IN considering the work and procedure of the legislature, it may be of interest to describe the peculiar conditions in Wisconsin. If the legislative product was to be effective, the actual business methods of the legislature had to be reorganized; this fact seems to have been recognized by the leaders. The reform of the legislature in this direction has been remarkable; the credit belongs not to any one faction, for this reform was due primarily to the decided legislative opinion that conditions should be improved. Eleven years ago there were about seventy women employed to engross the bills of the legislature in long hand; there was scarcely a typewriter used. Scraps of paper were often passed up as bills to the speaker's desk. The place was full of useless employees, many of whom never did a stroke of work. It was absolutely impossible to tell how many bills amending a certain section were before the legislature. There were no checks as to accuracy. The halls were crowded with lobbyists. It was easy for a country member to find an attorney to draft a bill for him for a small fee, especially if the bill was aimed at some corporation which could later be approached by the attorney. There was no organized method of placing information on any particular bill before the legislator, nor was there any impartial or skilled assistance in the drafting of bills for the honest legislator who knew nothing of law. If hearings were held, no one save the lobbyists knew when they were scheduled. The great corporations were obliged to have lobbyists on the ground to keep them informed as to the prospective legislation. If these lobbyists found nothing which would harass their employers, they frequently took the trouble to see that something was introduced which would so embarrass the corporations in order that they might continue to hold their jobs and obtain more money to spend. The "hold up man" was prominent; one man every session brought a trunk full of "strike" bills to be distributed among his loyal supporters. The hotels and saloons flourished and there was much money in evidence.
A lobby law was passed which tended to lessen the confusion on the floor. In 1903 male stenographers and printing were substituted for the women copyists, which change resulted in great economy. During the 1911 session, the improvement under the strict rules as laid down by the speaker in the assembly was very great and insured orderly and businesslike proceedings. Engrossed bills were printed and placed upon the desk of each member; if a legislator found errors in his bill, he could immediately stop its passage to the governor and have them corrected. This reform removed one temptation to corruption. The governor at the same time secured an able attorney to examine bills before he signed them, so that if errors were found, they could be corrected before his signature was affixed. What he actually signed was one of the printed copies of the engrossed bills which were laid upon the desk of every member. Here were checks against mistakes in the passage and the final product, together with such watchfulness as would prevent dishonest clerks from inserting or removing something at the behest of interested parties.
With the coming of civil service, the clerical force was at once made more expert and fast, accurate workers were substituted for those who had obtained their positions by political pull. The amendments to bills were also printed and attached to the bills in the files, so that each member had a complete copy of the bill under consideration when he cast his vote. Paper, uniform in size, was provided and bills were required to be in duplicate upon introduction, so that while one copy was sent to the printer, the other was available to the house. This made it exceedingly difficult to steal, change or mutilate a bill by means of the old tricks of the past.
A bill drafting department was established in the legislative reference department and the following rules laid down so that the draftsmen could not insert jokers into the bills.
"1. No bills will be drafted in the Reference Room. A separate Drafting Room and a separate force have been provided.
"2. No bill will be drafted, nor amendments prepared, without specific detailed written instructions from a member of the Legislature. Such instructions must bear the member's signature.
"3. The draftsman can make no suggestions as to the contents of the bills. Our work is merely clerical and technical. We cannot furnish ideas.
"4. We are not responsible for the legality or constitutionality of any measures. We are here to do merely as directed.
"5. As this department cannot introduce bills or modify them after introduction, it is not responsible for the rules of the legislature or the numbering of sections either at the time of introduction or on the final passage.
"Legislative Reference Department."
The committees were gradually altered and adapted to meet the changed economic conditions and the type of legislation which was being passed. The following are the committees in the assembly of the 1911 session:--
|Courts and procedure||Express, telegraph and telephone|
|National and interstate relations||Workmen's compensation rations|
|Constitutional amendment||Labor and labor conditions|
|State and economic betterment||Welfare of women and children|
|Elections||Public health and sanitation|
|Taxation||Purity of commodities|
|Excise and fees||Fish and game|
|Agriculture||Commerce and manufactures|
|Agricultural exhibitions||Parks, playgrounds and city planning|
|Military affairs||City living conditions|
|Cities||Country Living Conditions|
|Towns and villages||Education|
|Charitable and penal institutions||Engrossed bills|
A revision committee was created, with a civil service clerical force, to search all bills for technical errors. Records of sections amended are carefully kept so that confusion and duplication may be avoided. Bills are checked at every stage of passage by the clerks of this committee.
