DIVISION II.

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THE STATE.

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CHAPTER I.--DIVISION OF POWERS.

    The powers of a state are divided into three sections, called departments. This is because the state government has three sets of duties to perform. These sets of duties differ so widely from each other that each can best be exercised by officers who do not have anything to do with either of the other sets of duties. In a monarchical government all these duties are performed by one man. This may be one reason why that form of government is so unsatisfactory, so unpopular. In a republican government like that of the United States and of the state of Nebraska, and in nations where there is a near approach to such a government, as in England, it is found by experience that each set of duties can best be performed by a separate and distinct set of officers. These three departments are called the Legislative, Executive and Judicial Departments.

THE LEGISLATIVE DEPARTMENT.

    This is the department that makes the laws. The word means "law-bringing," "law-bearing." The idea is that, as the legislature directly represents the people, and as the people are the source of all authority their will being law, as the will of the Emperor is the law of the empire--the enactment of laws is simply an expression of the will of the people, the putting of that will into words. In this sense, the legislature brings the law from the people and puts it into the form of statutes.

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   In a more general sense, the legislature determines what rules are best for the people of the state, what regulations are wisest, and how these rules and regulations shall be enforced, and by what officers. "Law" is but another name for rules and regulations. All this involves a determination of how much the individual rights of the citizen may be encroached upon under the constitution, in order to benefit all the people. The constitution provides by what state officers the general affairs of the state shall be administered, but it wisely leaves to the legislature the duty of regulating the smaller matters of local government. Nearly full control of cities, villages, counties, schools, and of the ordinary rights and duties of officers and of citizens, is given to the legislature.

   In addition to the duty of making the laws, the legislature, as the immediate representative of the people, not only in the election at the polls, but in the selection at the caucuses, also, is given a sort of oversight of other state officers of both departments, and it may impeach any of them for official misconduct. This department is the most important and the most powerful one in the State government.

THE EXECUTIVE DEPARTMENT.

   This department has control of the enforcement of the laws, except such as are enforced through the judicial department. There are but two methods of enforcing the laws. One is through the judicial department; and the other is by the militia, which is under the control of the governor. When any member of the executive department meets resistance in the discharge of his duties he must resort, in ordinary cases, to the courts, and, in more serious cases, to the militia. This department ought to have been called the administrative department. The officers in this branch of the state government have

 

charge of the administration of certain duties. The laws of the state are executed or enforced by certain other officers specially designated for that service. In a certain sense, the executive officers, with the governor at 'their bead, are representatives of the state in its corporate capacity.

THE JUDICIAL DEPARTMENT.

   To this department is entrusted the duty to interpret the laws and even the constitution itself; to determine when the acts of the legislature are in conflict, or accord, with the constitution; when the action of other officers are such as the laws mean that they shall be, and when the actions of individuals or corporations are violative of the laws, or of the rights of others. As different people disagree as to the meaning of the words of the constitution and of the laws, and of contracts, and as these disagreements lead to trouble, this department settles all such troubles. It is like the umpire, in baseball; it decides points of dispute. The courts do not entertain cases that do not contain actual conflict of interest. They do not decide points that are referred to them out of curiosity.

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QUESTIONS.

   1. Into how many departments are the powers of the state divided?
   2. Why are those powers so divided?
   3. What is the legislative department?
   4. What does "legislative" mean?
   5. What are laws?
   6. What is the executive department?
   7. How are laws enforced?
   8. What other name might be given to this department and why?
   9. What is entrusted to the judicial department?

 

 CHAPTER II.--THE LEGISLATIVE DEPARTMENT.

   The general powers and duties of this department have already been stated in the preceding chapter. It remains for us, then, in this chapter, to consider the constitution of this department, and the methods by which it exerts its powers.

DIAGRAM OF THE LEGISLATIVE DEPARTMENT,

The Legislative Department.		The Senate.		President. Secretaries. Officers. Committees. Speaker.
		The House.		Clerks. Officers. Committees.
		The Governor.
		The Lieutenant-Governor.

   Its Members. This department consists of four parts:

   1. A senate.
   2. A house of representatives.
   3. The governor.
   4. The lieutenant-governor.

   The senate is composed of thirty-three members, elected for two years. For the election of the senators the state is divided into thirty-one districts. Two districts have two senators each, all the other districts have but one senator each. Many of the districts comprise more than one county. The house of representatives is composed of one hundred members, elected for two years, and from fifty-nine districts.

   Qualifications of Members. The members of the senate and of the house must be voters. They must also reside in the districts from which they are chosen, and must have resided therein one year before the day of

 

election. No person who holds an office under the authority of the United States, or of this state, which pays a living compensation, (excepting township officers, justices of the peace and a few others,) can be elected to either house. This is for the reason that persons cannot do two things at once, and they should not draw two salaries at the same time. In order to protect the state against the action of unscrupulous members who might have a money-interest in the passage of any law, it is provided that no person can be a member of either house who has any claim against the state, or who has any interest in any contract with the state.

   Privileges of Members. Members of each house cannot be arrested during the session of the legislature, nor for fifteen days before the session, nor for fifteen days after its close, for any cause except for treason or other felony, or for a breach of the peace. No member can be made liable, in any civil action, or in any criminal proceeding, for any words spoken in debate in the legislature. These provisions are in order that the members may not be interrupted in the discharge of their duty by interested parties, and that they may be free from annoyance for petty offenses, and that they may be fearless in the exposure of the misconduct of others.

   Sessions. Each regular session begins at noon on the first Tuesday of January of the odd-numbered years, 1885, 1887, &c. There is but one session in two years, although the Governor may call a special session whenever, in his judgment, the public interest demands it. When a special session is called, the proclamation must state the objects of the session; that is, what public interests require the session; and the legislature cannot take up any business that is not specified in the call excepting, of course, its own organization, which is a right inherent in all legislative bodies.

