passed an act which directs the presiding officers of each house to certify to the presence of a constitutional quorum and passage by a constitutional majority.54 No bill was to be deemed passed unless so certified, and the certificate was to be conclusive evidence of the fact of passage. Yet this law has been declared void. If the journals show a constitutional quorum present and the necessary affirmative votes, the act is good,55 and a defective certificate can be supplemented by the journals.56 Here again the legislature is forbidden the right to bind itself in matters of form and the conclusion must be that the success of measures such as we have been discussing must be judged by their moral effect upon the legislature's conduct of business, and not by their legal force. The experience of those states which try to keep their codes complete illustrates the futility of attempts to control legislative practice, as it were from the outside. For example the Political Code of California (Sec. 249-250) requires that each bill proposing an addition to the general laws shall be codified by the judiciary committee of one of the houses, but although this codification is omitted the validity of such acts cannot be questioned.57 LEGISLATIVE EMPLOYES Attempts to regulate by statute the number and compensation of legislative employes have likewise involved the power of the separate houses to manage their own affairs in their own way, without being amenable to any other department of government. The multiplication of legislative sinecures has been a common method of rewarding the faithful, and many states, profiting by experience, have set forth by statute the specific number of employes allowed each house and their compensation. Clearly, however, the observance of such laws rests with the houses of the legislature and varies widely in different states. It can be truthfully said that they are passed largely for moral effect. In Massachusetts the provisions 54 Now known as Chap. 37, ¶ 40, Laws of 1909. 56 People v. Supervisors of Chenango, 8 N. Y. 317. 57 Statement of N. W. Thompson, President pro tem of the California Senate, 41st Session, in Legislative Manual for California, 1915. Mr. Thompson also suggests that laws of this nature are contrary to the provision of the constitution which empowers each house to determine the rules of its own proceedings. of the statutes are followed scrupulously in the employment and payment of legislative helpers.58 Vermont reports that considerable was accomplished by embodying such provisions in the laws rather than leaving them to the independent action of the two houses, and that they have failed of observance only in unimportant details.59 On the other hand, it is common elsewhere for the legislature to disregard such regulations on the ground that they infringe upon the legislative prerogative.60 The method prevailing of old in New Jersey was for each house to employ a great number of unnecessary aids and to take the chance that their compensation would be provided for in the bill which passed at the close of the session to meet unexpected expenses. Since the passage of the act defining the number and compensation of employes this abuse has to a great extent disappeared, although the scheme has not been entirely successful.61 Indiana's recent experience is an extreme illustration of the situation. By an act of 1895 the number and pay of the legislature employes were strictly limited, but for several years the allowance for employes had been increasing in both houses contrary to the statute, until finally in the session of 1913 the amount spent for help exceeded all previous records.62 Following this session 58 Statement of Mr. Henry D. Coolidge, Clerk of Massachusetts Senate. 59 Mr. John M. Avery, Legislative Reference Librarian, Vermont. 60 Miss Ida M. Anding, Legislative Reference Librarian, South Dakota, states that subsequent legislatures have disregarded for the above reason an act regulating employes. In Illinois both houses have violated similar provisions (Mr. Finley F. Bell, Legislative Reference Librarian). Because the number of employes at the 1913 session had been more than double that provided by statute, the Progressive element of the 1915 House tried to get the committee on contingent expenses on record as to how many would be added in excess of the statute during the session upon which they were entering (Illinois House Debates, 1915, p. 149). The attempt failed and the usual conditions prevailed. In New York, in order to bring the law into conformance with practice, the legislative statute was amended in 1915 to permit either house to increase at will the number of its employes (Laws of 1915, c. 483). In the majority of states excess employes are paid from the contingent fund. 61 Mr. John P. Dullard, New Jersey State Librarian. 62 In 1913, although the statute allowed forty-five employes in House and Senate, the actual number was approximately one hundred and fifty. Between 1907 and 1913 the sum expended for "help" in the Senate increased from $36,668 to $61,572. The allowance for doorkeepers increased more than seven thousand dollars, and the added employes performed only nominal duties (See Senate several members and officers of both houses were indicted and tried in criminal court for making out fraudulent warrants to pay men employed contrary to law. The question considered by the court was whether the Senate and House acting separately had the right to employ assistants in excess of the numbers named in the act.63 The court did not accept the contention that the act of 1895 was binding on the two houses until repealed. The power of each house to fix the number of employes was not conferred by the General Assembly, but came in the nature of an inherent right which the General Assembly acting as a law-making body cannot curtail or limit. Therefore the act was never binding. This opinion represents fairly well the usual attitude of legislators toward statutes