In order that all parties interested in legislation may be heard, the hearings of committees are by rule, scheduled in advance and a weekly cumulative bulletin is issued showing the exact status of each bill and its history up to the time of publication. This system of notification is not yet perfect but at least the business man or citizen interested in certain legislation receives some warning of hearings upon it. There is no secrecy in connection with these committees; they are compelled to report out each bill, with a recommendation together with a record of the ayes and noes of each committee hearing. Committees are all-powerful in an American legislature. The roll-call on a bill before the house does not always tell the story of its opposition or amendment in committee. The Wisconsin rule given below is not faultless but serves as a check upon the power of the committees.
"JOINT RESOLUTION NO. 46, Laws of 1911, Relating to hearings before and records of committees of the legislature.
"Resolved by the Assembly, the Senate concurring, That there be added to the rules, a new rule to read: 29a. 1. The chairman or acting chairman of each committee of the legislature shall keep, or cause to be kept, a record, in which there shall be entered:
"(a) The time and place of each hearing, and of each meeting of the committee.
"(b) The attendance of committee members at each meeting.
"(c) The name of each person appearing before the committee, with the name of the person, persons, firm or corporation in whose behalf such appearance is made.
"(d) The vote of each member on all motions, bills, resolutions and amendments acted upon.
"2. Such record shall be ready and approved before the expiration of ten days after each committee meeting, or at the next regular meeting of the committee.
"3. Every committee hearing shall be open to the public.
"4. There shall be filed, in the proper envelope, with every bill or resolution reported upon, a sheet containing the foregoing information as to such bill or resolution, with a duplicate thereof to be filed by the chief clerk numerically by the number of the bill in such form as to be most accessible for the use of the members and the public, during the session and at the end thereof in the office of the secretary of state."
Wisconsin has now added to its other machinery a permanent statute revisor. It is his duty at the close of each session to issue an annual volume bringing the statutes to date and systematically to revise them, chapter by chapter, submitting each chapter as revised, to the legislature for approval. The revisor of statutes and his assistants are now called in by the governor to examine all bills for technical mistakes before he signs them. This adds a further check on mistakes and will doubtless prove a step toward making our statute law a much finer and more dignified code.
Wisconsin has had a great advantage in its appropriation procedure, for all appropriation bills must receive the sanction of the joint committee on finance. This committee has practical control of the amounts apportioned and it has become so thoroughly a custom to "uphold" the committee, that its cuts are almost always maintained. This has led to great economy and particularly efficient adjustment of various appropriations. Of course, this committee withholds the bills until it sees their full content and until some estimate of revenue can be made. The committee in recent years has employed clerks and statisticians. Contrary to the custom in nearly all other states, this committee reports these bills one by one, to the legislature, thus holding control of the situation until the estimate of their amount and the revenue which may be expected is secured. No other attempt at a budget is made.
The state board of public affairs created by chapter 586, laws of 1911, is now outlining a plan whereby estimates may be made before the beginning of the session, by which greater accuracy and certainty can be secured during the legislature.
In the opinion of the writer, Wisconsin has been fortunate on the whole, in not having what is known as a "budget bill." Trained as a student of economics, it was rather difficult for him to reach this conclusion but a thorough investigation of the procedure in other states and some first hand knowledge of such procedure in foreign countries have convinced him of the wisdom of this plan. The budget bill is considered unwise because it includes so much that is a fruitful source for log-rolling and in nearly all states has to be supplemented by other and more dangerous machinery, such as the power of the governor to veto items in order to do away with riders, the deficiency bill to make up for inevitable mistakes and discrepancies and other similar devices. So much is involved in a budget bill that the members cannot consider the items separately as they should and are inclined to either cut it arbitrarily or accept it as a whole. In Wisconsin each bill must be considered on its merits, fought over and either killed or passed. Nothing could be more desirable if at each stage, the members have before them a statement of the actual finances of the state. The budget bill--meaning one inclusive bill containing all appropriations--belongs in a responsible cabinet government and not in a government such as ours. A cabinet government may present its estimates and recommended expenditures and permit the legislative body to fight over them within limits but the administration as a result of its acceptance or rejection, stands or falls, consequently the party member is whipped into line and supports those who make the estimate, unless the protest from public opinion is so great that he dare not do so. If he does not stand by those estimates his party goes out of power and a new administration comes in to make a more acceptable and popular budget. That American states have adopted the budget bill stands as a monument to the stupidity of political economists who have recommended it to American legislatures in the past.
