poration by special laws was adopted by any State. This was in Louisiana, which was followed in 1846 by New York. The Massachusetts Convention of 1853 submitted a harmless amendment which said "the legislature shall not create corporations by special act when the object of the incorporation is attainable by general laws." Incorporation by general law is now provided for by the constitutions of four-fifths of the States and in most of the others the same result is attained by

statute.

Another restriction commonly found in the constitutions of the States is that which forbids grants of credit of public money in aid of private enterprises. These restrictions were the result of the disastrous experiences of the States in the reckless appropriation of public funds and the loaning of the public credit for the development of railways, canals, banks, and various other enterprises of a semi-public nature.

The salaries of public officials have been the occasion of a great deal of special legislation, and the tendency of legislators to be generous with popular public officials has proved expensive to the States concerned. As a result about two-thirds of the States now provide that salaries can be neither increased nor diminished during the term for which the officer was chosen. Closely akin to the matter of salaries is the granting of pensions, annuities, or sums for extra services. How great is the need for restriction upon measures of this kind appears from the fact that in Massachusetts in the five years prior to 1915, 392 petitions were presented for increased or special compensation.

VI. RESULTS.

} One effect of the numerous restrictions on legislative action now contained in the State constitutions is a great reduction in the volume of legislation. In Illinois the private laws adopted at a single session filled 3,354 pages. Then came a constitutional prohibition of special legislation as to twenty-three subjects, and in the ensuing five sessions, such legislation filled an average of only 228 pages. This may be taken as typical of the result in all the States. Whenever special legislation is restricted, the volume of legislation has been materially reduced. It must also be admitted that the restrictions upon the

enactment of special legislation have resulted in removing from the legislators many of the temptations to which they had been previously exposed. The grant of a special charter containing corporate privileges that could not be obtained under general law, or the grant of a public franchise freed from some of the restrictions to which all such franchises as a class were subject might be so valuable to the parties interested as to make it profitable for them to expend large sums in order to obtain the legislative action desired. The demoralizing influence of such methods was not confined, however, to the action of the Legislature upon the measure in question, but necessarily resulted in lowering the moral tone of the entire body in every phase of its activity. While no constitutional restrictions can protect legislators from subjection to temptations of this kind, it is undoubtedly true that the safeguards against special legislation which have been so generally adopted greatly reduce the occasion for such temptations. If the moral tone of legislative bodies appears to be higher now than it was fifty years ago, the difference may be partly attributed to the fact that it is not now so easy for a legislator to go wrong.

It has already been intimated that the constitutional provision to the effect that no special law shall be enacted when a general law can be made to apply is an invitation to litigation. Many courts have been called upon to determine whether or not the occasion existed for the enactment of a special law. In State v. Boone County Court (1872) 50 Missouri, 317, the court declined to answer this question, and took the ground that the prohibition in the Constitution was merely a rule of action for the guidance of the Legislature and that the Legislature is itself the sole judge of the necessity for special legislation. This decision of the Missouri court, which was followed by the courts of some other States, produced so much dissatisfaction that in 1875 an amendment was added to the Constitution of Missouri declaring that whether or not a general law could be made to apply was a judicial question. A similar declaration is found in the Constitutions of Minnesota, Alabama, Kansas, and Michigan. In many States, however, the courts arrived at this result without any such express provision in the Constitution. In such instances they have not hesitated

to examine the facts and to determine independently whether or not a general law could be made to apply. This question has arisen with particular frequency in the interpretation of legislative acts providing for the classification of cities. Under the form of grouping all the cities of a particular kind in one class and applying a general law to the whole class, some legislatures have tried to enact a special law which would apply to only one city. Sometimes this has led to absurd results. Should the Legislature of Massachusetts enact a law applying to all cities having more than 500,000 inhabitants, it would affect only the city of Boston, but such a law would be upheld as reasonable classification in any State in the Union. On the other hand, when the State of Pennsylvania enacted a law applying to all cities of eight thousand inhabitants situated at a distance of more than twenty-seven miles by the usually travelled road from the county line in a county of more than sixty thousand inhabitants, the court held that this was classification run mad, and declared that the act in question was special legislation contrary to the Constitution.1

Great as have been the evils which have accompanied special legislation, it must be recognized that it is a mode of action which is often indispensable, and that there is nothing inherently evil in its nature. Hence it is for statesmen and lawmakers to devise some way of lessening its injuries while preserving its benefits. Several such methods have been suggested.

