rolled bill be signed by the presiding officers of both houses, twentytwo prescribing that it be done in the presence of the assembled body." An attempt was thus made to provide an additional guarantee against the signing of bills irregularly passed. A situation which arose recently in Indiana raised the question as to the responsibility of these officers. Two bills which had never passed the legislature were signed by the presiding officers and later by the governor. The grand jury sitting to investigate the responsibility for the affair reported that the speaker of the House and the president of the Senate, who had wrongfully signed the measures, were in no way liable.72 Upon the question whether the enrolled bill controls the engrossed bill in case of discrepancy between them, the courts have not been in agreement; although the attitude consistent with the widely accepted principle that the enrolled bill is final, would favor making it the conclusive copy.73 71 Index-Digest, State Constitutions, p. 846. A similar provision failed in the Constitutional Convention of New York in 1894 because it was feared that the presiding officers would be invested with the veto power. (Record, vol. I, pp. 906 et seq.) The prevailing opinion of the courts has been, however, that failure to sign in no way invalidates the act, as the only function of the signatures is to furnish evidence in the absence of which recourse may be had to the journals. Commissioners v. Higginbotham, 17 Kan. 62; Taylor v. Wilson, 17 Neb. 88; But see Burritt v. Com'rs, 120 Ill. 322; and Douglas v. Bank, 1 Mo. 24; also State v. Kiesewetter, 45 Ohio St. 254, where the provision was held mandatory. 72 From the text of the report of the grand jury to the Governor. Indianapolis News, Dec. 5, 1914. 73 So held in Division of Howard County, 15 Kan. 194. But see contra Berry v. Railroad, 41 Md. 446; Brady v. West, 50 Miss. 68. Also Moog v. Randolph, 77 Ala. 597. Where material divergence exists between the engrossed measure and the enrolled act the bill approved by the governor is not the one which passed the houses and therefore never became law. In State v. Swan, 7 Wyo. 166, one section of the act was void as being enrolled by mistake. CHAPTER VI LEGISLATIVE LEADERSHIP We must finally examine the preparation of a daily legislative program, to discover how far the houses follow a fixed arrangement of business. The question of the control of the time of the house and the extent to which individual members have surrendered themselves to the guidance of leaders is involved. The matter of controlling the limits of debate necessitates no complex system of rules since a minority anxious to discuss measures is absent. With the exception of the rush days at the close the houses do not surrender control of their time to any special group. The legislatures of Georgia and Washington are perhaps exceptions in that from the first of the session the calendar of the latter is under the jurisdiction of the rules committee, while in the former all motions to interrupt the regular order must be referred to the same committee.1 In the Georgia Senate no request for unanimous consent to suspend this rule will be heard.2 THE CALENDAR The daily program takes the form of a calendar upon which measures appear in the order in which they are to be taken up. Appropriation bills sometimes have preference by being placed at the head of the list. Usually the calendar is printed daily, although sometimes it is merely posted as a bulletin, as in Nebraska, Nevada and South Dakota. In some of the more backward states as Arkansas, Indiana, Montana and North Carolina, the clerk merely keeps a list of measures in their regular order. The evils of such a lax method are twofold. Great power over the calendar is put in the hands of the speaker inasmuch as with him rests the selection of bills to be handed down for the consideration of the house. He is consequently enabled to reserve measures until an opportune time, either favorable or unfavorable to their 1 Washington House Rule 2; Georgia House Rule 42, Senate Rule 137. 2 Senate Rule 40. 3 Georgia, even over special orders; Kansas, Mississippi under the constitution, and Pennsylvania. passage, without the members being much the wiser. In the second place the members are ignorant of the time at which bills are to come up. The absolute right of members to be informed in advance as to what business is to come up really constitutes the essential reason for the daily printed calendar. As a select committee of the Commons declared in 1861, certainty from day to day of the business to be transacted is the great aim of procedural reform. Each member, furthermore, should be able to rely upon the carrying out of the program laid down. Nevertheless, slight investigation will reveal that our state legislatures have attained this ideal very imperfectly. Although as a rule, matters not upon the calendar are denied consideration, a few states, however, reporting to the contrary that business not upon the calendar is often taken up,5 the value of the calendar as a program of the day's activities is materially lowered by the general custom of admitting measures to consideration out of their regular order. The practice of granting leave to take up measures ahead of their turn obtains generally in states in which the calendar is allowed to become overcrowded. If steering committees are not employed, calendar rules are practically disregarded the last few days of the session. For example, in one day, selected at random about two weeks from the end, the Illinois House by unanimous consent suspended the regular order thirtytwo times, permission to suspend being withheld but twice. The force of the calendar is also weakened by "passing" a measure when it comes up in its regular order. If such practice prevails, there can be no certainty that a measure will be acted upon when reached. In many legislatures a member to secure consideration for a bill must call it up at the debate stage, but if he thinks the time inopportune he neglects to do so and another than the sponsor will not usually request its consideration. By the rules of Pennsylvania a bill may be passed for two weeks before being dropped from the calendar. Pennsylvania also keeps a postponed calendar of bills on third reading on which a measure goes at the 4 Report of Select Committee of the Commons on Business of the House, 1861, pp. iii-xii. Cited by Redlich, "Procedure of House of Commons,” vol. I, p. 98. 