Wisconsin fortunately never has adopted another plan which has usually accompanied the budget idea as furthered by political economists and accountants and which has no precedent on the face of the earth--that is, the idea that appropriations should be made for all state departments merely for a two year period. The inefficiency, corruption and log-rolling which have come in many states from this entirely false idea have been excluded from this state in spite of constant pressure to introduce it. Such a plan means minority control of all institutions and departments; it means that every institution or department dies every two years, for unless the appropriation is forthcoming the institution or department must go out of existence; it means that twenty members of a senate--if twenty is a quorum--may say to the entire legislature, "It takes an affirmative action to pass this money and we can block it. If the institution or department wants this money it will have to accept our terms." That is, the minority dictates the terms. This little joker has not been realized by our wise economists and accountants who have been called upon to help legislatures to better their financial procedure but it has destroyed the spirit of institutions, it has debauched commissions and departments and resulted in stagnation in many states. In some states where things are peacefully sleeping, we hear nothing of its influence; but let an institution or commission become really active and note what will happen. The writer has evidence in his possession from many states of its power. He does not wish to be understood as opposing the budget system. On the contrary, he firmly believes that all appropriations together with careful revenue estimates should be laid before the legislature every two years so that an account of the stewardship of commissions and institutions may be made to a cent, but there should be a number--an ever-increasing number--of institutions on a permanent basis so that the legislature by a majority vote may at any time, raise or lower the appropriation as it sees fit--but not by a minority vote. The matter is important and worthy of serious consideration because no state will get sound results unless it provides some permanency for judicial bodies, semi-judicial commissions, such as civil service, railroad commissions, etc., and above all, educational institutions.
In England especially and in foreign countries in general, although the budget may be considered at stated intervals, many of the most important items are placed on a permanent basis. Even under cabinet government in foreign countries which may be changed by public sentiment, there exists no such budget idea as in the American states. Indeed, those countries provide means whereby, if the budget does not pass at all, the departments and institutions still continue. How can the experts in our commissions and the thinkers in our institutions ever be aggressive and wide awake if they always have to be on the defence against a minority? There is no more unwise arrangement conceivable than this plan of having our appropriations completely end every two years.
Another advantage which has fortunately helped this state is the simplicity of its old constitution. For instance, in many states it is almost impossible to pass legislation which will withstand the scrutiny of the courts, because of the technical legislative limitations. Many of these are exceedingly trivial, such as defining what should be in the title of a bill. Wisconsin is fortunate to escape some of these unimportant limitations, although one very perplexing difficulty is constantly arising. In this state there is but one city of the first class--Milwaukee. The constitution forbids special legislation so that all its legislation must be made general for cities of the first class. It is practically impossible to draft a law for that city which will certainly stand the test of constitutionality under the complex limitations and the numerous court decisions involved.
Many constitutions provide limitations as to the length of the legislative session; Wisconsin has no such limitation. In spite of cheap clamor concerning the time spent by the legislature in session, this has been a great blessing to the state. With hundreds of laws to be provided any one of which may be tested before the courts for years, it would indeed be foolish to fail to give reasonable time or intelligent care to these bills. It is a good investment in the end. The writer believes it would be a good thing for the legislature to meet immediately after election, organize committees and adjourn for a year; it would certainly assure more care in the preparation of measures.
The Wisconsin legislature meets biennially. The amount of work involved has been so great that the writer believes it will not be long until some kind of annual session will be necessary if hasty legislation is to be avoided. In those states which have sessions limited to sixty or ninety days by their constitutions, there is an excellent opportunity for "jockeying" and great inducements for delay, as all bills not previously disposed of must either be passed or killed in the last few hours. Nothing more disastrous to good legislation can well be imagined and the session laws of those states bear out this statement.
The study of legislative machinery has been of special interest to the author because of his duties as chief of the Wisconsin legislative reference department. Because of many questions from various parts of the country, the following description of the department and its purposes is included. Much of the following has been digested from previous statements but there are occasional digressions to show the actual conditions of legislation and the need of a department of this kind.
We are all aware of the stupendous changes in our economic and industrial conditions which this country has undergone since the constitution was adopted. To meet these conditions our whole theory of government has been strained.
Diagram V may illustrate the problem of modern legislation. Let us assume that this illustrates approximately the conditions when the constitution was first adopted. It will be presumed that the constitutional convention made legislative power and the constitution conform approximately to the actual industrial and social needs of society. This is a reasonable supposition. If true, what has since occurred?
Diagram VI illustrates the present relative position of the constitution, the legislative power and economic conditions.
The constitutional power has been increased by the action of the courts and especially by the new force which has grown up, probably not contemplated by the original constitution, namely, the power of the courts to pass upon the constitutionality of laws. The constitution in fact, has grown from a small pamphlet into thousands of cases and hundreds of volumes of decisions. These decisions cannot but lessen the power of legislatures. It is true that the "constitution cannot be read in a law library" and the increase of the domain of the police power and of administrative law has somewhat broadened the power of the legislature in certain directions but on the other hand the very mass of interpretation is itself a restriction.
