private bill is forthwith placed in the care of its appropriate committee. However, the committees, the “eyes and ears, the hands and feet” of a legislative assembly, have long since ceased to be adequate to the demands made upon them, and an additional organ of legislation has been developed, — the lobby. This third organ has no official relation, no legitimate connection, with the legislature. It is the product of necessity. The lobby not only consists of special pleaders specially paid, but is composed of experts, who have technical knowledge of the needs or the conditions that called forth the bills they champion. The function of the lobby is a perfectly legitimate one. Practically the only experts in legislation are found in its ever-changing ranks. The methods of the lobby, and the objects they often seek to attain, are not so welcome to our praise.

Our legislatures have become largely bodies of adjudication over private measures. They have learned to do their tasks through committees, aided by such experts as the lobby may contain. In actual practice, special legislation takes up the most time and receives the greatest attention.

Have we not arrived at that period of experience when we should relieve the legislature of this task of sitting as a court over private or local privileges ? Should we not devise some means to meet the legitimate call for special acts ?

The evil has long been acknowledged, and several attempts have been made to eradicate it. At first it was thought that by lessening the number of sessions of the legislature the amount of legislation would correspondingly be lessened. This was a heroic cure,like the “blister, bleed, and calomel” formulæ of the earlier physicians. It is like a baby, shutting its eyes and thinking no one can see it.

A second resort was to the state constitutions. Our faith in constitutions is both sublime and ridiculous. A constitution cannot take away human needs, nor can it subvert the laws of nature. The experience of New York is instructive. Under the earliest constitution the abuse of private legislation grew to maturity.

The constitution of 1822 provided that the assent of two thirds of the members elected to each branch of the legislature “shall be requisite to every bill appropriating public monies or property for local or private purposes.” The clause failed in its purpose.

In 1846 it was revised: “No private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title.” While this did away with venal “omnibus” measures, yet it was practically unavailing in checking the flood of private bills.

In 1867 a constitutional convention met. A clause was advocated defining the fields upon which the legislature was forbidden to trespass. The author of the provision said that the governor of the state had signed nearly one thousand bills passed by the Legislature of 1867, only two hundred and thirty of which were of a public nature, and that many even of these were of a trivial character. The people rejected the entire constitution.

The evil grew so rapidly that a commission in 1872 prepared an amendment providing that the legislature should not pass a private or local bill for any of the following purposes: —

Changing the name of any person.

Laying out, opening, altering, working, or discontinuing roads, highways, or alleys, or draining swamps or other lowlands.

Locating or changing county-seats.

Providing for changes of venue in civil or criminal cases.

Incorporating villages.

Providing for election of members of boards of supervisors.

Selecting, drawing, summoning, or impaneling grand or petit jurors.

Regulating the rate of interest on money.

Opening and conducting elections, or designating places for voting.

Creating, increasing, or decreasing fees, percentages, or allowances of public officers during the term for which they are elected or appointed.

Granting to any corporation, association, or individual the right to lay down railroad tracks.

Granting to any private corporation, association, or individual any exclusive privilege, immunity, or franchise whatsoever.

Providing for building bridges and chartering companies for such purposes, except on the Hudson River below Waterford and East River, or over such waters as form part of the boundary of the state.

Thus the state deliberately deprived itself of the right to pass laws pertaining to thirteen different subjects.

But even so drastic a measure as this was evaded. The laws were made general in letter, but specific in spirit. Thus a law was passed applying to all localities having a waterfall over one hundred feet high. Only Niagara fulfilled this exacting requirement. The evasions were as numerous as they were tortuous and ridiculous.

Pennsylvania had a similar constitutional limitation, and it was successfully evaded. In Ohio the constitution now in force was written in 1851. It prohibits special legislation in the following words: “All laws of a general nature shall be of uniform operation throughout the state.” It also prohibits the passing of incorporation laws, except under general statutes. For half a century this clear prohibition was flagrantly evaded. Cities and towns were given special privileges and governments, under the phraseology of generalization. These evasions were sanctioned by the state courts until three years ago, when a sweeping return to strict construction pushed aside these palpable infringements on the constitution, and revoked every municipal charter and school law on the statute books. The many cities and towns of the state, with their varied needs, are now governed by a single law, inflexible and clumsy. But private and personal bills are still passed with reckless extravagance. The last legislature passed three hundred and twentyeight of them.