 

   Organization. At the time fixed for opening the session, the secretary of state calls the house to attention, and presides until a presiding officer is elected from its own members. The lieutenant-governor is the president of the senate, by virtue of his office. After the presiding officer is selected, each house elects such other officers as it may need.

   Quorum. A majority of the members elected to each house forms a quorum; it makes the number required to do any business. If there is not that number present, at any time, the house can do no business except to send for the absent members, or to adjourn.

   Rights of Each House. Each house determines for itself the rules and regulations that shall govern it in the transactions of its business, and chooses its own officers. It is the sole judge of the election and qualification of its own members. Any dispute as to the election of members is settled by the house to which the persons claim to be elected.

   Expulsion of Members. Neither house can expel a member except by a vote of two-thirds of all the members elected to that house. After a member has been expelled, his constituents may re-elect him, but he cannot be again expelled for the same offense.

   Power to Protect Itself. Each house may protect itself from the disorderly conduct and contemptuous behavior, in its presence, of persons who are not members of that house, by arrest and imprisonment. Such imprisonment cannot usually exceed twenty-four hours, for one offense.

   Journal. Each house keeps a journal, or record of its proceedings, and the same is published at the close of each session. Each house may have a secret session, at its discretion, and the proceedings of such session need not be published.

 

   How Members Vote. At the request Of any two members, the "yeas and rays" may be called and recorded on the vote on any question. This consists in calling the name of each member who votes "yea" or "nay" and the vote is so recorded. Upon the passage of a bill or of a joint resolution, the vote must be by yea and nay and must be recorded. All votes given in each house are open; by viva voce, the living voice.

   Prohibition of Power. In the constitution there are certain prohibitions upon the power of the legislature. The Bill of Rights, as we have seen, contains a great many prohibitions upon the power of the state. These apply equally to each branch of the state government, and to each officer thereof. And when the Bill of Rights makes a positive demand for certain things to be, or to be done, it is a prohibition upon the contrary being or being done. Thus, in section 13 of the Bill of Rights, it says that all courts shall be open; it thereby prohibits the state or any department or officer thereof, or even any individual citizen of the state, closing the courts, whether by law, by official action or by individual effort. In addition to these general prohibitions, there are others laid expressly upon the power of the legislature.

   Local Laws. Section 15 of Article III prohibits the passage of local, or special, laws upon twenty-four different enumerated subjects of legislation. Experience has shown that special legislation is the greatest and surest source of corruption in this department of the government, at the same time that it introduces inequalities into the government of the state and gives special privileges where the privileges ought to be free and open to all.

   Others. (1). In addition to the prohibitions upon the passage of special laws, the legislature is forbidden to grant extra compensation to any public officer, agent, servant or contractor of the state. This is a safeguard against

 

corruption and profligacy. The compensation of a public officer cannot be increased nor diminished during the term for which he was elected. If an officer resign and the compensation of the office be increased, he cannot be appointed to the vacancy after such increase. If a person is not well satisfied with the compensation of an office as to accept it, he should be so satisfied to the end of the term, or resign.
   (2.) The legislature cannot sell, mortgage or otherwise dispose of the salt springs, nor donate any public lands to any railroad company, nor to any other corporation or individual
   (3.) The legislature is forbidden to authorize or to legalize lotteries, gift enterprises or games of chance, in any manner or form, or under any pretense.
   (4.) The legislature cannot form a county so that that county, or the one from which it shall be taken, shall have a less area than four hundred square miles, and no county can be divided without the assent of the voters interested.
   (5.) No corporation can be created, nor can the charter of one be extended, changed or amended, (except those of state institutions for purposes of charity, education, punishment or reformation), by any special law. In all cases, the constitution says, where a general law can be made applicable, no special law shall be enacted. This leaves very narrow limits for special laws.

   Officers. Each house has a presiding officer. In the house of representatives, this officer is called the speaker; and in the senate, the president. The lieutenant-governor is president of the senate by virtue of his office, and votes in case of a tie only; but the senate always elects a president of the senate, who acts during the absence or disability of the lieutenant-governor. The senate has a secretary, and the house a chief clerk, and each has sev-

 

eral assistants, as many as each house deems best. In addition to these, each house has a sergeant-at-arms, a janitor, a postmaster, a mail carrier, and often other subordinates.

   Rules. The constitution lays down some rules for the passage of bills through the legislature; these rules, the laws of parliamentary practice generally adopted as a whole by legislative bodies, and the rules and regulations specially adopted by each house for its guidance, determine the methods and forms by which laws are made. At the beginning of each session, after organization, each house adopts the rules that it desires, and both houses adopt certain rules to govern their joint action.

   Committees. These are appliances for assisting in the work of legislation. Each house provides in its rules for the appointment of as many committees as it may need. The house has over thirty, most of which consist of seven members; while a few, the most important, consist of nine members, each. The senate has nearly an equal number of committees, consisting of a less number of members. To these committees, each house refers bills. Each committee is named for the subject of legislation over which it has jurisdiction. To the committee on "Finance, Ways and Means," are referred all bills that pertain to raising revenue. A committee on "Appropriations" considers all bills that relate to the disbursement of government funds. So, committees on Agriculture, Education, State Institutions, Cities, Counties, Railroads, Military Affairs, have referred to them all bills, petitions, memorials, &c., relating to those subjects. No committee can take jurisdiction of a bill or other paper until it has been referred to it by its house.