Every word, almost, has received an interpretation or has had its meaning confused by endless decisions. Judge Hornblower in an address in which he decried the increase of statute law and defended judge-made law, gives us one of the strongest pictures of the difficulties of law making. He says:--
"Experience shows that when rules of law are reduced to statutory form the work of interpretation and construction commences. Each word in the statute assumes importance and calls for enforcement. A 'but' or an 'and' becomes as important as the subject or the predicate of the sentence, and sometimes even more important. . . .In a statute conciseness, exactness, and precision are sought after, and each article or preposition is as much the will of the legislature and as binding upon the courts as are the nouns and verbs.
"Human language is at best defective and ambiguous. Theologians dispute over the meaning of texts of Scripture, and when they have formulated creeds and confessions as setting forth the doctrines of the Scriptures, the dispute begins again over the meaning of the creeds and the confessions. So with statutory law. No matter how clear and simple the language may appear at first sight, doubts will arise, ambiguities will be disclosed, inconsistencies between different sections will present themselves, and a series of never-ending decisions will be inaugurated, construing and interpreting the statute, till each section becomes overlaid with a body of judge-made commentaries forming a new set of precedents and a new jurisprudence. No greater fallacy is indulged in by the advocates of codification than that it will diminish litigation. Statutes breed litigation. Experience demonstrates this. Whatever other merits codifications may have, the diminution of litigation is certainly not one of them. Look at our New York Code of Civil Procedure (our code of practice) with the three bulky volumes of Bliss's Annotations of Decisions construing it, each volume nearly as large as a Webster's Dictionary. Look at the little Statute of Frauds, composed of a few sections with its wilderness of authorities interpreting it. Look at the portion of our New York Revised Statutes on Trusts and Powers, and count the cases in each volume of our Court of Appeals Report construing these few sections. The idea that codification is a remedy for uncertainty in the law and that when the law has been written in statutory form, the layman will be able to read and understand it, is a delusion and a snare."
Professor Howard L. Smith is the authority for the following statement:--
"There are in America alone over six thousand volumes of decisions of fifty or sixty different tribunals, and these are being added to at the rate of from one to two hundred volumes per annum. The common law is being further developed, illustrated, and made by the courts of Great Britain and all her widespread colonies. The number of volumes of precedents that these add every year to the common law, I have not attempted to compute, but it is certainly appalling. The shelves of our libraries groan under them, and the lawyers are being driven out of their offices by their books.
"An advertisement of a recent encyclopedia of law boasts that it has 8559 citations on the subject of adverse possession, while its leading competitor has only a paltry 4999. On the subject of abatement and revival it has 5015 and on appeal and error 47,000. Amid this bog of precedents the lawyer of to-day must stumble, groping earnestly, but often vainly, for a clue which shall lead him to the truth. It is probable that the number of citations on the one subject of appeal and error in this encyclopedia is greater than the real number of precedents on all legal subjects in existence a century ago; but the mad race of precedents is only begun, and will of course increase in the future in an ascending ratio, until in the near future they will be counted by the tens and the hundreds of thousands or millions.
"That the lawyer desiring to advise his client as to some simple, readily foreseeable question of law should be obliged to consult hundreds of volumes, and thousands of precedents, perhaps only at the end to find that there is a hopeless division of authority, and that he knew just as much about it in the beginning as at the end, is certainly a situation so serious as to demand some remedy, if any be possible."
If the lawyer has to meet these conditions what can the layman do? If these conditions are encountered in the interpretation of law, the making of the law is indeed a terrible task. We have an endless circle. We cannot make statute law without consulting this labyrinth; nevertheless we must make it. We must make it even though we only follow public sentiment.
Our government was founded on the principle that the adaptation of law to economic conditions should be made by the will of the people expressed in legislation. We cannot give this task to the judges; we did not make our government on that basis. Divided courts and reversals have left the lawyer helpless as well as the layman of the legislature. The courts have often indulged in reckless use of the power to declare laws unconstitutional on the slightest technicalities. The fourteenth amendment to the federal constitution has been very efficacious in restricting state legislation, as has also the broad interpretation of federal statutes by the federal courts. On the other hand the simple industrial conditions of fifty or a hundred years ago have given place to the present era of wonderful inventions. Nearly every invention and device, economic, commercial and mechanical used in our modern life, has to be met by legislative restriction or control.
Under these conditions it is remarkable what progress has been made with our statute law. In spite of all criticism and faults when one looks over our statute law he is amazed that it is so good. When he considers that it was made under the conditions herein described; when he considers that state after state came into the Union, each making an entirely new constitution, each adopting an entirely new body of laws, he cannot but feel proud of the inherent ability of the American people. The argument is unanswerable. In general legislators have not been corrupt nor have they been inefficient. Our statute volumes are monuments to the ability and common sense of our legislators. No other people under the same conditions could have done so well.
