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son why, in such cases, one government should not suffice for every requirement, vestiges of the old separation remain.” The Michigan constitutions ordains that
when any city has attained a population of one hundred thousand inhabitants, the legislature may organize it into a separate county without reference to geographical extent, if a majority of the electors of such city and of the remainder of the county in which such city may be situated voting on the question shall each determine in favor of organizing said city into a separate county.
California takes more advanced ground in the following clause, 9 —
City and county governments may be merged and consolidated into one municipal government, with one set of officers, and may be incorporated under general laws providing for the incorporation and organization of corporations for municipal purposes. The provisions of this Constitution applicable to cities, and also those applicable to counties, so far as not inconsistent or prohibited to cities, shall be applicable to such consolidated government.
Under this provision San Francisco performs the duties and exercises the privileges of both a city and a county, under one government. The same is true in Denver, under a special provision of the Colorado constitution."
County government, both actual and proposed, stands in interesting contrast to the governments of the states because of the absence of almost all suggestion of the separation of powers. The people have never feared their local governments and such powers as they have conferred upon them they have not thought necessary to guard with checks and balances. Unfortunately, however, efficient organization has likewise been neglected. Probably no state administrative problem today is of greater importance than that of correlating the numerous county officials into a đefinite working system that can adequately transact local business and perform such state functions as may be delegated to it.
Gradually they will, no doubt, be eliminated.
1XX. 1. For an interesting account of the problems of a county containing several rival cities and a more or less antagonistic rural population, see The Government of Alameda County, California, by M. L. Requa, The Annals, op. cit.,
TENNESSEE VOTE.- More than one-eighth of the constitution of Tennessee is consumed by its provisions for counties, county officers and county finances.?
The legislature is given power to authorize the counties to levy taxes, under the restrictions of the constitution applying to state taxation, and under such additional regulations as may be prescribed by law. The assent of three-fourths of the qualified voters of a county must be obtained to authorize it to loan its credit to or become a stockholder in any private enterprise. Clerks of the various courts, justices of the peace, constables and the sheriff, trustee, register, coroner and ranger are recognized as county officers and made compulsory for each county. For crimes and misdemeanors in office these officers are liable to indictment in such courts as the legislature may direct and, on conviction, to removal from office. Elections and the filling of vacancies are regulated. The division of counties into districts is prescribed and the establishment of new counties is lengthily provided for.
The governmental functions of the counties are entrusted chiefly to the county courts. The constitution of 1834 did not contain the words "county court" and in the constitution of 1870 they occur only once, in the final section, which forbids county offices to be filled otherwise than by the people or the county court. Yet because the court is in practice composed of the justices of the peace, who are constitutional officers and accorded certain constitutional functions, it has always been held that the legislature cannot abolish it and put in its place some other form of county government. The legislature may alter the number of civil districts—by which the justices are elected and so reduce the size of the court to the usual size of a commission. Though the legislature cannot destroy the county court? the latter has no inherent powers and so can perform only those functions expressly authorized by the legislature. In prescribing these functions the legislature is restrained not only by the general constitutional principle that it cannot delegate its legislative powers, but also by the constitutional provisions intended to prevent laws applying to only a portion of the state,
211, 28, 29; V, 5; VI, 13, 15; VII, 1, 2, 5; X, 4, 5; XI, 8, 17. 3See Acts of 1915, ch. 11.
Popularly elected county officials, both statutory and constitutional, are, of course, independent of the county court.
Pope v. Phifer, 50 Tenn., 682, declared invalid Acts of 1868, ch, 65, creating boards of commissioners for Madison and White Counties, appointed by the governor and having the powers of the justices in the county courts. This case is not good authority for the proposition that the legislature might not, for all the counties of the state, establish commission government. See Const. 1796, VI, 1.
estate v. Atkin, 112 Tenn., 603. Xor can it destroy a county,—James Co. v. Hamilton Co., 89 Tenn., 237. Burnett v. Maloney, 97 Tenn., 697. 'Cooley, Constitutional Limitations (1890 Ed.), pp. 137, seq.
The former restriction prevents the legislature from authorizing the counties to pass laws relating to their own affairs. Thus the county court can pass no fence, stock and road laws, which, if the varying wishes of the people are to be carried out, must be different in different counties. The constitution authorizes county tax levies and the courts have held that the county courts may be authorized to make appropriations for the ordinary and extraordinary expenses of government, but beyond this the counties have no legislative powers.
Local legislation outside chartered cities would, indeed, be a thing unknown in Tennessee did not the courts wink at the palpable evasion of the constitutional prohibition of laws "granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.” Induced by necessity, doubtless, the supreme court has held that any county may at some time be any size and that laws relating to counties of a specified number of inhabitants according to a given federal census or any subsequent federal census are such that any member of the community may be able to bring himself within them.
To a person accustomed to local self-government such as is exercised by the New England towns, the denial of local self-government in Tennessee seems not less ridiculous than thrusting upon the legislature the duty of making local enactments for each of the ninety-six counties of the state. In 1915 there were only four counties for which local laws were not passed."
