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CHAPTER II

THE ORGANIZATION OF THE HOUSES

The first step in the organization of a new legislature is of necessity the preparation of a temporary roll. If the certificates of the members-elect are all regular and uncontested this is a mere clerical duty. But if the majority of one party is small and doubtful, and conflicting election certificates have been presented, the power to draw up the roll is open to abuse, since it is highly desirable to either party to construct an organization which will favor its interests in the contests which are to follow.

THE MAKE-UP OF THE ROLL

Contrary to the practice of Congress, the legislatures of many states have taken the make-up of the roll out of the hands of the clerk of the preceding session and placed the duty upon the secretary of state, who certifies to the correctness of the list of names which he presents. He is presumed to be a more responsible officer than the clerk and any member named on the roll is entitled to his seat until action is taken unseating him.1

In other states the temporary clerk calls the roll of counties and members-elect present their certificates as their districts are called. Or the duty may be left with the clerk of the last session, with the specification that only members holding proper election certificates shall be placed on the roll.3 In Colorado and Nebraska permanent organization is delayed until the report of a committee on credentials4 but this does not destroy the advantage gained by the possession of a majority on the temporary roll or the importance

1 Clerk's Manual, New York Assembly (1916), p. 509, and Assembly Journal, 1914, p. 30 et seq. Also Legislative Decision No. 25, Michigan Manual (1915), p. 645. Members are, with few exceptions, sworn according to this temporary roll. See journals of any state.

2 Fixed by statute in California, Indiana, Minnesota, Montana, Ohio and Texas.

* Fixed by statute in Arizona, Iowa, Maryland, Nebraska and North Dakota. ♦ Colorado, Annotated Statutes ¶2897; Nebraska, Revised Statutes (1913), ¶3742-3743, and the Blue Book (1915), p. 470.

of the clerk's power in making up the same.

With these two

exceptions, persons appearing on the roll upon which the house is organized take the oath and participate in the permanent organization, and remain members until removed by the house. In New Hampshire, however, no name is to be entered for any district from which conflicting certificates of election have been returned.5

The method of making up the roll is usually prescribed by statute. In Illinois, however, it has been left to custom, and confusion sometimes results. At the organization of the 1915 session the president of the Senate of that state refused to admit the roll prepared by the secretary of state, which would have deprived his party of control, on the ground that no statute made this the official roll. The parties were evenly matched, and, as no roll could be agreed upon, permanent organization was delayed for more than six weeks, or until a special committee had completed a recount in the doubtful districts."

CONTESTED ELECTIONS

One of the first questions to engage the attention of the houses is the disposition of contested elections. As shown in the chapter above, this right is exclusive with each house and perhaps no power has led to graver abuses. In no state are such contests dealt with in a systematic way, nor have party organizations hesitated to strengthen their position by high-handed practices in unseating members. Where no immediate decision is necessary to party advantage the contest may drag on for weeks. In 1915 the Assembly Committee on Privileges and Elections in New York spent in two election cases $9,075.98 for hotel expenses alone. In 1914 a contested election before the same body was not decided until the day of adjournment, and the duly elected representative served but part of one day. Thus two men drew full salaries for the same office. 8

Inasmuch as control by the legislature of the election of its members is no longer necessary as a defense against executive encroachment, England has outgrown the conviction that the power

'Public Statutes, Chap. 4, Sec. 6.

• Illinois Senate Debates (1915), pp. 4, 5, et passim.

' Itemized account approved by the speaker, New York Times, Jan. 26, 1916. Report of the Citizens' Union Committee on Legislation for 1914, p. 4.

of decision in contested cases is an inviolable parliamentary privilege, and since 1868 such cases have been referred to the courts." But the American courts will not permit our legislatures to part with this jurisdiction. The constitution of Pennsylvania directs that the trial of contested elections of members of the General Assembly shall be by courts of law 10 and in conformity to this the legislature designated the courts and the manner of holding trials. The Supreme Court held, however, that by this the legislature was nót deprived of the power, granted in another section of the constitution, of judging of the election of its own members. The purpose of the constitution and the statute was merely to provide a method of procuring and presenting to the respective houses evidence necessary for an intelligent decision. Final judgment must rest with the house.11

More recently in two important cases the power of the courts to render even advisory opinions has been denied. The Corrupt Practices Acts of Massachusetts and of Montana provided that cases of contested elections of members of the legislature should be heard by the courts upon the presentation of proper petitions. The judge was to return the findings to the secretary of state to be transmitted to the house for which the contestant was a candidate, and decrees were to be entered in favor of the one shown to be lawfully elected. But in reviewing these provisions the highest courts of both states held that if it was their purpose to give final jurisdiction to the courts, they were void as invading an exclusive prerogative of which the legislature could not divest itself. Moreover, if the decree of the court was to be advisory merely, a non-judicial duty was imposed on the courts. They were made nothing other than the agent of the legislature, and their opinion at best could be only tentative. In accordance with the principle of the separation of the powers of government such use cannot be made of the courts.12

• See Parliamentary Debates, July 6, 1906, where a danger is disclosed in the English system. A strong element in Commons wished to drive a justice to resign because of his conduct in an election case. The Prime Minister's indictment of the old method prior to 1868 could be applied word for word to present conditions in our state legislatures.