Representative government must be judged in the end by its product and the immediate tangible product of representative government is the statute. If we are to construct a building to-day and the structure is to be a large one or of any real importance, there must be an architect. If it were built without his services it is probable that the building inspector would order it demolished in order to protect life, health and property. We must have experts to show us practical plans and to arrange for heating, lighting and sanitation. If we do not, disaster is the result. In building the statute which regulates everything in life, is it not the sensible thing to employ an architect and let him work out the plans under our general direction and ask him to change them again and again until we are satisfied? Is this not the right thing to do in order that the plans may be passed upon by the building inspector and that the building may rise fair, noble, fitted for our use and so constructed that it may stand for all time?
The courts have acted for a long time as building inspectors. They have been forced to destroy too many structures which were not properly built in the first place. There should be a body of experts to gather information about the laws, to obtain statistics, to draft and redraft through the guidance of the representative of the people, laws which deeply affect the people. There should be some such system whereby the products of democracy may be good and the courts may not be compelled to leave the sphere which the fathers intended they should occupy and go into the untried fields of judicial legislation.
This is the central main concept of the legislative reference department. The legislative reference department of the Wisconsin library commission was established in a small way in 1901. It became apparent at once that the demands of this library were of a peculiar nature which could not be readily met by the ordinary library material or methods.
A plan was devised which has been since carried out as far as the resources given by the legislature would permit. It was found that there was no cooperation between the different states of this Union in the matter of collecting the history of legislation; the history of what had occurred in Europe or in some state of the Union upon a certain subject of interest to the people of the state was not readily available. An effort to supply this demand was made by collecting such indexes of up-to-date legislation as were published, bills from other states, documents explanatory of legislative movements in other states and arranging these by subjects so that they would be at the service of all who desired to see them. It was found that even this material did not solve the problem; it was necessary to clip newspapers from all over the country and to put the clippings in book form, to index them carefully and place them also with the subjects. Our own bills of the previous four sessions were carefully indexed and by noting the subjects of those bills, we anticipated the problems with which the legislature would have to deal. These problems or special subjects were carefully studied in the most minute detail. It was comparatively easy to get laws and court cases but it was far more difficult to find how these laws were administered, to discover the weaknesses in them and to note as far as possible how they could be adapted to our use in this state.
Our short experience has taught us many things. We have been convinced that there is a great opportunity to better legislation through work of this kind--that the best way is to help directly the man who makes the laws. Everything which will help him to grasp and understand the great economic problems of the day in their fullest significance, the legislative remedies which can be applied and the legislative limitations which exist is brought to his attention. The legislator is a busy man; he has no time to read. His work is new to him; he is beset with routine; he is obliged to hold conferences with his friends upon political matters; he is besieged by office-seekers and lobbyists and he has no time for study. If he does not investigate for himself, he often is deceived by those who are seeking the accomplishment of their own selfish ends. Therefore, we can be of the greatest service to him, if we index, digest and make as clear as possible all kinds of information.
A large library is likely to fail in this because it is of too general a nature and too cumbersome. Everything in such a department should be directly to the point. It should be a depository for all sorts of documents relating to any phase of legislation from all the states, the federal government and particularly from foreign countries like England, Australia, France, Germany and Canada. Here one would be able to obtain a law upon any subject or a case upon any law very quickly. Therefore, it is very convenient to have this room near a good law library. Books are generally behind the times, so that newspaper clippings from all over the country, magazine articles, court briefs and letters must supplement this library and compose to a very large extent its material.
A trained librarian and indexer, a resourceful person with a liberal education, who is tactful and can meet an emergency is absolutely essential. The material is largely "scrappy" and difficult to classify and should be so arranged that it is compact and accessible. In our work we are not afraid to tear up books, documents, pamphlets, clippings, letters, manuscripts or other material, put it with the different subjects and minutely index it. Legislators have no time to read large books. The librarian has no time to hunt up many references in different parts of the library; all material upon every subject of legislative importance should be together as far as possible. Complete indexes of all bills which have not become laws in the past should be made. This saves the drawing of new bills and makes the experience of the past cumulative. Records of vetoes, special messages, political platforms, political literature and other handy matter is carefully noted and arranged.
Digests of laws of the various states on every subject of importance receiving consideration by the legislature should be made and many copies kept for distribution. Leading cases on all these laws, opinions of public men and experts upon the working of these laws or upon the defects, technical or otherwise, are carefully indexed. As far as possible in the Wisconsin department the more important subjects with short bibliographies are published in pamphlet form.
Such a department must be absolutely non-political and non-partisan. If there is a choice between the establishment of a political department or no department at all, the latter alternative should be taken without question.
The head of such a department should be trained in economics, political science and social science in general; he should have a good knowledge of constitutional law but above all, should be possessed of tact and a knowledge of human nature.