Twenty-six states have tried the constitutional route to prevent special legislation. All of these have landed in the realm of confusion and special privilege. In all of these states the courts are awakening to the real situation and are returning to a stricter adhesion to the letter and the spirit of the fundamental law, and forbidding the prostitution of the constitution to local needs. But this way is not the right way, because it assumes that local needs are uniform, and that private legislation is not based upon necessity. These assumptions are fallacious. There is good cause for some special legislation. You cannot make a general cloak that will fit all shoulders. Geographical conditions, economic and social needs, all dictate variation. The very decisions of the courts allowing the evasion of constitutional provisions are based upon expediency, due to sectional variation.

But the constitution should not be the repository for all manner of irrational prohibitions. The experiences of our states are lurid with failures, in their attempt to erect a constitutional barrier to needed legislation. A half century’s experience in trying to convert constitutions into statute books has shown the necessity of returning the constitution to its proper place, as fundamental law and not subsidiary law; the foundation of the law, not the rambling superstructure.

It is evident that there must be a readjustment of methods to conditions. The legitimate needs of local legislation must be adequately met, without encroaching upon the time and functions of the state legislature. A few makeshifts have been suggested.

An attempt was made in Albany in 1879 to formulate a plan for sifting out the private bills, requiring that all such measures be filed on the first day of the term, and if the taking of private property was involved, all persons concerned were to be previously notified. The governor should then appoint three examiners to see to it that all preliminaries had been complied with. The bills were then to be heard before legislative committees, sitting as courts, with the power of summoning and hearing witnesses and of imposing fines upon those who trifled with the privileges so granted. The plan was not approved. It was too advanced to commend itself to the judgment of the legislators.

Governor Hill, six years later, suggested a much more mild and modest method for saving the time of the assembly. In his annual message he said: “It is suggested that provision be made by law for the appointment of a competent person to act as counsel to the Legislature during its session, who shall receive honorable compensation, to be paid by the state, and whose duty shall be, at the request of any member, to prepare any measure desired to be introduced into either House; to give legal advice in reference to proposed legislation to the members and to the various committees, and to inspect the various bills before their final passage, in order to detect errors and imperfections, and to suggest the necessary amendments; and generally to act as the legal adviser of the Legislature. This duty cannot well be performed by the Attorney-General, who is the law officer of the state, for the reason that his department is already overcrowded with duties that fully engross his own time and that of his assistants.” Even this homeopathic pellet was too strong for the selfreliant assembly-men.

Many of the leading states have from time to time appointed standing commissions for codifying laws upon various subjects, and recommending amendments thereto. The most carefully framed laws in the books are those that have been skillfully prepared by such standing commissions. They are usually composed of eminent lawyers and men of experience and learning. Sometimes members of the legislature sit upon them, though that is unusual. If the legislature could choose a standing commission on local bills, such commission to hold sessions ad interim, and to have the power to investigate all local bills and report to the succeeding legislature, many of the private bills could easily be sifted.

The “Peoria Plan” of standing commissions, adopted by the General Session of the Presbyterian Church, admits laymembers to these committees, and it has been suggested that this rule might be wisely followed by legislatures, appointing experts to sit with a standing legislative commission. The principal objection to this plan is found in the changing nature of our state politics. The commission appointed by one legislature would hardly find favor in the eyes of its successor.

In the journey to legislative omnipotence our states have traveled far from the scene of local autonomy, of real selfgovernment. Now it is necessary for every local unit of government, every city and every village, every county and every town, to supplicate the assembly for the doing or the undoing of many necessary things. It is instructive to learn how far a people, so given to the worship of the fetich of self-government, can allow their little liberties, their neighborhood autonomies, to be centred and bound into the supreme authority of a legislature that is more foreign than domestic to the majority of their needs. Yet here we have arrived, after a hundred and fifty years of wandering, not at the goal of local government, but at the state capitol, whose arching dome is the symbol of democratic autocracy, of legislative omnipotence and representative tyranny. It is now necessary, in the majority of the states, for the neighborhood units to ask for permission to do the most trivial acts of necessity. A county ditch is magnified into an interstate canal, and a village waterworks plant into a grand system of irrigation. If our communities cannot get what they need by respectful petition, they must resort to force, the force of the lobby and its thousand subtle and sinister influences. But these groups, these units, these descendants of the tūn, must live and thrive even under most adverse circumstances. I believe in a rational return to the New England pattern, the town meeting. Local autonomy is the Anglo-Saxon ideal. We have got far away from it. The county and the municipality should be given the greatest possible freedom. This very liberty would be a check upon extravagance, and an impetus to clean administration, for no responsibility is more sobering than self-responsibility. The county and the city are proper units of neighborhood government. The vast structure of state autocracy which the courts have reared upon the theory that these units are agents of the mass, that one neighborhood is the agent of all the other neighborhoods in the state, is in need of remodeling. Fundamentally, the state must be supreme, but it should not, in its supremacy, stifle local initiative. We have fallen into the same error in regard to our views of the function of the commonwealth that we have fallen into in our views of the function of the constitution. We have made both the cloak of local abuse. The placing of these local units in their proper relation to the central government will at once absolve the legislature from the task of nearly all local legislation.

