TENNESSEE NOTE.-The state-wide initiative and referendum for statutes has as yet no place in Tennessee institutions. The constitution of 1796 was not submitted to popular vote, but since that date all constitutions, amendments and questions of calling conventions have been passed upon by the electorate. Moreover, several of the commission government charters, which have been adopted by a number of cities, authorize the initiative and referendum for municipal ordinances.

Thus, the charter of the city of Jackson' provides that "Any proposed ordinance may be submitted to the Board of Commissioners by petition signed by the qualified voters of said city, equal in number to 25 per cent. of the votes cast for candidates for Commissioners at the last preceding general municipal election, with the request that said ordinance be submitted to a vote of the people, if not passed by the Board of Commissioners." If the ordinance is not enacted without alteration within fifteen days it must be referred to the municipal electorate.

Furthermore, "No ordinance passed by the Board of Commissioners, unless otherwise expressly provided, except an ordinance for the immediate preservation of public peace, health, or safety, and which contains a statement of its urgency and is passed by a unanimous vote of the Board of Commissioners, shall go into effect before twenty days from the time of its final passage, and publication in the daily papers published in the city of Jackson, and if during said twenty days, a petition signed by the qualified voters of said city, equal in number prescribed herein to be signed to a petition for the submitting of any ordinance to the people,-viz: 25 per centum, be presented to the Board of Commissioners the operation of such ordinance shall thereupon be suspended and it shall be the duty of the Board of Commissioners to consider such ordinance, and if it is not entirely repealed, the Board of Commissioners shall submit to the qualified voters the question of the repeal of such ordinance at an election to be held for that purpose." The general rule that the legislature cannot delegate its powers to the electorate obtains in Tennessee, but the constitution specifically authorizes such delegation in a few instances."

"Private Acts of Tenn., 1915, ch. 168, sec. 27.

8Wright v. Cunningham, 115 Tenn., 445, 91 S. W., 293 (1905).

'See II, 29; X 4. City charters are sometimes made dependent upon popular approval-e. g. that of Knoxville, Private Acts of 1911, ch. 498, sec. 46.

CHAPTER XII.

THE ADMINISTRATION OF THE LAW.1

151.

Changing
Conditions
and New
Problems of
Administra-

tion.

IN the Tennessee constitutional convention of 1834, Mr. Smith submitted a resolution as follows:2

Resolved, That an extensive and frequent exercise of the right of suffrage, is consistent with the principles of free government, and in order to secure a faithful discharge of the duties of public servants, and the requisite rotation in office, for a strong attachment to our institutions, no person shall be elected to office for life or during good behavior; but the tenure of all offices shall be limited to such a period of time, as sound policy may require and incumbents placed before the constitutional electors to stand for reëlection.

This resolution with its leading thought of popular control by means of frequent popular pronouncements upon the usefulness of all public servants and its secondary thought of giving numerous persons the opportunity to become attached to "our institutions" through personal participation in their functioning, depicts admirably the spirit of the naive democracy of its time-naive not in its concepton of underlying principles, but in its selection of methods. That attempted minute supervision by the great body of voters over minor officials still recommends itself to many has been shown by the discussion of the long and short ballots. That there still lingers a feeling of distinction from the fact of holding public office, which men prize and strive for, and, in their generosity, would see shared by many, is often made manifest;-very pertinently, for instance, in a candidate's recent advertisement that neither he nor any member of his

General References: Finley and Sanderson, The American Executive and Executive Methods; Goodnow, F. J.. Principles of the Administrative Law of the United States; Politics and Administration; Report of the efficiency and Economy Committee, Illinois, 1915; Government of the State of New York (Prepared by the New York State Department of Efficiency and Economy and the New York City Bureau of Municipal Research); Wilson, Woodrow, The Study of Administration, Political Science Quarterly, II, 197; Public Administration and Partisan Politics. Annals of the American Academy of Political and Social Science, whole No. 153.

2Convention Journal, p. 42.
3Supra, ch. 9.

family, the head of which was a civil war veteran, had ever sought office before."

Frequent appearance before the people to render an account of one's stewardship may undoubtedly have a salutary effect upon office holders. But if the people are indolent and careless in calling their servants to account or too much preoccupied with affairs of their own to be able to examine the records of candidates for reëlection, obviously there can be no benefit in frequent elections. The number of administrative officers has vastly increased as the demand for state activity and state supervision of private affairs has steadily grown. Consequently popular supervision has become more and more inadequate. Meanwhile, the character of administrative functions has changed." In the old and simple days when traditions were being formed in the United States, most public duties could be performed by any citizen of average capabilities. Today public administration calls for special and often highly technical information. Experts of all kinds must be utilized. The average intelligent citizen is no longer able to fill tolerably the great majority of administrative offices. In this changed condition of affairs has originated the present problem of the administration of the law.