There should be a trained draftsman connected with the department--a man who is a good lawyer and something more than a lawyer--one who has studied legislative forms, who can draw a bill, revise a statute and amend a bill. It is essential that help such as a man of this type can render, be given to the legislator when he desires it.
Will such a department help in the betterment of legislation?
Let us consider for a moment how a law is actually made. John Smith comes to the legislature. He is a good citizen, a man of hard sense and well respected in his community. Suddenly, from the quiet of his native village, he enters into a new life in a new community. He is worried by office-seekers; his old friends and advisers are not near to help him; he finds that it is necessary to learn the ropes; that if he is to represent his district, he must introduce bills and in some way must push those bills through the legislature. In the first place he must have those bills drafted and since he never drew up a bill in his life, knowing very little of legal technique, he is greatly perplexed. He is confronted with two thousand bills on almost as many legal and economic subjects. Complex questions, which have not been settled by the greatest thinkers of to-day are hurled at his head. Even scientific subjects that the chemist, the physician or the man of science find difficult must be met by our John Smith while in the hurry and rush of committee work. If he is honest, he will either attempt to draft the bill himself or pay some lawyer to do it for him; the easiest way however, is to consult some one else. He finds around him bright men, well paid lawyers, men of legal standing who are willing to help him in every way. It is easy to consult these men; and often if he does, he is lost. He seldom finds a true friend. They are there for their own interests and John Smith is legitimate prey. It is their business to reach him. If by persistent courage and sterling honesty he pushes his bills to passage, those laws dealing with complex, technical subjects and drawn by a man unskilled in law, are often declared unconstitutional by the courts.
Here then, is the situation. We see the farmer, the groceryman, the country lawyer, the successful manufacturer, the man of business, all grappling entirely unprepared, with the problem of making laws that represent every phase of industrial life. A few years ago the simple legislation could be easily handled by these men but now the great problems of the railroads, the telegraph, the telephone, insurance, and the many complex things of our modern Life, make it simply impossible for one man however bright or educated he may be, to act intelligently upon one-tenth of the subjects which come before the legislature. When some new invention comes into being, legislation must deal with it; when some new situation arises through the growth of new industries, some new law must be made restraining, encouraging or in some way regulating these new conditions. It all goes to show how unfitted is our old representative government to meet the conditions to-day and how utterly helpless any one man is to meet these intricate problems.
Besides all these difficulties, there are others previously mentioned, one of which is worthy of special attention, namely the great abundance and complexity of judge-made laws. The increasing distrust of the legislatures by our citizens has resulted in state constitutions which are nothing more than compiled statutes, filled with innumerable restrictions upon the action of the legislator. He is restrained in every way by the federal constitution, by his own state constitution and by the hundreds and hundreds of cases interpreting nearly every word and phrase in every law. Is it any wonder that there is a cry that the supreme court is usurping legislative functions and is defeating the will of the people? Does it seem right that our legislative opinion should be moulded by private interests because they alone know how to present their case? Does it seem right that the only help which the legislator receives in his great need is that of the people who are seeking gain from the very laws he is making and who are trying to prevent the making of effective laws?
A committee is often a judicial body. It sits in judgment upon private bills. It gives rights and franchises that make men wealthy or deprive men of their property. Yet this court hears often but one side of an argument and has no means of investigating the truth or untruth of a single statement made. Not only that but it is subjected in its determination to a hundred influences to which no judge is subjected. Would we permit such a state of affairs in our private business? Would we tolerate it in our judiciary? Why, the powerful interests do not have to resort to bribery! Their experts can win by the irresistible force of argument alone. They must hold the balance, for they have the brains of the land and pay well for them.
Is it any wonder that many good people throw up their hands with joy end say "Thank God the legislature is over"? Is it a thing to be joked about? Our papers make fun of the legislature and its "freak" legislation but it is a most significant state of affairs when a people lose confidence in its governing body.
The revelations of graft and corruption of the last few years should convince us all that we must seek a positive remedy of a more fundamental kind than has yet been proposed. If these are the conditions under which our legislative opinion is formed, is it strange that the will of the people is constantly defeated? Is it any wonder that our laws are poor? Is it any wonder that the clamor of public opinion is not heard within our legislative halls, and that the making of needed laws goes on so slowly? What is the remedy for all this? We look about us and on the whole find our judiciary composed of able men. Our administrative bodies have not yet reached so high a standard but we are every day developing administrative bodies which are becoming more and more fit to take charge of the business of the state but how about the legislature? Does it not seem reasonable that the law which is the expression of the will of the people and upon which good administration is founded, should be scientific--should be based upon the best experience of mankind? If our administration is to be good administration, does it not seem ridiculous that the supreme courts--the highest legal talent in our states and our nation--should go on day after day, year after year turning out decision after decision upon laws which are often made by men who have never seen a law book, and who have not had the slightest legal help extended to them? Does it seem right that our fundamental law should be left to these haphazard conditions? Does it seem reasonable that all the talent should be used in interpreting laws, in curing their defects and that absolutely nothing should be done in a scientific way to assist the man who makes them? The construction of the law is a far harder task than the criticism or even the interpretation of it. It involves the interpretation of it; it involves a knowledge of the theory of government and because of the enlarged sphere of government to-day, a sound knowledge of economic conditions. Our legislators can furnish the brains and the will; all that they need is the technical assistance.