2See Leeper v. State, 103 Tenn., 500.
See Hunter v. Justice8, 47 Tenn., 49 ; Shelby Co. v. Exposition Co., 96 Tenn., 653.
See Woodward v. Brien, 82 Tenn., 520.
Indebtedness is acknowledged to Dean C. W. Turner of the University of Tennessee Law School for suggestions relating to this note. Concerning the county court, see Caldwell, J. W., Local Government in Tennessee, Proceedings of joint meeting of the Bar Association of Tennessee and the Arkansas Bar Association, 1907. p. 173: Peale, W. F., The County Court in Tennessee, 23 Ten. nessee University Magazine, pp. 1 and 54.
REVISING THE CONSTITUTION.
FUNDAMENTAL law is no exception to the rule that all things 307,
Need for human change. Each succeeding generation has its own ideas Revision. as to what constitutes the fundamental in law,—an inevitable result as society finds its economic conditions and intellectual attainments altered with the passage of time, and a result that bears fruit in an ever-increasing number of amendments to the state constitutions. “I do not find a model in the world," wrote William Penn,a "that time, place, and some singular emergencies have not necessarily altered, nor is it easy to frame a civil gov. ernment that will serve all places alike."
No fewer than six of those state constitutions adopted during the revolutionary period, however, were entirely without stitutions. provision for alteration in any manner. Their framers were revolutionists and perhaps ignored the possibility that future constitution-makers might prefer legal rather than revolutionary change. On the other hand, four of the original constitutions and the New Hampshire constitution of 1784 included clauses authorizing the calling of constitutional conventions, and three others,* adopted before the close of the war, provided for constitutional amendment by legislative action. During the first sixty years of development only two states followed the example of the federal constitution to the extent of providing both for the calling of a convention and the adopting of amendments, but at the present time in every state except New Hampshire there is specific authorization for amendment on the initiative of the state legislature and three-fourths of the states contain directions for calling conventions. In several of the states
308. Early Con
General References: Dodd, W. F., The Rerision and Amendment of State
2 In the preface to his Frame of Government.
All except Ark., Conn., Ind., La., Mass., Miss., N. J., N. D., Pa., R. I.,
not providing for them conventions have nevertheless been held, but in Rhode Island the view is officially taken that this is not allowable.
Of the constitutions of the revolutionary period only those of Massachusetts (1780) and New Hampshire (1783) were formally submitted to the people for approval and not until the Connecticut constitution of 1818 was final decision upon amendments placed in their hands. But the principle that matters of fundamental law should receive the sanction of a popular vote of approval took root almost from the very beginning and with the triumphant democracy of the early nineteenth century became firmly established. It is now almost universally accepted in practice as well as in theory. Beginning with Oregon, in 1902, twelve states' have taken the further step of allowing the people, on petition of specified percentages of the voters, to initiate proposals for constitutional amendments and cause them to be submitted for approval or rejection at a popular election.
Notwithstanding the fact that historically revision by convention antedates amendment by legislative and, of course, by popular proposal, the latter two, as simpler methods, may appropriately be considered first.
The state constitutions show four distinct methods of legislative proposal,-(1) The Delaware provision that an amendment may be adopted by two-thirds vote of all the members elected to both houses of two succeeding legislatures, before the election of the second of which it must be published in three newspapers in each county; (2) Proposal by one legislature and ratification by the electorate, –allowed in thirty-one states, (3) the South Carolina® provision that an amendment may be proposed by vote of two-thirds of the members elected to each house of the legislature and, if approved by a majority of the
"See, supra, pp. 58-9, for the manner in which the Tenn. convention of 1870 as called in the absence of authorization by the existing constitution. 814 R. I., 649. Advisory opinion of judges of highest court.
Ariz., IV, Pt. I, 1 (1); Ark., V, 1 ; Cal., IV, 1; (olo.. V, 1; Mich., V, 1, XVII. 2: Mo., IV, 57; Neb., III, 1 ; Nev., XIX, 3; X. D., XV, 202 (1914); o. II, 1a ; Okla., V, 1; Ore., IV, 1.
2Ala., XVIII, 284 ; Ariz., XXI, 1; Ark., XIX, 22; Cal., XVIII, 1 ; Colo., XIX, 2; Fla., XVII, 1; Ga., XIII, sec. I, 1 ; Ida., XX, 1 ; 11., XIV, 2; Kan., XIV, 1; Ky., 256 ; La., 325; Me., X, 2, (Amend. 1914); Md., XIV. 1; Mich., XVII, 1; Minn., XIV, 1; Miss., XV, 273; Mo., XV, 2; Mont., XIX, 9; Neb., XV, 1; N. M., XIX, 1; N. C., XIII, 2; 0., XVI. 1; Okla., XXIV, 1; Oré., XVII; S. D).. XXIII, 1 ; Texas, XVII, 1; Utah, XXIII, 1; Wash.,' XXIII, 1 ; W. Va., XIV, 2; Wyo., XX, 1.