   Bills. Each house may originate bills on any subject except one; the senate cannot originate bills appropriating the public funds; such bills must originate in the

 

house. The house is the largest body; its members are elected from the smallest districts, wherefore it is presumed to represent, more fully and accurately, the people of the state. But any bill passed by either house may be amended by the other. A bill is the name given to the draft of a law when it is introduced and before it becomes a law by the signature of the Governor, or otherwise,--then it is called an act, law or statute.

   Enacting Clause. The enacting clause is that part of the law that gives it force. It must be in this form: "Be it enacted by the Legislature of the State of Nebraska." If this clause is wanting, the bill cannot be a law, and its passage is a nullity.

   Title. A bill can have but one subject, and that must be clearly expressed in its title. This is a precaution to prevent deception and confusion. It enables members to know what subject the bill actually contains, so that they may give it special attention, or not, as they may be interested in that subject. So a person--lawyer or judge--looking up the law upon a certain subject need but to read the title of an act in order to be sure that the body of the act does or does not contain what he desires to find. If a bill undertakes to amend a section or an act, it must repeat the whole section or the whole act just as it will read after it is amended. The title reads somewhat in this form: "A bill for an act to appropriate money to defray the expenses of the state government for the two years ending March 31, 1885;" or, "A bill for an act to amend section six of an act to provide a system of revenue, approved March 1, 1879."

   Method of Legislation. When a bill is introduced, it is read in full by the clerk. If no one objects, it is ordered to be read a second time on a subsequent day. If any one does object, a vote is taken on the motion to read it a second time; if the motion is lost, the bill is re-

 

jected; if the motion carries the bill goes over till another day. It is very seldom that any one does object to a second reading of a bill. The second reading takes place on a subsequent day, as the constitution provides that bills shall be read three times on three separate days.

   Upon the second reading, the bill is ordered to be printed and referred to a committee, unless some one objects to that. If any objection is made, a vote is taken as before. After a bill is printed, a copy is delivered to each member of that house, and the committee to which it has been referred consults about it. If the committee approve the bill as it reads, they report it back to the house as approved, and recommend that it be passed. If the committee approve the substance of the bill but find it defective, they amend it to suit, or prepare a substitute for it, and report to the house with a recommendation that the house pass the bill as amended, or the substitute. If the committee do not approve the bill either in substance or form, they so report and recommend that the bill do not pass. The committee, when it makes its report, can state the reasons for its approval or disapproval, or it need not do so.

   After the committee has reported, the house may adopt or reject the report. If the report is favorable to the bill and the report is adopted, the bill is then ordered to be sent to the committee of the whole. If a report is unfavorable to the bill, a rejection of the report also sends the bill to the committee of the whole, or may send it back to the same committee for farther action, or to another committee. If the report is favorable, and the report is rejected, that usually kills the bill, although it may still be recommitted to the same or to another committee. In case of such recommittal, the house usually instructs the committee what to do with the bill. The house may favor a bill which the committee may not

 

favor; in which case, the house will send it to a select committee made up of members of whom a majority are friends of the bill.

   Committee of the Whole. This committee consists of the whole house, but the formalities and rules of the house are cast aside so that a bill or report can be discussed, or amended, in less time and more fully than can be done in the house. It is simply a committee of the house, and, although composed of all its members, it has no organization but a chairman, who is designated by the presiding officer of the house. Whatever action it takes is entirely informal and advisory, and must be reported to the house for approval. Usually, a bill is perfected in a committee of the whole and is passed by the house just as it comes from that committee.

   Sometimes the house reverses the action of the committee. Some members will not vote, in the house, where their votes will be recorded, as they voted in the committee where no record is kept. In this committee, amendments to the bill are proposed and voted upon, either adopted or rejected, and sometimes a substitute for the whole bill is adopted.

   Action of the House. After the committee of the whole has perfected a bill, it reports to the house the result of its action, just as any other committee does. The house may then vote to adopt the report or to reject it as a whole. Usually, however, a yea and nay vote is taken in the house upon each amendment proposed by the committee. Other amendments may also be proposed and adopted. In the committee of the whole, and in the house after its return from that committee, are the stages for amending a bill. Usually it is perfected in those stages. When the house gets through with the bill, at this stage, it orders it engrossed for a third reading, after which it cannot be amended without sending it to a com-

 

mittee. To engross a bill is to write it out just as if has been left by the house, putting the amendments in their proper places. This copy of the bill is compared with the original copy of the bill and of the amendments by a proper committee.

   After Engrossment. After a bill has been ongrossed, it is so reported to the house, when it is called up for a third reading and passage. It is read in full, just as it has been amended, by the clerk, and a vote taken at once upon its passage, by yea and nay. In each house it requires a majority of all the members elected to that house to vote for a bill in order to pass it.

   Upon the passage of a bill by one house, the clerk certifies upon it the fact and date of its passage and delivers it to the other house. In that house the bill takes the same course already described, and is subject to amendment and rejection as before.

   Amended by the other House. When a bill is amended by the second house, the bill and amendments must be sent back to the house from which the bill came. If that house agrees to the amendments, it so votes and the bill is passed. If that house does not agree to the amendments proposed by the other house, it so votes and reports its action to that other house. That house may then drop the amendments and pass the bill as it first came, or it may insist upon its amendments. In this last case both houses usually appoint committees who confer and make a compromise. When passed by both houses, the bill is enrolled, signed by the presiding officer of each house while the house is in actual session and sent, by a committee of the house in which it originated, to the Governor.