The English system of provisional orders is probably the simplest mode of providing for special legislation. By conferring upon such bodies as the Local Government Board, the Board of Trade, and two or three others, the power to issue orders which shall have the force of law until set aside by Parliament, the supreme legislature has rid itself of much of the great burden of special legislation with its accompanying evils, while at the same time it reserves to itself complete and final authority. Some of the benefits of this system might be ob

1 Commowealth v. Patton (1878), 88 Pennsylvania, 258.

2 See Bulletin No. 30, The English System of Provisional Orders.

tained without the adoption of the system as a whole. In fact, although it is not generally recognized, we already apply the principle of the system to much of our local government. The ordinances which our cities and towns are authorized to issue are in most States nothing more than provisional orders which can at any time be set aside by the State Legislature. The fact that the Legislature seldom exercises this power does not argue that it does not exist. It would require but little modification to make the ordinances issued by our local governments conform exactly to the English system of provisional orders.

One step which has been taken in many of the States as a means of reducing the evils of special legislation is the requirement that there shall be notice of application for such action. A large part of the unfortunate consequences which have come from special legislation can be attributed to the fact that it was carried through the two houses within a short space of time, and before the public could be informed of the nature of the measure which was pending. As early as 1805 Thomas Paine tried to persuade the people of Pennsylvania to place in their Constitution a requirement that no special legislation or private act should be adopted until the expiration of a certain period of notice, but it was not until thirty years later that North Carolina led the way by inserting such a provision in its Constitution. A similar requirement is now found in the constitutions of several States, while others have attempted to attain the same result by statute. It would seem, however, that there can be no assurance that the publication of notice will attract any attention to the pending measure. The number of legislative proposals is so great and the attention of men is so occupied with their immediate concerns that it is easy for a private bill of a most reprehensible character to escape public attention. Such a measure would be more likely to be exposed if it were first enacted by a subordinate legislative body, such as a board or commission, and were then submitted to the Legislature of the State for ratification and approval.

Many of the difficulties which attend special legislation would disappear if we accepted the distinction so commonly made in Europe between legislation and administration. In France, for

instance, there is the fullest recognition that legislation deals with the determination of policies, while administration is charged with providing the means for putting those policies into operation. It is for Parliament to enact statutes, but it is for the President or other executive officers to supply the details which make the statute an effective act of government. In America vast power has already been conferred upon executive officers to issue administrative orders, but the situation would be much improved if there were frank acceptance of the fact that the business of government has grown to a point where legislation should be sharply separated from administration, and the law-making body should no longer attempt to cover in its enactments every possible detail of every situation which can arise. Two of the most far-sighted of living statesmen, both of whom are not only students of politics but have had wide experience both as legislators and as executives, have expressed themselves upon this point. In 1908 Lord Bryce said:

Every modern legislature has more work thrown on it than it can find time to handle properly. In order, therefore, to secure sufficient time for the consideration of measures of general and permanent applicability, such matters as those relating to the details of administration or in the nature of executive orders should be left to be dealt with by the administrative department of government, under delegated powers, possibly with a right to disapprove reserved to the legislature.

On the same point Elihu Root has expressed himself as follows:

When a legislative body has more business to do than it can properly consider, there is only one avenue of relief, and that is a continual increase of delegation of power. What the legislature could readily have done fifty years ago, the legislature could not half do to-day, and it must delegate the other half to somebody else. That delegation of authority to subordinate officers or bodies that must exercise discretion formerly withheld from them, that must make rules and regulations upon matters formerly dealt with by statute, requires careful adjustment of governmental machinery, and we have not the machinery properly adjusted for the necessary process of government.