152. Need for

Officials and

Organization.

The solution of the problem must be sought through various channels. Obviously the first necessity is for officials who either Qualified have or can acquire ability to fulfil adequately their official Adequate duties. Equally obvious is the necessity for such systematic coordination of administrative offices as will secure genuinely efficient work by the entire administrative department of the gov ernment.

The people can obtain more capable public servants in one of two ways. In the first place they are theoretically able to choose them at the polls with such care as to insure the election of those citizens who are best able to serve. Long tenure of office

Knoxville Journal and Tribune, March 16, 1914.

A different aspect of the question of frequent appearance before the people is seen in Machiavelli's statement that the stability of the state is preserved by granting opportunity for accusing public officials. Concerning this an English periodical once remarked,-"The benefit of such a provision is twofold. First, the salutary fear of the probable coming of a day of account will restrain the evil practice of some bad men and self-seekers; secondly, the legal outlet of accusation gives vent to peccant humors in the body politic, which, if checked and driven inward, would work to the utter ruin of the constitution." (Westminister Review, LXVI, 193; quoted, Wilson, Congressional Government, 275.)

Among the most important and most difficult of modern administrative functions is the adequate regulation of public service corporations.

153.

Civil Service.

154.

Situation in

may be given in order that expertness may be acquired and that public office may be more attractive to men of ability who would look upon public service as a career. In the second place, the people may choose the chief administrative officers-governors, mayors, etc., at the polls, and place upon them the responsibility of selecting all other officials. The relative merits of these two methods have already been discussed."

Minor officials and employes may be chosen according to merit demonstrated by competitive examinations. This method is gradually working itself into universal use for civil service and, indeed, is provided for in three constitutions.

The New York section, dating from 1894, provides that appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive,

and that "Laws shall be made to provide for the enforcement of this section."

According to Mr. Samuel H. Ordway, of the New York Civil Service Reform Association, this

provision of the constitution has worked satisfactorily and well; it is short and simple, and yet elastic; it embodies general principles and avoids details; it has been construed often by the courts, and its construction and meaning are definitely settled.1

In whatever manner appointed to office, continued efficiency usually requires that officials having long or permanent tenure of office shall be liable to removal by their superiors for inefficiency. Civil service examinations are less accurate tests than is actual practice in office. The latter should, it would seem, determine the tenure of one's position. Hence, it is unwise to make removal over-difficult.

Efficient administrative organization has been sought through the study and investigation of special commissions recently ap Proposed Re- pointed for the purpose in a number of states. In Illinois, to

Illinois and

organization.

"Especially in ch. 9.

Cal., XX, 16; N. Y., V, 9; O., XV, 10.

"Civil war veterans must be given preference.

Proceedings of Academy of Political Science, V, p. 262 (1914). The proposed constitution of 1915 made no change,-XIII, 10.

take an excellent example, the report of the efficiency and economy committee shows that

the executive department consists of a Governor, Lieutenant-Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General, provided for by the constitution and elected by popular vote; and of more than a hundred other state officers, boards and commissions, created by statute, and in most cases appointed by the governor, by and with the advice and consent of the Senate."

In that state, as in others,

the number of State officers, boards and commissions has been rapidly increasing; and every session of the General Assembly sees the origin of new authorities. Less than a fourth of those now in existence were established before 1870; and more than a third of the present number have been created during the last decade. These executive departments, offices and institutions now employ about 6,000 persons and expend annually about $19,000,000.

The committee then goes on to say that this constant increase of administrative officials, without order and without plan, has resulted in enormous waste of money and energy and a deplorable lack of efficiency. Chief among the characteristic faults of the present arrangement are the failure to correlate the offices, the duplication of functions, ineffective supervision, the fact that offices with related objects are scattered among different cities or in different buildings of the same city, the lack of standards of compensation and of a budget system, inadequate accounting and insufficient advice from administrative departments to the legislature. Under these arrangements, finally, while the general public is deluged with printed reports, it fails to receive reliable information in digestible form as to the conduct of the State administration, and is unable to locate definite responsibility for negligence or misconduct in public business. Public opinion usually considers the Governor responsible for the conduct of the State government; but with the lack of effective executive control over the subordinate officials this opinion is not fully justified. At the same time, the popular conception of the Governor's responsibility, in the opinion of this Com

Interesting ac

Report of Efficiency and Economy Committee, 1915. p. 7. counts of efforts at administrative reform in several of the states are found in the American Political Science Review, X, 258; IX, 264, 273, 287; also see ib. 294, and 488.