   The Final Stage. The Governor is one of the executive officers, but the constitution provides that he shall approve bills before they can become laws, except as stated hereafter. When the Governor approves a bill, he

 

writes upon it "approved," and signs his name as Governor, with the date of approval. He reports such approval to the house where the bill originated. If he does not approve the bill, he returns it to the house wherein it originated, with his objections in writing. If the house is in session, the bill must be returned within five days (Sundays excepted) from the time he received it. If the legislature is not in session, then the bill and objections must be filed in the office of the secretary of state, within the same time. If the Governor does not make one of the returns of the bill and of his objections within the five days, the bill becomes a law without his approval. If the legislature is in session when the Governor's objections are returned to it, the objections are entered at large upon the journal and the house proceeds to consider the objections. The house may adopt the Governor's objections and amend the bill to overcome them, or it may pass the bill over the objections. For this purpose three-fifths of the members elected to the house are necessary. If the bill is passed over the veto, by the one house, it must then be sent to the other house for its action. The concurrence of both houses, by a three-fifths vote, is required to pass a bill over the Governor's veto.

   In the matter of appropriation bills, the Governor may veto any particular item thereof in the same manner that he may veto any other bill, and may approve the residue of the bill. Such vetoes may be treated like other vetoes, by the legislature.

   When Laws take Effect. It would be unjust to have laws take effect before people in distant sections of the state, and who might be seriously affected by them, know what the laws contain, or that such laws have been passed. Hence, the constitution requires that, except in extraordinary cases, laws shall not take effect for three calendar months after the adjournment of the legislature that

 

passed them. A statute provides that such laws shall take effect on the first day of June after such adjournment, unless the law otherwise provides. When the nature of the case seems to require that a law take effect before the expiration of the three months, the fact that it shall so take effect at an earlier day must be stated in the bill. In this case, the bill requires two-thirds of all the members elected to each house to pass it.

   Publication. In order that the people may have an opportunity to see what laws have been passed, the laws are published in book form as soon after adjournment as possible. These laws are distributed to all the officers of the state at the public expense, and copies are sold to such individuals as may desire to purchase.

   Impeachment. The legislature has the sole power of impeachment. As this is a judicial proceeding, it will be considered in its appropriate place, in the chapter on the Judicial Department.

   United States Senator. At the last regular session before the expiration of the term of a United States senator from this state, the legislature elects his successor. For this purpose, on the second Tuesday after the organization of both houses, each house votes separately for that officer. In case no one man has the majority of all the votes cast in each house, both houses must then meet in joint convention every day and take one ballot each day, until an election is made. It requires a majority of all the votes cast to elect.

   Adjournment. Neither house can adjourn for more than three days without the consent of the other house. All adjournments for a longer time than three days, and at the end of the session, must be made by a concurrent or joint resolution. If there is a disagreement of the two houses as to the matter of adjournment, with reference to the date of the adjournment, as well as

 

to the time to which the adjournment shall extend, the house that first moves the resolution of adjournment certifies all the facts to the Governor and he is authorized to adjourn the legislature from such a date to such a date as to him shall seem best.

CONSTITUTIONAL COMMANDS.

   This chapter on the legislative department would be incomplete without a statement of the constitutional requirements with reference to certain subjects of legislation. When the Bill of Rights says that certain things shall be, these commands enforce themselves to the extent that no legislation is required to enable the courts and officers to take notice of and to enforce them. With some other commands of the constitution, it is different; the legislature must pass laws for their enforcement. These commands are as follows:

   (1.) Census. In 1885, and every ten years thereafter, the legislature shall provide for a census of all the inhabitants of the state. After this census and after the United States census, the legislature shall divide the state into senatorial and representative districts and shall apportion the members of the senate and of the house among such districts according to the number of the inhabitants of each district. In this apportionment, Indians not taxed, and officers, soldiers and marines of the United States army and navy are not to be counted.
   (2.) Appropriations. The appropriations for the expenses of the state government shall be made by each legislature, to extend to two years from the close of the fiscal, or calendar, quarter in which the legislature adjourns.
   (3) Vacancies. Provisions shall be made, by a general law, for filling such vacancies in the constitutional offices as are not provided for in the constitution.

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   (4.) Free Schools. The legislature shall provide for the free instruction, in the common schools of the state, of all persons of the state between the ages of five years and twenty-one years.
   (5.) Distribution of School Funds. Provision shall be made for an equitable distribution of the income of the school fund, among the school districts of the state.
   (6.) Equal Taxation. The legislature is required to provide a sufficient revenue for the expenses of the government, in all its departments and grades, in such manner that every person and corporation shall pay a just proportion of the taxes according to the value of his or its property or franchises. That value shall be ascertained in such manner as the legislature shall direct.
   (7.) Funding State Debt. The constitution instructed the legislature to provide, at its first session, a law for the funding of the state debts, including treasury warrants and the floating indebtedness, at a rate of interest not exceeding eight per cent. This command of the constitution was obeyed by the legislature of 1877.
   (8.) Auditing Claims. The legislature shalt provide for the examination, by the auditor of public accounts, and approval by the secretary of state, of all claims against the state, before their payment, and for an appeal, by those aggrieved by the decision of those two officers, to the district court.
   (9.) County and Township Officers. The legislature shall provide for the election of such county officers and township officers, as may be necessary.
   (10.) Township Organization. The legislature shall provide, by general law, for a township organization of counties whose voters desire it.
   (11.) Railroads. The legislature shall pass laws, with suitable penalties, enforcing the provisions of section 1, article XI, concerning railroads and their reports to the state officers.

 

   (12.) Regulating Railroads. The legislature shall pass laws to correct abuses and prevent unjust discrimination and extortion in all charges of express companies, telegraph companies and railroad companies.
   (13.) Militia. The legislature shall determine by law what persons shall constitute the militia of the state.
   (14.) Suits against the State. The legislature is required to provide the manner and in what courts the state may be sued.

CONSTITUTIONAL GRANTS.

   There are also several special grants of authority to the legislature, by the constitution, which do not amount to commands. This authority may be exercised by the legislature or it may not be exercised. The following are the subjects of legislation that come under this head.

