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our leading states all of the principal officers and some members of the legislature were indicted for violating a law which attempted to fix the number of employes. The court rightly held that the houses of a legislature could not be bound by such a law because it interfered with their inalienable powers. Laws in violation of this principle are on the statute books of several states.

Another subject which has not had the attention which it deserves is treated in this study, namely, the validity of the enrolled bill. There is some confusion of legal authority on this point, a majority holding that the enrolled bill cannot be impeached, while a few would allow the journals as evidence. Either conclusion leads to absurdities. If the journals or parol evidence cannot be used to impeach an act, then acts which never passed either house may become laws by the signature of the presiding officers and the governor, as actually happened in Indiana in 1913, through the trickery of some unknown person. The doctrine of the validity of the enrolled bill would make such an act valid in spite of the plain evidence that it never passed. On the other hand, if the journals are to be used as evidence, the law may be made to depend upon the accuracy of the work of legislative clerks, who are seldom known for their efficiency. Instead of taking the act from the statute books as it stands each act would have to be traced back through the journals. The doctrine that "ignorance of the law excuses no one" would truly become a joke under such circumstances.

It is just such questions as these that most need analysis and careful treatment. The physiology of legislatures should be studied rather than their anatomy. The following study tells more about how the houses are organized, how the committees work and how a bill travels through the process than has heretofore been brought together, which material is compacted into a few pages. Scarcely a superfluous word is used to describe important processes. The study will be of great basic value in the inevitable reform of legislative processes.

JOHN A. LAPP.

CHAPTER I

THE LEGISLATURE'S INHERENT POWERS IN MATTERS OF PROCEDURE

The methods and forms by which legislative business is carried on are notoriously lax. Rules designed to protect the rights of the minority, to secure due deliberation and publicity for all legislative acts, and to introduce order into the performance of legislative duties are known to be frequently disregarded. Judgments of presiding officers in direct contravention of the rules have been sustained by majority vote, and legislative houses, in flagrant violation of their own law, have overruled correct decisions. To such loose and chaotic practice was due, in no small degree, the growing popular distrust which so boldly marked the nineteenth century attitude towards our state legislatures. Successive constitutions reflect the decline of confidence in representative assemblies by defining and restricting in great detail the powers which the legislature may exercise. Relief from the prevailing extravagance and recklessness was sought by designating the forms and procedure by which the legislature must act. Thus the newer constitutions, in an effort to insure order and deliberation in the work of the legislatures, or at least to prevent repetitions of certain gross frauds, came to include specific provisions governing parliamentary practice. Today provisions that a bill must be read three times on separate days are common, and numerous regulations concerning introduction of bills, signing by presiding officers, functions of committees, et cetera, occur in many organic laws.

Occasionally the legislature itself, in the spirit of repentance, elevated a rule of procedure to the plane of statute law. Thus the requirement that local or private bills must be published in the district which they affect found a place on the statute books. In like manner, improved methods of handling contested election cases were attempted by acts delegating disposition of them to the courts. The purpose of course was to establish by legislative action a few fundamental parliamentary rules to control the whims of the legislature without the observance of which no action could be deemed legal.

INHERENT POWERS DEFINED

But when the aid of the courts was summoned to apply these provisions, whether embodied in the constitution or occurring merely in the statute law, the doctrine of inherent powers and privileges of legislative bodies was seen to be involved. Historically this is a very ancient doctrine. It takes its source in the long struggle in England between King and Parliament, when the matter of gaining and securing recognition of a privilege was a tremendously important thing. A privilege once established, the Commons were at that point secure from royal interference; either directly by agents of the king or through the processes of the courts. But it is one of the curious developments of history that a principle, employed to protect the representatives of the people against coercion and intimidation by an autocratic power, should today remove them from all legal liability so far as the forms by which they conduct themselves are concerned.

Legal theory recognizes that each department of government possesses certain inherent powers of which it cannot be deprived by a coördinate branch. This is the doctrine of inherent powers. Speaking generally, these powers are such that if the free exercise of them were obstructed the effective discharge of the duties of the constituent branch would be seriously impaired. It is generally accepted that no explicit constitutional provision is necessary to the exercise of these powers and privileges upon the part of the legislature, but that they are implied in the general grant of legislative power and are necessary if that body is to fulfill its function. The broadest expression given to such rights describes them as inherent in the law-making branch and capable of being ascertained primarily by an examination of common parliamentary law. They are not derived from express provisions in the constitutions. On the contrary, they arise from the very nature of a legislative body. Indeed the constitution is not a grant but a restriction upon this power.1 In

1 Ex parte McCarthy, 29 Cal. 395. This follows closely the English theory of lex et consuetudo Parliamenti as outside the common law. See Blackstone's "Commentaries," Bk. I, c. 2; "But the maxims on which they (the two houses of Parliament) proceed, together with the method of proceeding, rest entirely in the breast of parliament itself and are not defined or stated by any particular stated law." Coke also, 4 Inst. 15, "Judges ought not to give any opinion of a matter of privilege, because it is not to be decided by the common laws but secun

the light of this principle, provisions which read, "Each house shall have all other powers necessary for a branch of a legislature of a free state," can add nothing to prerogatives already enjoyed. It is worth while to examine the nature of these inherent rights, which can be restricted only by the constitution itself and in the exercise of which a legislature cannot bind itself any more than an individual can bargain away his freedom.