From the most progressive European countries we have yet to learn the science of administration. There are not half a dozen law schools in the United States where administrative law has found a place among the electives, and there are plenty of lawyers and publicists who do not even know what that term means. As our economic conditions approach those of Germany and France, we will be driven to adopt administrative machinery as an adjunct to our system of government. In truth we have already created a complex series of administrative organs. In 1901 alone over forty new boards were authorized in the states, representing all sorts of interests, and endowed with powers varying from the mere power of recommending, possessed by a state forestry commission, to the stringent authority of the board of health. These numerous boards are still discrete, neither well joined in details, nor well coördinated with the other departments of government. But administrative centralization is moving rapidly over the land. Its tendency is everywhere revealed to the student of politics. Every year the states are delegating more of the details of administration to newly created authorities, so that the rosters of some of our leading states are very long. This is not because we are socializing the government. Socialism, in the abstract, has little or nothing to do with this multiplying of state activities. It is because we are learning that the state cannot do all the things required of it, by means of a governor and his staff, a legislature, and the courts. The old orthodox trinity of powers is no longer adequate to the demands of a modern state. Administration must supplant a large share of the work of the executive, legislative, and judicial departments.

Herein lies the strongest hope for the overburdened legislature. The legislature cannot divest itself of the power of legislation, it cannot delegate its legislative authority. But it can impose upon other bodies the function of adjudication and administration. Congress has had some instructive experience, which points the true way out of this labyrinth of private bills. It has delegated to the Court of Claims adjudication upon all questions arising between claimants and the government. The successful suitor cannot indeed collect his judgment without an act of Congress appropriating the money, but Congress has been relieved of the tedious and irksome task of sitting as judge upon his rights.

So formerly it was the custom for Congress to distribute superannuated cannon, by special act, to the various towns in the Union whose patriotism prompted them to ask for these relics of the Great War. The beggars became so numerous, and therefore such a nuisance, that Congress in 1896 passed an act giving the Secretary of the Navy the power to distribute the cannon. These instances will illustrate how the legislature can relieve itself of a large share of private and local measures. It would be unreasonable to hope for a constitutional amendment to cover this point. Constitutions, especially the Federal Constitution, are amended only after great labor. But general laws can be passed authorizing courts of justice to hear causes that are now carried to the legislature, and authorizing the executive department and its administrative adjuncts to determine many details that are now overburdening the lawmakers. Neither the interests of the state nor the rights of the citizens would be placed in jeopardy by such a method of procedure.

As England provided our forefathers with the working model for our Constitution, her experience in trying to solve the problem of special legislation in Parliament will be very suggestive. The evils engendered by private and local bills were as aggravating as they are in our country. The committee system, substantially as we have it, was there fully developed. All private and local bills went to their respective committee rooms. The calendars were congested, the lobbies were jammed, the committees were driven to distraction, and most of the bills slipped through without scrutiny.

About twenty years ago a campaign against these conditions was begun. In 1888 a select committee of the two houses was appointed to investigate the condition of private legislation. Upon scrutiny it was found that the mere cost of putting these bills through was enormous. The paid lobbies, the expenditure of time and money of the persons directly interested, who were compelled to stay in London often throughout the greater part of the session to watch their bills, and the many other necessary contingent expenses of making the laws, were estimated to cost £750,000 a year, and over £40,000,000 in fifty years. Special legislation is an expensive luxury. This was only a secondary consideration, however. These bills were robbers of time and of talent, as well as of pounds. The committees were not qualified to judge of their fitness, and usually voted only haphazard judgments, relying on such expert testimony as the lobby or the patron might present. The dissipation of public energy on private measures weakened the morale of the Parliament and debilitated the public measures.