   (1.) Judicial Districts. The division of the state into judicial districts may be changed at the will of the legislature, and the districts and judges may be increased in the legislative discretion. But no increase, or any change in the boundaries, of districts can be made so as to shorten the term of any judge of a district.
   (2.) Votes of Militia. Laws may be made providing that voters, in the military or naval service of the United States, and not in the regular army or navy, may be allowed the exercise of the right of suffrage.
   (3.) Reformatories. Reform schools for children, under the age of sixteen years, may be established.
   (4.) Cities and Villages. The legislature may vest in cities, villages and towns, the authority to make assessments upon property for local improvements and to levy and collect taxes for corporate expenses.
   (5.) Regulate Railroad Charges. The legislature may establish maximum rates of charges for the transportation of passengers and freight on the railroads of the State.

 

 MISCELLANEOUS.

   (1.) The constitution provides that no person who is elected to the legislature shall, during the term for which he was elected, receive any civil appointment from the governor and senate.
   (2.) The courts of other states have rather uniformly held that the legislature is the judge of its own duty in respect to obedience to affirmative commands of the constitution, and that there is no means for compelling a legislature to pass a law on any subject. The only redress that the people have, when the legislature refuses to do its duty, is to displace the members by the election of others. There is little doubt that the same rule would be followed by the courts of this state.

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QUESTIONS.

   1.  What constitutes the legislature?
   2.  What is the composition of the Senate? of the House?
   3.  What are the qualifications of members?
   4.  What are the privileges of a member?
   5.  How frequent are regular sessions? When are special sessions called, and who calls them?
   6.  How does a house of the legislature organize?
   7.  How many members constitute a quorum?
   8.  What are the rights of each house?
   9.  What is the rule in regard to the expulsion of members?
   10. What power has a house for its own protection?
   11. What about a journal?
   12. How do members vote?
   13. What Is the first prohibition upon the power of a legislature?
   14. What other prohibitions are named?
   15. What officers has a house?
   16. What rules govern the houses in their action, and who makes them?
   17. Why are committees appointed?
   18. What is said of bills?
   19. What is an enacting clause?
   20. What must the title of a bill embrace?
   21. Describe the method of enacting laws?

 

   22. What is a committee of the whole? What is its action?
   23. Describe the action of the house after a bill is returned from a committee of the whole?
   24. What is the engrossment of a bill?
   25. What is done after engrossment?
   26. What is done after the passage of a bill?
   27. What is the course when a bill is amended by the other house?
   28. Describe the final stage by which a bill becomes a law. Describe the course of action upon a veto.
   29. When do laws take effect?.
   30. What about the publication of laws?
   31. What body has the power of impeachment?
   32. Describe the stages of the election of a United States senator.
   33. Who adjourns a session?
   34. What is the constitutional command in regard to census?
   35. In regard to appropriations?
   36. In regard to vacancies?
   37. In regard to free schools?
   38. In regard to distribution of the school funds?
   39. In regard to taxation?
   40. In regard to funding the state debt?
   41. In regard to auditing claims?
   42. In regard to county and township officers?
   43. In regard to township organization?
   44. In regard to railroads?
   45. In regard to regulation of railroad charges?
   46. In regard to militia?
   47. What special grant is given to the legislature concerning judicial districts?
   48. Concerning votes of members of the militia?
   49. Concerning reformatories?
   50. Concerning cities and villages?
   51. Concerning railroad charges?
   52. What does the constitution prohibit concerning appointments of members of legislature to other offices?
   53. How can a legislative duty be enforced.

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CHAPTER III--EXECUTIVE DEPARTMENT.

   The executive or administrative department of the state consists of the following officers: Governor, lieutenant-governor, secretary of state, auditor of public accounts,

 

treasurer, attorney-general, superintendent of public instruction, and the commissioner of public lands and buildings. There are also two boards composed of portions of these officers, namely: board of public lands and buildings, and the board in charge of the educational lands and funds. These will be treated of hereafter.

   Some Qualifications. The Governor and lieutenant-governor must be thirty years of age, and must have resided in the state two years previous to their election.

   No one of these officers, except the lieutenant-governor, is eligible to any other state office during the period for which he was elected. The value of this provision is not apparent. It would seem that any officer, if competent and meritorious, might safely be promoted if a vacancy should occur.

   The treasurer may be elected for two consecutive terms, but he cannot be elected for a third term until two years have passed since the close of his second term. This provision is not uncommon as applied to officers who handle the public funds, as it enables a complete examination of that officer's books, and compels a counting of the funds in his hands. A frequent examination of the books and funds of public officers, who are the custodians of public money, is one of the best means to prevent defalcations.

   The Governor. The chief officer of this department is the Governor. The constitution says that he "shall take care that the laws be faithfully executed." Neither the constitution nor the laws point out the means by which he shall secure the faithful execution of the laws. In the instance of a county officer, where the law said that he should do a certain act but did not point out the means, the supreme court decided that he might use any means that would accomplish the purpose. It is probable that the same court would sustain the principle

 

of that decision in its application to this duty imposed upon the Governor by the constitution.

   Makes Appointments. The Governor issues commissions to all the officers of the executive department, and of the judicial department, and to the military and naval officers. He nominates, and, by the consent of the senate, he appoints all officers which the constitution and laws do not otherwise provide for, and he may remove, for incompetency, neglect of duty, and malfeasance in office, any officer whom he appoints. He also fills vacancies in most of the offices in the executive and judicial departments.

   Message. At the beginning of each session of the legislature, at the close of his term of office, and at any other time when the legislature may request, the Governor must send a message to the legislature, giving it such information about the public business, and recommending such laws, as he may deem best for the state. In his message, at the beginning of the session, he must present an estimate of the amount of funds needed for the expenses of the state government for the next two years.

