CONSTITUTIONAL LIMITATIONS ON LEGISLATIVE POWERS The scope of the judicial veto is determined by the extent of the constitution limitations upon the powers of the state legislatures. In the beginning, therefore, it was confined to a comparatively narrow range of subjects, since the powers of the state legislatures were limited only by the general reservations of rights to the people in the original declarations of rights. With the gradual decline, however, in the prestige of the state legislatures the constitutional limitations upon their powers were steadily increased. In other words, the record of legislative folly and corruption in the American states is spread upon their constitutions in the form of a stream of amendments designed to check the abuse of legislative powers. The power to pass special and local acts, the power to tax and to grant tax-exemptions, the power to invest the public money, loan the public credit, and dispose of the public resources in general, all were subjected to a series of restrictions ever increasing in number and stringency.

The limitation of the powers of the legislatures, though never interrupted, has proceeded with conspicuous vigor at three clearly defined periods, each inaugurated by especially impressive examples of legislative incapacity and turpitude. The first period began with the notorious Yazoo land scandal in Georgia, followed by scandalous practices in connection with the grant of banking charters in several of the states, especially in New York. The revision of the constitution of Georgia in 1798 was undertaken mainly for the purpose of preventing the repetition of the land scandal, and the experience of Georgia was not forgotten when the constitutions of the new states of the old Northwest and Southwest were formed early in the nineteenth century. The period culminated in the reform of the New York constitution in 1821. The second period began with the panic of 1837, followed by the failure of the systems of internal improvements undertaken by many of the states, and the repudiation of several state debts. The constitutions of Pennsylvania in 1838 and New Jersey in 1844 were revised with a view to profiting by these unpleasant experiences, and by the middle of the century the constitutions of most of the states had been revised or were in process of revision. The third period began with the outburst

of speculation in special privileges at the close of the Civil War, and is sufficiently characterized by the Credit Mobilier scandal in Congress. Beginning in 1870, the constitutions of most of the leading states in the North outside of New England were revised, the culmination of the movement being reached in New York in 1894. At the same time, in the South, the period following the overthrow of negro domination was likewise characterized by the thorough overhauling of the constitutions of the states, with a view to the further limitation of legislative misconduct.

The great extension of the power of judicial veto during the nineteenth century is revealed by a comparison of the constitutional limitations originally imposed on the Massachusetts legislature with those imposed on the legislature of New York in the constitution of 1894. For example, the power to tax in Massachusetts was limited only by the provisions that personal and property taxes should be "proportional and reasonable," that duties and excises should be "reasonable," and that for the purpose of levying poll and property taxes there should be a revaluation of property at least once every ten years. The power to appropriate the proceeds of taxation was limited only by the provision that appropriations should be for a public purpose.1 Finally, the legislature was forbidden to suspend the writ of habeas corpus, except upon the most urgent and pressing occasions and for not more than twelve months at a time.2 Except for the limitations set forth in the declaration of rights, there were no other limitations upon the powers of the legislature in the Massachusetts constitution of 1780. The power to dispose of the public domain, to incur debt, to charter corporations and confer special privileges upon them, to pass private and local acts, to engage in public enterprises, and to pass public acts of every description, all were conferred in one general grant of legislative power.3

In New York, on the other hand, by the constitution of 1894 the powers of the legislature were subjected to important limitations, and legislative procedure was subjected to stringent regulation. No private or local bill might embrace more than one subject, and no private or local bill might be passed at all in any one