Sir John Mowbray, in giving testimony before the select committee appointed to investigate the subject, said, “I do not deny the competence of committees or the satisfaction which their decisions give; but I think there must be a change and that sooner or later Parliament will have to transfer its jurisdiction over private bills to some external tribunal because of the great pressure of business on all members.” Out of this investigation of the needs of Parliament a method of dealing with private and local bills was devised. The essence of the plan is that private and local bills are to be tried by a commission under general laws passed by Parliament and called “standing orders.”

There are two hearings before the bill goes to Parliament. The preliminary hearing is to determine whether the standing orders have been complied with. All bills must be deposited in the Private Bills Office sixty days in advance of the session. If a railway or canal project is fostered, five per cent of the estimated cost must be deposited, and if the right of eminent domain is involved, notice must have been given to all interested parties. For all bills, there must be a deposit to cover the expense of the preliminary examination. If there is hostility to the bill, the opponents must file their objections in due form. The “standing orders” must be followed in every detail. Laches is fatal to the success of the bill, for the endorsement “standing orders not complied with” at once throws the bill out. If it is successfully sustained in the preliminary hearing, its promoters must then make a further deposit of fifty pounds.

The bills are now classified by the Chairman of the Ways and Means Committee and Chairman of the Committee of Lords. Those concerning railways and canals go to the Board of Trade, the others to special committees. The final hearing of the bill before its proper committee is exhaustive. The trial committee is composed not alone of members of Parliament, but also of non-members who are experts and completely familiar with the technical questions involved. The trial committee prepares a calendar or docket like that of a court. Both promoters and antagonists are represented by counsel, both plaintiff and defendant are given careful hearing. The bill is taken up section by section and subjected to the severest examination. After such a sifting, Parliament rarely feels like rejecting the recommendations of the trial committee.

As nearly as I can learn, the plan has been fairly successful. It costs about one thousand dollars to promote a private bill through Parliament on this plan. This cost alone would prohibit its adoption, in toto, in the United States; although what is worth praying for should be worth paying for. The plan, however, is probably too undemocratic to commend itself to the American public.

The constantly growing inability of the state legislatures to attend conscientiously and wisely to the thousand exacting details of their tasks, the shifting complexion that politics casts over every assembly, and the shiftless manner in which laws are made, have led the people to distrust their law-makers. The people therefore are beginning to look for a way out of the trouble, and, as is usual, they take the matter into their own hands. They have tried the method of constitutional restrictions; that has failed; they are now attempting direct legislation. South Dakota in 1898 provided for this method; Utah in 1900 attempted it; Oregon submitted the proposition to its voters in 1902, and in 1903 Illinois and Nevada followed. The movement has but begun. That it will prove successful in America may well be doubted. But let us hope that it will lead into a realm of greater local autonomy, emancipating the people from the overlordship of a legislature, and emancipating the legislature from the fetters of little local wants.

For in America we must solve this problem of special legislation in our own way. The signs of the times indicate what that way will be. I believe there is a widespread demand for more local autonomy. The movement toward popular initiative and referendum is such an indication. Likewise the latest development in municipal autonomy, as provided for in Missouri, California, and Minnesota, where the largest cities have in large measure the power to make their own charters. It would be but a return to the Anglo-Saxon pattern to allow the rural township greater autonomy in purely local details. And where such freedom is incompatible with the constitution, it can be acquired through administrative powers, exercised under executive control.

This is the second tendency of the times, already very strongly revealed: that the executive department, through the agency of many administrative bodies, and acting under general laws, attend to all the trivial details of private legislation.

In these two movements, the expanding of local autonomy, and the creation of administrative authority under general laws, we may hope to see a forecast of the American solution of our problem of special legislation. Local laws would then be judged by the locality, and by administrative agents of the central government, and private bills would be passed upon by administrative and especially established courts, like our Court of Claims.

A long period of evolution and costly experience has led us thus far in this pathway, and it will be a long time before such a dual system can be perfected, for all the details must be wrought out with care, and always with that eternal vigilance which is ever the price of legislative liberty.