THE POWER TO DETERMINE THE QUALIFICATIONS OF MEMBERS IS EXCLUSIVE

The right to judge of the elections and qualifications of its own members is expressly conferred upon each house by the constitutions of forty-six states. Originally developed by the House of Commons as a protection against encroachment by the king, it would exist today, in the absence of any constitutional grant, as an inherent power "necessary to the legislature to enable it to perform its high function." "It is the power of self-protection."4 The right being exclusive, the legislature cannot refer ultimate decision to any other tribunal. The courts can enter no judgment. Their decision is merely advisory, if indeed they can act in the matter at all.5 Neither will the courts inquire the reason for the expulsion of a member, no matter how arbitrary and unfair the action of the legislature. In no case will the courts examine the returns to see who was

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dum leges et consuetudinem Parliamenti."

American courts have declared that in general the two houses are organized and governed in accordance with the recognized principles of parliamentary law. Ex parte Screws, 49 Ala: 57; State v. Rogers, 56 N. J. L. 480. The accepted opinion in Congress is that until rules have been adopted each Congress operates under what Speaker Reed termed common parliamentary law, in which the practice of the House constitutes a principal part. 5 Hinds 6759-6763.

2 Such provisions occur in thirteen state constitutions.

See Index-Digest of State Constitutions, prepared for New York Constitututional Convention, 1915, pp. 885-6 and 925-6.

4 Hiss v.

Bartlett, 69 Mass. 473; French v. State, 146 Cal. 604.

5 In re Contested Election of Senator, 111 Pa. St. 235. In State v. Gilmore, 20 Kan. 551, an act empowering a court to vacate a seat of a member who upon trial was found to have been intoxicated in a public place was declared void. The legislature's exclusive power to judge of the qualifications of its members is not exhausted by admission to a seat. In Dinan v. Swig, 112 N. E. 91 (Mass. 1916) the power of a court to render even an advisory opinion is denied. Also in State v. District Court, 50 Mont. 134 (1914).

• Hiss v. Bartlett, supra; French v. State, supra; Auditor-General v. Board, 51 N. W. 483 (Mich.).

legally elected, the legislature being the sole judge of all questions of law or fact involved. The courts will exercise no supervision over justices of the peace authorized by statute to take testimony in con- tested elections of members of the legislature. The powers of these officials when so acting are not judiciary, but rather in the nature of the work of a committee of the house.8

Since the courts refuse to review in any manner the action of the legislature in admitting or expelling members, the binding force of statutes defining the methods of contesting elections rests solely in the will of the house. This is in harmony with the view adopted by Congress that such an act is only a wholesome rule not to be departed from without cause, and that a petition failing to proceed according to law is not without remedy. Such laws must be viewed as convenient aids to the legislative house and cannot exist as a check upon the legislature's power to adopt any other procedure at will. In fact it has been recently declared that a statute attempting to define the procedure to be followed would be void.10 THE POWER TO PUNISH FOR CONTEMPT IS A PREROGATIVE

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A second inherent right is the power of a house to punish contempts of its authority. Following English precedents11 our courts at first held that this was a general power necessary to the exercise of legislative functions and the adjudication of the house was sufficient to establish the fact of contempt.12 This exclusive jurisdiction, however, was restricted in the opinion, rendered in the famous English case of Stockdale v. Hansard, which declared that, although no court could relieve a person committed for contempt from punishment lawfully inflicted, the question of the jurisdiction of the house is always open to inquiry.13 The United States Supreme Court finally accepted this view and in the case of Kilburn v. Thompson

"O'Donnel v. Judges, 40 La. Ann. 598; People v. Mahaney, 13 Mich. 481; Bingam v. Jewett, 66 N. H. 382; Dalto v. State, 43 Ohio St. 652; Corbett v. Naylor, 25 R. I. 520.

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11 See May, "Practice and Usages of Parliament," 10 ed. p. 131 et seq.

12 Anderson v. Dunn, 6 Wheat. 204, followed in a series of cases until Kilburn

v. Thompson, 103 U. S. 168. See also Coffin v. Coffin, 4 Mass. 35.

13 9 Ad. & E. 1, and 11 Ad. & E. 253.

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