   As we have already seen, the Governor may call extra sessions of the legislature whenever, in his opinion, the public interests demand it.

   Adjourns the Legislature. If the two houses of the legislature disagree as to the time of an adjournment, the house that first moves the matter certifies all the facts to the Governor; he may then adjourn it to such a time as he thinks best, or sine die; without date.

   Approves Bills. As has already been explained in the chapter on the Legislative Department, the Governor is a part of that department, so that, ordinarily, no bill can become a law unless it receives his approval.

   Calls for Reports. Before the regular session of the legislature, each officer of this department, and the head of

 

each state institution, sends to the Governor a report of his office or of his institution. These reports are transmitted by the Governor to the legislature with his message. The Governor is also authorized to require from any officer of this department, and from the head of any state institution, information in writing and under oath, upon any subject officially pertaining to that office or to that institution.

   Pardons. The Governor may pardon any person who has been convicted, under the laws of the state, of any crime, except treason and cases of impeachment. He may also commute any sentence to a less harsh or ignominous one. He may grant reprieves at his discretion. He must report to the legislature his whole action in these matters.

   Military Rank. The Governor is the commander-in-chief of the military and naval forces of the state, when they are not called into the service of the United States, and he may call them out at anytime to help execute the laws, to suppress insurrection and to repel invasion.

   Lieutenant Governor. This officer is the presiding officer of the senate, and as such is, in some sense, a part of the legislative department. In case of the death, impeachment, failure to qualify, resignation, absence from the state, or other inability of the Governor to perform the duties of his office, the lieutenant-governor succeeds as chief executive of the state, with the same rank, title, powers, emoluments, rights, privileges, and duties as the Governor bad enjoyed, or may enjoy. When presiding in the senate, he votes in case of a tie, only.

   Secretary of State. This officer has charge of all the papers, documents, laws and resolutions of the legislature after its adjournment, and he publishes the laws and proceedings of that body. He countersigns all com-

 

missions issued by the Governor, and approves claims allowed against the state by the auditor.

   The Auditor. The auditor of public accounts is the general accounting officer of the state. He keeps all the books, vouchers and documents relating to the accounts, contracts, revenue and fiscal affairs of the state. Before the regular session of the legislature, he sends to the Governor a digested statement of the condition of the finances, of the expenditures of the last two years, and an estimate of the revenue needed for the next two years, and. such plans as he may form for diminishing the expenses, increasing the public credit and promoting the efficiency of the revenue system.

   He audits, adjusts and settles all claims against the state, if such claims arise under authority of any statute; draws warrants against the state treasury for the payment of such claims; keeps the accounts with all county treasurers and settles with them annually.

   The Treasurer. This officer receives the money of the state, and pays it out on the warrants of the auditor. He reports to the legislature the condition of the treasury, at each regular session.

   The Attorney General. This is the law officer of the state. He appears for the state, in the supreme court, in all criminal cases and in all civil actions in which the state has any interest. He prepares drafts of contracts, and gives opinions on matters of law for any state officer, whenever requested.

   Superintendent of Public Instruction. This officer is at the head of the educational interests of the state. His powers and duties are given fully in the chapter on Education.

   Commissioner of Public Lands and Buildings. He is the chairman and executive officer of the board of public lands and buildings. This board consists

 

of this officer, the secretary of state, the treasurer and attorney general, and it has general supervision of all the public buildings and lands of the state, except the lands and buildings belonging to the common school fund, or to any of the educational institutions. The charge of the board extends to the state capitol, the penitentiary, the asylums for the blind, the deaf and dumb and the insane, the reform school, to the salt lands and salt springs, and to all the grounds connected with those buildings. All the, records, papers, documents, lists of lands, titles and other matters relating to these lands or buildings are kept in the office of the commissioner.

   Commissioners of Educational Lands and Funds. The Governor, secretary of state, treasurer, attorney general and the commissioner of public lands and buildings constitute this board for the control of the lands donated to the state, by the United States, for the common schools, for the state university and for the agricultural college. The records, papers, documents and lists pertaining to these lands, are kept in the office of the commissioner of public lands and buildings, who is the chairman and executive officer of the board.

   Board of Public Printing. The auditor, treasurer and secretary of state constitute a board for awarding the public printing for the state. In November, of the year next preceding the regular meeting of the legislature, the board advertises for proposals for the state printing. In December, the bids are opened and the awards are made to the lowest and best responsible bidder. The award is for the two years next following. This printing includes the reports of the state officers and of the public institutions, the bills, journals, and laws of the legislature, and the blank books and other printing needed by the state officers and public institutions.

   Board of Railroad Commissioners. The attorney-general, the auditor and the secretary of state,

 

constitute a board of railroad Commissioners. Each commissioner appoints a secretary, and one secretary is selected from each congressional district. The board has a general supervision of all railroads operated by steam in the state. It inquires into the cases of violation of the state laws by railroads, inspects the condition of the roads, track and rolling stock, and the manner of their management, with reference to the safety, interest and convenience of the public. The railroad companies must annually report to the board such facts concerning the cost of construction, cost of operating, volume of business, etc., as the board may require, and the board may examine all the books, papers and documents of the railroad companies, and examine any officer or employe of the companies under oath. When complaints are made to the board of unreasonable charges or unjust discrimination, which the companies refuse to rectify, the board may prosecute.

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QUESTIONS.