10 Art. III, Sec. 17.

11 In re Contested Election of McNeill, 111 Pa. St. 235.

12 Dinan v. Swig, 112 N. E. 91 (Mass. 1916); State v. District Court, 50 Mont. 134 (1914).

Thus it is seen that escape from the almost farcical proceedings. before election committees by following English example is rendered impossible through our unique doctrine of the relation of the departments of government.

SELECTION OF EMPLOYES

The selection of legislative employes is the third important step in the business of organization. While the needs of different legislatures vary it is generally admitted that, were the selections made on the basis of skill and training, fewer men would do the work more efficiently. The general report from the states is that clerks and employes are chosen solely on grounds of political expediency. Indiana follows the happy plan of making appointments for half the session, employing a new corps for the last thirty days. The following indictment by the Governor of Idaho could apply quite generally:

There has been a general increase in the expenses of succeeding legislative sessions out of proportion to the increase in membership. Previous legislatures have placed upon the pay rolls many more employes than were strictly necessary in the transaction of their legitimate business. Much higher salaries have been paid than would have been necessary to secure similar services by any corporation or individual.13

Two years later Governor Clark of Iowa arraigned the legislature in more severe language. Much of the money, he asserted, which was expended for legislative "help" was "pure, unadulterated graft." A dozen doorkeepers were employed where none was needed and clerks sat around the chambers in luxurious ease. The system was reprehensible and indefensible, and he called upon the General Assembly to reform.14 In the Missouri House it is the custom to allow each majority member to name one clerk. Thus the number of employes bears a strict ratio to the size of the party majority.15 In Indiana it has been estimated that one-third of the employes could do the work.16

13 Message to the Twelfth Legislature (1913).

14 Biennial Message of the Governor (Iowa), 1915.

15 Kansas City Times, January 9, 1913. At this session the Democratic majority was the largest in history and approximately 120 clerks were engaged. 16 Statement of Legislative Reference Bureau in reply to questionnaire of Nebraska Legislative Reference Bureau, 1913.

Wisconsin has solved the problem of legislative help by adopting the civil service principle under the direction of the chief clerk and the sergeant-at-arms of each house, who make the selections. from an eligible list furnished by the civil service commission of the state." The number of employes has likewise been reduced to the minimum necessary to carry on the work with maximum efficiency.18

The officers and employes may be chosen by the house, as is done in Ohio and Pennsylvania,19 but it is more usual for the house to elect only the more important officers and to delegate to the speaker or the clerk or the sergeant-at-arms the selection of a host of minor officials.20 When the power of appointment to desirable positions with nominal duties is lodged with the speaker his position of leadership is strengthened. In Massachusetts the sergeant-atarms, who is an officer of both houses and appoints numerous minor officials, possesses a great deal of patronage and is a powerful man.21 Sometimes the selection of the rank and file of employes is entrusted to a committee, not infrequently referred to as the "plunder committee" whose nominations are accepted by the house.22

Where the personnel of members changes as rapidly as in the state legislatures the securing of expert help is of prime importance. An experienced clerk and a skilled assistant may be instrumental in bringing system and order into an otherwise chaotic body of inexperienced legislators. To this end permanency of tenure and a graduated order of promotions are absolutely essential. Such a simple reform would result speedily in an improved legislative product, whereas the prevailing situation makes one or two overworked individuals responsible for the legislative routine while a great number of other employes bask in idleness.

It may be noted here that statutes regulating the manner of organization or method of selection of employes have no binding power, should the house choose to ignore them; and the point of order, that the house is proceeding contrary to law, will not 17 Wisconsin Statutes, Chap. X, Sec. 111g, and House Rule 9, and Senate Rule 93.

18 Statement from Legislative Reference Library.

19 Of course the nominees are selected by a "slate committee."

20 For example, New York and Massachusetts.

21 Frothingham, "A Brief History of the Constitution and Government of Massachusetts," p. 97.

22 For example, Indiana H. J. 1915, p. 73; Kansas and Washington also.

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