We have heard a great deal of condemnation of the legislature. It is easy and popular too, to sneer, censure and criticise--but we have heard very few suggestions as to a remedy.
If private forces maintain bureaus of information for representatives, let us have public information bureaus open to private and public interests alike. If it is difficult to get information because of the great variety of subjects now coming before our legislators, the only sensible thing to do is to have experts gather this material. If business interests have excellent lawyers to look after their legislation, the people should secure the same kind of men to help their representatives. If the business interests secure statisticians, engineers and scientific men, the public should do likewise. If great judges and lawyers are constantly working upon the problems of interpretation of laws, surely men of equal ability could well be consulted or retained by the people's representatives in the construction of these laws.
Now, what do we expect from the successful operation of a system like this? We hope that all legislation may be made better and be placed upon a more scientific basis. We look upon this as a purely business operation. No one would buy land in Texas without having seen the land. You might buy land in a lake or in the bed of a river if you followed such a plan; you would at least have some one look up your abstract. But we permit our legislators to copy a Texas statute which may be twenty years old, may have been modified twenty-five times, may be entirely unsuited to our conditions and which may be in the end unconstitutional--we let our legislators incorporate such statutes in our statute books without a protest. Common sense tells us that we should secure all possible knowledge relating to that statute for the use of our legislators. In this way legislation cannot avoid being improved; in this way the dearly bought experience of one state is used for the betterment of conditions in another state; the best there is may be culled out from the statutes throughout the country and used for the benefit of our people.
There is a great outcry against our overloaded constitutions. Our constitutions have been purposely overloaded because the people who made them wished to incorporate certain things which could not be overturned by the caprice or corruption of legislators. As time goes on, if the people find that the product of legislation is based upon a careful scientific study, they will regain confidence in the legislature and again trust it.
There is a widespread agitation at the present time for centralization and nationalization, a movement which strives to have one after another of the state functions absorbed by the national government. There is much discussion concerning various forms of federal supervision of one thing or another. As our state laws are gradually improved, a great deal of this agitation will cease, for as yet we have not reached the limit of efficient state activity, nor made a scientific study of expedients. The best laws are those which are of most interest to the men who make the laws, and the only means of saving our local option system of state government, the only means of keeping the federal government at Washington from controlling our affairs, is to make our state laws better and better. The only way in which they can be improved is to use scientific methods in the making of them. Every improved business method together with technical, clerical help should be secured in order that the man who passes the laws may have at his command the knowledge necessary to make laws good, just and worthy to stand for all time.
If our state legislature gains in the confidence of the people, in like proportion will our supreme court and judicial bodies profit. Our courts will not feel called upon to make decisions which apparently defeat the will of the people. They will not be obliged to overthrow law after law which has been put upon our statute books by prolonged and patient struggle. Prevention is better than cure, and every effort which can be put into prevention in this case will make it easier for our courts to decide upon the true merits of the laws. Decisions based upon technicalities will be less in number and our judiciary will continue to be respected and honored.
Says the Montana bar association in a recent report: "The time of the court is consumed in hearing discussions upon statutory enactments and determining what law is in force and what has been repealed. Litigation is thus delayed, additional expense engendered and the private rights rendered insecure." What is the remedy for such conditions? Do these conditions not demand that the same skill used in interpreting the law shall be used in its construction?
Quite recently we have seen the results of the work of the Armstrong investigating committee in New York. No insurance law ever passed in this country had so much effect upon insurance regulation and that report was made by legislators, not by state officials. There have been objections to the increase of commission government and yet this form of government has increased because it has been felt that it furnished the only method of enforcing laws and the only way of administering special duties. And yet this Armstrong committee shows us a way of making laws and of compelling their enforcement better than boards and commissions. If we have some department working with our legislature and have that department between the sessions serve the investigating committees, we can be sure that there is always a check upon the action of our boards and commissions and that there is always at hand a remedy for evil in the hands of the people themselves. They can always ask for an investigating committee for any commission and the report of that committee will probably result in a good, sound law. In England to-day there is a movement to establish a "Permanent staff" for investigating committees intended to accomplish this very purpose.