   1.  What officers constitute the executive department of the state government?
   2.  What special qualifications are required of the Governor and lieutenant -governor?
   3.   Who are ineligible to state offices?
   4.  What prohibition is placed upon the re-election of state treasurer, and why?
   5.  What is the special and chief duty of the Governor?
   6.  What appointments does he make?
   7.  What about the Governor's message
   8.  What reports may he call for?
   9.  What is the law about pardons?
   10. What relation has he to the militia?
   11. What are the duties of the lieutenant-governor?
   12. Of the secretary of state?
   13. Of the auditor of public accounts?
   14. Of the treasurer?
   15. Of the attorney-general?
   16. Who constitute the board of public lands and buildings and what are its duties?

 

   17. Who constitute the board in charge of the educational lands and funds and what are its duties?
   18. Who constitute the board of public printing?
   19. What are the duties of the board?
   20. Who constitute the board of railroad commissioners?
   21. What are the duties of that board?

 

CHAPTER IV.--JUDICIAL DEPARTMENT.

   The third department of the state government is the judicial. The judges of the supreme court, and of the district courts, are elected from the lawyers of the state, who have had long experience in the practice of the profession, and who are known to be learned in the law. The supreme court is the apex of the judicial system of the state. This system consists of the justices of the peace, constables, police judges, judges of the county courts, judges of the district courts, district attorneys, reporters, clerks and sheriffs, and the judges of the supreme court, clerk and reporter; the court of impeachment, clerk and reporter.

DIAGRAM OF THE JUDICIAL DEPARTMENT.  

Judicial Dep't.		Court of Impeachment.		Judges. Clerk. Reporter.
		Supreme Court.		Judges. Clerk. Reporter.
		District Court.		Judge. Clerk District Attorney. Reporter. Sheriff.
		County Court.		Judge. Sheriff. or Constable.
		Justice Court		Justice. Constable.
		Police Court.		Judge. Police Officers.

 

   Powers of the Courts. The different courts do not all have the same power; that is, they do not all have the right to try suits of the same amount, nor suits about the same matter. But all the judges and justices of the peace have the right to administer an oath or affirmation in any matter; to take acknowledgements of written instruments, like deeds and mortgages; to perform a marriage ceremony, and to act as a peace officer; that is, to take measures to preserve the peace, by causing the arrest of those who disturb the peace in their presence. In most other respects the different courts have different duties, and different powers.

   Police Judges. This officer has the exclusive right to try all the cases of violation of city ordinances, and he also hears criminal cases for offenses against the state laws, when the offense is committed inside the city limits, and if the crime could be heard by a justice of the peace. The penalties which police justices may inflict cannot be more than a fine of one hundred dollars, and imprisonment in the county jail for three months.

   City marshals, police officers, constables and sheriffs may act as executive officers of police courts, and serve papers or make arrests. Juries are not called in these courts, unless specially demanded by the accused. The jury consists of six voters, selected as described in the section on procceedings in justices' courts.

   Justices of the Peace. It has already been stated that two justices of the peace and two constables are elected in each precinct and in each township. If a precinct or a township contains a city, the law modifies that statement. Cities of the first class elect three justices and three constables. For this purpose, the city council divides the city into three districts, and each district elects one justice and one constable. In cities of the second class, two constables and two justices are elected in each ward.

 

   A justice of the peace has the right to try actions where the amount sued for does not exceed two hundred dollars, and the right to try criminal offenses when the fines may not exceed one hundred dollars, or the imprisonment in the jails three months. When crimes are committed in the county, the punishment for which may be more than one hundred dollars and the imprisonment more than three months, the police judge and the justice of the peace may hear the evidence, and, if the evidence makes a probable case, the prisoner may be bound to appear at the next term of the district court for trial.

   A justice of the peace has not the right to try a suit for damages, for assault and battery, for malicious prosecution or slander, suits against officers for misconduct in office, nor suits on contracts for real estate, nor any suit where the title to real estate maybe in issue. Constables and sheriffs are executive officers of the justices' court for the service of papers and the arrest of accused persons.

   The County Court, in its civil and criminal jurisdiction, is an enlarged justice's court. It may try civil suits, where the money or personal property is involved to the amount of one thousand dollars. It may try or hear criminal actions the same as a justice of the peace.

   When a court has authority over a matter, and no other court has that authority, that is called "exclusive jurisdiction," because other courts are excluded from that jurisdiction. When two or more courts may try the same matter or case, that is called "concurrent jurisdiction," because the jurisdiction of them all run along together. Concurrent means "running together."

   The jurisdiction of justices of the peace and of county courts, over civil actions below two hundred dollars, is concurrent, and the jurisdiction of county courts and of the district courts in actions over two hundred dollars and

 

below one thousand dollars is concurrent. When a man has an action, which he can bring into two or more courts, he can choose the court that suits him best.

   The county court has exclusive jurisdiction in several matters:

   (1.) When persons die leaving property, the county court has control of the property until the debts are paid and the property that is left can be distributed. If the deceased person leaves a will and appoints a person to dispose of the property, the court has control of the whole matter to see that everything is done as the will directs. If the will does not name any one to execute the will, the court appoints one. If a persons dies without a will, the court appoints a person, called an administrator, to dispose of the property for the payment of the debts, and to distribute what is left among the heirs.
   (2.) When a person who is a minor, that is, less than 21 years of age, has property of his own, the court appoints a guardian for him, and has control of the guardian to see that the property is well cared for until the minor reaches the age of 21.
   (3.) When persons with property are insane, or are too old, or too ill, to manage it themselves, the court will appoint a guardian to have charge of the property and to have the care of the person of the insane, aged, or sick person, and the court has control enough to prevent waste or bad usage of the person or property.
   (4.) If a person with property is a spendthrift, and is wasting his property by excessive drinking, gaming or other debauchery, a guardian may be appointed to take care of his property and person.
   (5.) When parties are bankrupt, that is, when they cannot pay all their debts, and they want to have all their property sold to pay as much of their debts as it can pay, they make an assignment for the benefit of their

 

creditors. The county court has charge of this, and makes proper orders to the assignee in regard to the sale of the property and the payment of the debts.
   (6.) Whenever it is desirable that any person should adopt the child of another person, written application is made to the judge of the county court, who hears the application, takes testimony, if needed, and issues orders in conformity with the interests of all parties.
   (7.) The judge of the county court issues licenses for parties who desire to marry, authorizing them to be married inside the county. The officer or minister, who performs the marriage ceremony, must send to the court a certificate stating when and where he married the persons named. This certificate the judge keeps on file in his office.