1 Ch. i, sect. i, art. iv; ch. ii, sect. i, art. ii.

2 Ch. vi, art. vii.

3 Ch. i, sect. i, art. iv.

of a long list of specified cases. Among these were the following: changing the names of persons, laying out roads, locating county seats, providing for changes of venue in civil or criminal cases, incorporating villages, selecting grand or petty jurors, regulating the rate of interest on money, creating allowances for public officers during their terms of office, granting the right to lay down railroad tracks, granting to any private corporation, association, or person any exclusive privilege, or granting to any person or corporation an exemption from taxation on real or personal property. The assent of two-thirds of all the members elected to each branch of the legislature was required for any appropriation of public money or property for private or local purposes; and the assent of a majority of a special quorum consisting of three-fifths of all the members on a special roll-call to be recorded in the official journal was required for the adoption of any act imposing a tax, creating a debt, or making an appropriation. The legislature was forbidden to loan the credit of the state to any person or corporation, or to contract debts in excess of one million dollars for the purpose of meeting deficits in the revenues except in case of insurrection or invasion, or to contract any debts for any other purpose except with the express approval of the people. The legislature was forbidden to dispose of the state forests, or of the canals, or to charge tolls thereon. The legislature was forbidden to authorize any local governing body to loan its credit or incur indebtedness except for its own purposes, and local debts were limited to ten per cent of the assessed valuation of local real estate. The constitution also provided for the classification of cities in three classes according to their population and prescribed a special procedure for the passage of special laws relating to a single city or to any number of cities less than the whole number in a class. Such a law, before being submitted to the governor for his approval, was required first to be transmitted to the mayor or mayors of the city or cities concerned and, if not approved by him or them, to be repassed by the legislature with a statement in the title for the information of the governor that the bill is passed without the acceptance of the city or cities concerned. The apportionment of the state for the election of members of the legislature was provided for in the constitution itself, and the power of the legislature to redistrict the state was

carefully defined. The manner of passing bills was regulated in order to secure due deliberation and adequate publicity at each stage of the procedure, and the legislature was expressly forbidden to audit any private claim against the state, or to authorize the payment of any account not previously allowed according to law. It is apparent that the New York constitution of 1894 afforded far broader scope for the exercise of the power of judicial review than the Massachusetts constitution of 1780.

At the present time, the states fall into three groups with respect to the extent to which legislative powers have been restricted by the insertion of express limitations in the state constitutions. The first group consists mainly of states in New England, of which Massachusetts is the most conspicuous representative, and is characterized by a comparatively slight imposition of constitutional limitations upon legislative powers. The second group comprises a somewhat larger group of states, mostly in the East and Middle West, of which New York is the most conspicuous representative, and is characterized by a more extensive limitation of legislative powers, but especially by a more thorough regulation of legislative procedure. The third group comprises the greater number of states, including almost all the states of the South and Far West, of which the most conspicuous representatives are California, Louisiana, and Missouri, and is characterized not only by the extensive limitation of legislative powers, but also by the regulation of the frequency and duration of the legislative sessions. In most cases, the legislature is permitted to meet only every other year, unless called in special session by the governor, but in Alabama it is permitted to meet only every fourth year. In most cases, the sessions are limited to sixty or ninety days. In a few the limit is lower. In Oregon and Wyoming it is placed as low as forty days. Apparently the people of those states despaired of securing any effective check on the misconduct of their legislatures, and, accepting the view that legislatures are a necessary evil, sought relief by confining the evil within the shortest possible limits of time.1

1 For an illuminating interpretation of the constitutional history of the state legislatures, see Herbert Croly, Progressive Democracy, chs. xi, xii. See also P. S. Reinsch, American Legislatures and Legislative Methods, ch. iv.

GROWTH OF POWER OF CONSTITUTIONAL CONVENTION

The widespread adoption of constitutional limitations upon legislative powers, apart from its effect upon the exercise of the power of judicial review, has had important consequences on the general operation of state government.

In the first place, it has greatly altered the position of the constitutional convention in the governmental system. In the beginning the constitutional convention was an extraordinary legislative body, meeting only for the purpose of devising or revising the fundamental organization of the government. As the prestige of the ordinary state legislature declined, however, that of the constitutional convention rose, and its work broadened in scope. From the moment that the convention came to be regarded as the instrument for repairing the mistakes or misdeeds of the ordinary legislature its future became full of promise. At first it generally confined its correctional activities to the single task of imposing upon the legislatures constitutional limitations designed to prevent the abuse of their powers. Then it began to issue orders to the legislatures, enjoining upon them the performance of their duties. Thus, the Georgia constitutional convention of 1798 commanded the Georgia legislature to repeal certain acts relating to the disposal of the public lands, and to enact certain other measures in their stead. It was quickly perceived, however, that this mode of procedure was ineffective, since there was no means of compelling a refractory legislature to comply with the orders of a convention. The difficulty was the same as that which had frustrated the efforts of the council of censors in Pennsylvania. The constitutional conventions, therefore, quickly adopted the practice of executing their own commands by the simple device of inserting them in the fundamental law, and thus taking the matters to which they referred out of the hands of the legislatures. In other words, the conventions utilized the forms of fundamental law-making for the purpose of enacting ordinary statutory law, and thereby acquired for themselves the powers of an ordinary legislative body, subject in their exercise to the approval of the electorate in those states where the approval of the electorate was required for the revision or amendment of the constitution. In short, the constitutional