which seek to control legislative employes. Freedom to determine the number and allowance of employes is a · prerogative, similar to the power of judging of the qualifications of members or of punishing for contempt, and is indispensable.64 In accord with this doctrine, a joint committee of the Montana Legislature appointed to make provision for the payment of employes recently reported that the section of the constitution65 which requires the legislature to provide by law the number and compensation of employes is fulfilled if the legislature leaves by law to each house the right to designate the number of assistants as the times demand.6 In opposition to the above, is the view that the right to employ clerks and assistants at will is not inherent, but can be restricted by law. The legislature, although the law-making power, is itself regulated and controled by law. Therefore, if employes are desired in addition to those specified by statutes, the law must be so Journals, 1907 and 1913). As was pointed out at the time, there had been no increase in the size of the floors to sweep or in the number of spittoons to clean. The session of 1915 managed to function with a material reduction in the number of employes. 63 From the opinion of the trial judge, rendered in the Marion County Criminal Court, Dec. 17, 1914. 64 Supported in Cliff v. Parsons, 90 Iowa 665; in Cook v. Auditor-General, 129 Mich. 48, the court specifically refused to take the position that payments to legislative employes made by resolution and properly endorsed were illegal although contrary to a clearly expressed statute. 65 Sec. 28, Art. V. 66 Montana House Journal, 1915, p. 65. framed or amended as to authorize their employment.67 Such a law, it is urged, is binding on the houses to the same extent as on a private individual, and can be repealed or disregarded only by the concurrent action of the two houses and the approval of the governor.68 Contrary to the action of Montana, the legislature of Colorado fulfilled the constitutional requirement that no payments should be made to employes except those appointed in pursuance to law, by specifying by statute the number and rate of compensation. The Supreme Court has held that, in view of this, the houses cannot by separate resolution fix the compensation of employes at a rate higher than that allowed by existing law. The constitutional prescription is a mandate to the legislature to fix it by law, since it is a provision essential to the protection of public rights, and when such a law has been enacted the legislature cannot ignore it.69 The number of times the question of the right of the legislature to employ clerks and assistants has been considered by the courts is small, and it is not possible to cite precedent that is conclusive, yet the view that the legislature in this connection is at all times a law unto itself is more in keeping with the decisions of the courts concerning statutes seeking to control other phases of legislative procedure. Granted that the legislature has the right under the constitution to employ assistance that it may discharge its business most expeditiously, it is difficult to see how it can be restricted by self-imposed law. Any other view extends the control of the executive, whose approval would be necessary to a removal of the restriction, beyond mere approval or disapproval of the legislative product to a share in the internal management of the business of the houses, a result certainly never anticipated by the framers of our state constitutions.70 67 State v. Wallichs, 14 Neb. 439. Yet the Legislature has not felt itself bound, and in a number of cases has exceeded the statute limit. (Statement of Mr. A. E. Sheldon, Director Nebraska Legislative Reference Bureau.) 68 State v. Auditor-General, 61 Mo. 229. See also Walker v. Coulter, 113 Ky. 814, although here the constitution strictly specifies the number of employes and the point under discussion was not necessary to the decision. 69 People v. Spruance, 8 Colo. 307. 70 The legislature's independence in matters relating to employes is somewhat restricted by constitutional prohibitions upon increases of compensation after the service is rendered. See Robinson v. Dunn, 77 Cal. 473; State v. Williams, 34 Ohio St. 218; State v. Chatam, 21 Wash. 437. Recently the Illinois Supreme Court refused to allow an appropriation for In the light of the foregoing the following generalizations may be made. If the legislature has the power to act under the constitution (the power may be inherent in the very nature of the legislative function), it possesses full competence to decide what methods of procedure it will employ. The courts will review the right to exercise the power but will leave the application of constitutional directions concerning procedure in the hands of the legislatures themselves. If the legislative bodies are determined to evade checks placed in the fundamental law, the evasion must appear affirmatively on the journals. If legislatures are remiss in interpreting constitutional provisions the remedy "which the constitution provides by the opportunity for frequent renewals of the legislative bodies is far more efficacious than any which can be afforded by the jury." In the last analysis we must look to the legislature itself to give living content to any rules, constitutional or otherwise. This does not signify, however, that constitutional requirements concerning procedure are without effect. Usually they are respected to the letter even if the spirit be not always fulfilled, and where the intention of the framers is not accomplished there is ordinarily a good practical reason for the failure to do so. telephone fees of members or for the mileage of members. It denied that these expenses were incidental to the discharge of the legislature's business. (Fergus v. Russell, 270 Ill. 304 and 626.) Nevertheless it may be argued with reason that the telephone is as necessary as are pages and stenographers. |