5 Alabama, Arizona, Minnesota, Nebraska and New Jersey. Oklahoma enforces the calendar strictly but reserves some time just after convening and before adjourning for consideration of matters not on the calendar. 6 House Rule 35. request of the sponsor, who is thus given a chance to marshal his forces and to seize a more promising moment later to put his measure to vote. Members avail themselves of this privilege frequently. Missouri possesses the same device in an "informal" calendar. In those states in which custom permits a measure on the calendar to come up automatically in its turn without the necessity of a member calling it up for consideration, it is usual to "pass" a measure if there is a request to do so, although in some cases it may lose its favorable position on the calendar. Ohio practice, however, permits a bill "passed" on the calendar by a majority vote to be placed at the head of the list for the day following. A blanket motion may extend this favor to over one hundred measures at a time and thus disturb the order most effectually. A bill "passed" on the calendar once in Connecticut or twice in California is sent to the foot unless saved by a two-thirds vote.' In accordance with the principle that a member should know with a great degree of certainty what measures are to come up in the day's business, a simple majority should not be able to violate the regular order without due notice. It has sometimes been urged by those who had in mind meritorious legislation which failed because the majority could not act immediately as they desired, that the majority should at all times be master of the time of the house by being able to change the order of business at any time.10 But the minority also deserves protection from the snap tactics of the majority, and to this end notice of all motions to suspend the calendar should be imperative. Due notice having been served in advance, a simple majority would be sufficient to carry the motion. This is the practice in New York." The rule prevailing in some states, making necessary a two-thirds or three-fourths vote to suspend the order, gives undue power to the minority, who are entitled to no such consideration if they have been properly notified. 7 House Rule 68. Since the session of 1913 measures not called up from this calendar within five days are dropped. 8 Joint Rule 21 and House Journal 1915, p. 1117. • Connecticut House Rule 9, Senate 22; California Assembly Rule 14, Senate Rule 40. 10 Urged by Illinois Voters' League (Bulletin, Nov. 20, 1914) and adopted in Illinois in 1915. The majority in the lower house must be absolute. Haines, “Minnesota Legislature of 1909," recommends the same. 11 Senate Rule 44, Assembly Rule 45. Much could be done towards introducing order and certainty into the proceedings of the houses by improved methods of compiling the calendar. Broadly speaking, all contemplated actions which could possibly give rise to discussion should appear on the daily printed program. This means that all bills on second reading, third reading or final passage should be shown. If second reading occurs before reference, the report of the committee should go on the calendar before it is acted upon inasmuch as debate is likely to occur at this stage. Yet the calendars of some states, as Alabama and Iowa, show bills only on third reading. When measures are referred to the committee of the whole, general orders should be included in the calendar as is done in Arizona, Kansas, Michigan, Minnesota, Oklahoma and the New York Senate. A material defect of the Massachusetts calendar is its failure to show measures up for final passage, a step, which, it will be recalled, does not occur until the bill has been returned from the other house with engrossment concurred in. Although final passage is thus rendered largely perfunctory it is the crowning stage of the bill's career and setting the time at which it is to occur should not be left so completely in the hands of the speaker. As noted above, however, the speaker will inform any interested member of the time at which a certain measure is to come up. Measures should be set forth by title, as is done generally, and not by number merely, as in Illinois, Maryland and New Jersey. If bill dockets or bill indexes are published regularly a complete history of the bill is superfluous, but brief summaries, as included in the calendars of California and Iowa, would act as a ready reference. If a bill has been amended at any time the fact should be noted and, if copies of all amendments are not placed in proper order in members' files by clerks, citations to the pages in the journals where they may be found should be included. Vermont calendars include such citations, but Massachusetts goes farther and prints all amendments in full in the calendar, thus guaranteeing that they shall be available to members at the time action is to be taken thereon. It goes without saying that all special orders should appear on the calendar and that all that has been said about bills applies with equal force to resolutions. There remain three other orders of business of which members should be advised beforehand since they will be called upon to assert |