At the present time in nearly all of our states, an able lawyer may go before a committee composed of good farmers and merchants and though he may not speak the truth, he will sometimes have that committee absolutely at his mercy. He can tell them privately or in committee that a certain bill is unconstitutional or has been a failure where tried and defy individual members to answer him; he has behind him many clerks to gather statistics of all sorts for his use before that committee. What can the individual member of that committee or the committee itself do under those circumstances? Of course, the committee man does not care to make himself ridiculous and so he states the business in a half-hearted report or acquiesces in the statements of the attorney before the committee. If an entirely non-partisan and non-political department existed, composed of men of ability, there is no reason why that committee could not require briefs to be filed by these attorneys for private interests and invoke the aid of this department. In this case it would be more difficult to deceive by misstatements and the committee member could investigate for himself if he were honest and wanted to do his duty.
As to our department in Wisconsin, we are not trying to influence our legislators in any way, we are not upon one side or another of any question nor are we for or against anybody or anything; we are merely a business branch of the government. We are not dictating legislation but are merely servants of the able and honest legislators of our state, clerks to gather and index and put together the information that these busy men desire; it is a business proposition. Question after question asked of us by the legislature is investigated in as scientific a manner as time and means permit. The legislator sometimes does not know where he gets the information; the professor of economics, of political science, the public men, the chemist or scholar does not know where it goes. The great body of public men throughout the country can be drawn upon for information to help our legislators. Committees too, realize the worth of this research work and a large number of the bills before them are investigated by this department. Committees working upon abstract and technical subjects have at their command in concise form, letters, opinions and other data from experts all over the country upon the particular subjects in hand. We may not have accomplished much but at least we have done something where nothing was done formerly. The department now has four expert draftsmen during the session at the service of the legislature and about twenty-five librarians, clerks, research workers, etc.
Has there been criticism? Yes, but it is chiefly confined to this one point; it makes it too easy for a man to draft a bill! Is it a just criticism to say that the carpenter has tools which are too good? What is really meant is that too many bills are drafted. There are too many bills drafted but there are no more in proportion, considering the great agitation going on in this state than in other states. Indeed they are far less than in the old days when annual sessions were held for the purpose of giving away franchises and passing hundreds of private and local laws. Regulative bills and those of a general nature have increased recently in congress and in every state legislature in this country as well as in foreign countries. It means that democracy now is alert and is trying to demolish the old statutes and install new ones.
It is a good condition for the country--a nation is safer than when too much complacency exists. The deadened or uncivilized nations are the only ones which do not require change in laws.
As Walter Bagehot says: "There is a diffused desire in civilized communities for an adjusting legislation; for a legislation which should adapt the inherited laws to the new wants of a world which now changes every day. It has ceased to be necessary to maintain bad laws, because it is necessary to have some laws. Civilization is robust enough to bear the incision of legal improvements." England is a good example of the new activity in legislation.
Any flood of legislation may easily be stopped by the legislators if they determine to consider only the essential and to disregard the remainder. Year after year, the author has offered three suggestions which have been as regularly dismissed. The first of these proposed remedies is the establishment of a legislative rule compelling a member to obtain permission by an aye and no vote of the legislature before introducing a bill. All members would then go on record as to whether they wanted to consider the subject of the bill or not. Of course, the party in power would practically make the selection and be responsible for the introduction of the principal platform bills. But the member who comes to an American legislature wants his constituency to realize that he is doing something and the introduction of bills is a sure sign of activity on his part. Custom is so ingrained that it cannot be changed in a day. There are many men who do not care to father half the bills they present but the fellow at home is a good friend and therefore they must be introduced. If such a rule existed how easy it would be to explain to his friend that under the aye and no vote the bill was refused consideration. It is merely a matter of self-control which the legislature refuses to exercise.
The second suggestion was that much of the private and local legislation could be abolished or submitted to some procedure like that of the English private bill procedure. In Wisconsin about six hundred bills could be disposed of by this device combined with a proper home rule bill. To-day, in the advanced state of Wisconsin there is a fish commission which scientifically selects plans for the propagation of fish. Every session the legislature has to consider about one hundred and fifty or more fish bills relating to every creek and pond in the state. It does seem that if the commission is permitted to put fish into a lake, it could be trusted to determine rules as to the desirability of taking them out.
The third recommendation was that no bill be drafted in the legislative reference department unless the prospectus submitted be signed by ten or fifteen members. This protection has not yet been granted. If the department had this or some similar defence, it could devote the time of its lawyers to the more important bills. However, most of the bills before the legislature are drafted by attorneys throughout the state and sent to the members in all kinds of forms. The members then submit the bills for revision, so that they may follow the legislative rules. In this way over go per cent of the bills before the Wisconsin legislature in some way come in touch with this department.
The relation of this work to a deeper study of statute law and the principles underlying it will be the next consideration.