   Constables and sheriffs are executive officers of the county court, as of a justice's court. The jury consists of six voters, and is called only when demanded by one of the parties.

   The District Court has exclusive jurisdiction in the trial of civil and criminal cases, where the amount sued for is above the amount of one thousand dollars, and when the punishment for the crime is more than one hundred dollars fine and six months' imprisonment, and in all cases where the title of land is in issue. This court has what is called "common law jurisdiction;" that is, the jurisdiction that the courts had in England under the common law. This extends to all subjects where the law does not forbid, both in civil matters and in criminal cases.

   This is called a court of record, because all the proceedings are in writing, and the court has a clerk who makes a record of all that is done in the court, and who has an office in which be keeps all the papers. The sheriff is the executive officer of this court, serves notices, makes ar-

 

rests, has charge of prisoners, takes and sells property, and obeys the lawful orders of the court.

   The prosecuting attorney appears as the attorney for the state in the prosecution for crimes, in the district courts, and in suits on bail bonds. He must also prosecute before justices of the peace, if he can attend to it.

   The judge of the district court appoints a reporter of ability and competency, who takes down, in short hand, all the testimony at trials in that court. These short hand notes must be preserved by him, and a transcript of them furnished to any one interested, upon request.

   In most cases, when parties who have suits before police judges, justices of the peace, or the county court, and who do not like the decision of the court or the verdict of the jury, they may appeal to the district court. Here the case is tried over again, just as though it had never been tried.

   Supreme Court. When parties are not satisfied with the decision of the district court, they can appeal to the supreme court in some kinds of actions, or go "on error" in other kinds of actions. When the suit is appealed to the supreme court, it is tried over again. Cases in error are those where the party thinks the district court has made an error in its decision on a law point. The party asks the supreme court to correct this error of the district court, and to send the case back to the district court for a new trial.

   Most of the business of the supreme court is the hearing of the suits that are taken up from the district courts. There are some classes of matters that can be taken to the supreme court, at first, and that do not have to go into the district courts, namely:

   (1.) Cases relating to the public revenue.
   (2.) All civil cases in which the state may be a party.
   (3.) Mandamus.--This is an application to the court

 

 for an order compelling an officer to do something that he ought to do.
   (4.) Quo warranto.--This is an action to find out by what warrant, or by what authority, a person holds an office--brought where it is alleged that a person has no right to an office that he tries to hold.
   (5.) Habeas Corpus.--An action brought by a person illegally deprived of his liberty.

   The decisions of the supreme court, and the reasons for the decisions, are always in writing, and are recorded by the clerk, and published by the reporter.

   Court of Impeachment. This court is not very often used. When any member of the supreme court is impeached, he is tried by a court composed of all the district judges of the state. When any other state officer is impeached, he is tried by the supreme court.

   To impeach is to accuse a person of misconduct, or bad conduct, in the discharge of his official duties. For crimes done by the officer, as an individual, he is tried in the criminal courts like other persons.

   What Courts are for. The courts are for two purposes:

   (1.) Civil, to award money or other thing to any person who has been damaged by the action of another, and to make orders in some cases prohibiting one person doing certain things that will damage another person.
   (2.) Criminal, to try persons charged with crime; to punish them if guilty and set them free, if innocent.

   In the civil department of the courts, there is no violation of a law, when the violation injures a person, but that such person may sue for compensation for such injury. There is no violation of a personal right, but that the person whose right is violated may sue for compensation. There is no injury which one man receives from another which may not be the subject of an action.

 

   If I am slandered, or beaten, if it has been of any pecuniary damage to me, I may sue for the amount of that damage. If a man encroaches upon my land and damages it, I may sue him for that damage. If a man unjustly accuses me of a crime, or illegally and maliciously imprisons me, I may sue him for the damage it does me. In most cases of malice or injustice, the law presumes that the action damages the person and he does not always have to prove actual damages in order to be entitled to a judgment. If a person owes me money which he neglects to pay, I may sue him for it. If, in selling me goods, or lands, which one warrants to be of a certain goodness, and they do not turn out to be so good, then I may sue him for the difference between the actual value and their value if they had been as good as he warranted them to be. It would take a large book that could contain a detailed statement of all the causes of a civil action.

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QUESTIONS.

   1.  State what the judicial system consists of.
   2.  What powers reside in all judges?
   3.  What duties has the police judge?
   4.  What officers execute the commands of the police judge?
   5.  What jurisdiction has a justice of the peace?
   6.  What officers execute the orders of a justice of the peace?
   7.  What jurisdiction has the county court?
   8.  Define exclusive jurisdiction and concurrent jurisdiction.
   9.  In what matters has the county court exclusive jurisdiction?
   10. Give the jurisdiction of district courts.
   11. What is a court of record?
   12. What duty has the prosecuting attorney?
   13. Who appoints the reporter and what does he do?
   14. Who may appeal?
   15. Who may enter the supreme court? and by what processes?
   16. In what matters has the supreme court original jurisdiction?
   17. What is mandamus?
   18. What is habeas corpus?
   19. What is quo warranto?
   20. What officers compose the court of impeachment?
   21. What are the two purposes for which courts are organized?

 

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