Reciprocal Legislation Author(s): Samuel McCune Lindsay Reviewed work(s): Source: Political Science Quarterly, Vol. 25, No.

3 (Sep., 1910), pp. 435-457 Published by: The Academy of Political Science Stable URL: http://www.jstor.org/stable/2141169 . Accessed: 16/05/2012 01:44
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of theUnitedStates,and even backwardness HE general statesof theUnion,in social of mostof theindividual as compared withthe leadingfederalstates legislation, Europe,is of western withthenations of theworldand notably comment. The real reasonsare difficult of frequent a matter nor are theyalwaysfully to explain to our European critics, understood by Americansociologists. They are not foundin nor in the lack of of industrial organization lowerstandards similarsocial problemsnor in the absence of humanitarian material said thatourabundant ideals. Abroadit is sometimes socialsurplus our hasteto get richand ourenormous resources, us indifferent to the waste of humanlife,and have rendered to in the handsof thoseimpotent have leftour governments social policiesof modern Europeanstatesmandevisethelarger of our legal instithe economic development shipand to direct The rootsof surface indications. tutions. These are,however, withour and constructively in dealingeffectively our difficulty much strike intheir complexity growing rapidly social problems democof our American and structure deeperintothe history underwhich manyof our settlers racies. The circumstances under whichtheydid came to theseshoresand theconditions tendedto thisgreatcontinent workof subjugating thepioneer indiself-reliant forgenerations offspring makethemand their and of alikeof all governmental regulation distrustful vidualists, social undertakings.' all co'operative its statesguardedmostjealously original Each of thethirteen from was the the and national Constitution separatepowers; and conof initiative in whicha minimum a compromise, start the person and the dailysocial and affecting trol in matters was given to thefederal government. lifeof thecitizen industrial on should this react unfavorably that policy It was inevitable of the pursuits agricultural thestates justas soon as thesimpler
ISee Seager, Social Insurance (New York, ig9o), Welfare." 435

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purand commercial earlydays gave place to manufacturing business the state boundaries. While transcended suitswhich or even international tendedto become national of thecountry agenciesgrewin and commercial in scope and the industrial power,our legislativeorgans failed to develop any corresweaker. This and thelaw becamerelatively efficiency ponding publicpolity;and and desirable of a normal is justthe reverse has been effected to the newsituation adjustment evena partial at times,our strained, have that fictions legal only through our respectfor law and made busiundermined constitutions, to law or antagonistic indifferent in this country nessenterprise to an extentthat long ago caused Euroand to publicrights peans to marvel. The attemptto findways and means to public controland to protect governmental effective establish nationalin scope,has been thechief business, in private rights duringthe both stateand national, taskof Americanpolitics, will resultin fundamental thisattempt past decade. Whether in the of the federalgovernment, changes in the character of policepowers;or whether centralization direction of greater in competing uniform legislation through action, by coioperative willbe able so to solve thepending states theindividual states, problemsas to retainsupremecontrolover all the matters reservedfor state action-these are still unsettled originally of greatmoment. questions not only among reformers There is a noticeabletendency, in thecountry, business enterprises butalso among the largest inconveniences to avoid the in order federal seek legislation to to the mandatesof many state businessaffairs of adjusting taskto get it a difficult finds legislatures.The social reformer stateand severalmoreterritorial his measuresbefore forty-six that his endswillnot bodies; and he usuallythinks legislative willfail be accomplished, or, at least,thatsomeof his purposes unless he has the assentof all to obtainpracticalrealization, in one bodies. He realizesthata low standard theselegislative standard to securea higher makesit moredifficult stateusually in like manor businessenterprise, in another. A corporation will legislation, ner,if it mustsubjectitselfat all to restrictive law a such fora federal law; because often expressa preference

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willpresumably be enforced willbearequallyon all competitors, be moresimple, moredirect and and will probably impartially, theendinview thantheenactments better adaptedto accomplish fedstatelegislatures. Moreover, of theseparate anyproposed thananybillintroduced receives erallegislation greater publicity and thereis better forthe intoa state legislature, opportunity of objections. If the great corporations which presentation interstate businessmustwatch extensive conduct proposedlegto defendtheirinterests, islationand be prepared it is natural their efforts that theyshould prefer to concentrate and to deal at Washington rather with the Congress thanwitha exclusively of legislative bodies. Manyinstances large number could be of largebusiness citedwherein recent yearsthe representatives have expressedpublicly interests a desirefor and commercial on subjects underthe present nationallegislation which, interof ourfederal fallprimarily if notexclupretation Constitution, within thedomainof stateaction. sively An interesting movement in the oppositedirection is found in theeffort to secureuniform statelegislation uponmatters of whichstarted nationalinterest-a movement withthe suggesBar Association overtwenty tionsmadeby theAmerican years intheappointment of commissioners ago andwhichhas resulted all of thestates, from nearly meeting together annually forthe drafts of bills to be presented purposeof discussing in their state legislatures.Some progresshas been made, respective and a great deal of painstaking work has been done by able lawyers. The resultsthat have been securedin theenactment of laws dealingwith negotiableinstruments, uniform bills of etc. and the of still results lading promise greater along similar linesare encouraging.Withthesingle of thesubject exception and divorce, of marriage the state commissioners on uniform laws have,forobviousreasons, dealtwithsubjectsuponwhich thereis little controversy.Social legislation, which concerning there is always a very great difference of opinion,has not to thema promising of effort.The recent field appeared action of the commissioners, at their annual however, conference in Detroitin August, I909, when they appointeda committee a uniform on childlaborto report statute on thatsubject, indi-

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to trytheirpresentmethodin the field willingness cates their years'discussion of twenty butthefailure of social legislation; towards progress appreciable to bring about any and effort and divorceseems to marriage regarding legislation uniform and methodsat the disposalof indicate that the machinery lawswill at bestyieldveryslow on uniform thecommissioners legislation. Eitherwe must and meagerresultsin industrial of the increase towards tendency and irresistible face a definite and towardsthe larger of thefederalgovernment thepowers of legisuse of all of thepowersit nowpossessesoversubjects ignoredor dealtwithverycaulationwhichit has heretofore or we mustfindsome additionalmethodof securing tiously, in statelegislation. uniformity greater that on uniform legislation It has been assumedin discussions pracstatesmustneedsbe had before theassentof all forty-six maywell be can be secured. This assumption ticaluniformity of in the lightof recentstudiesand investigations questioned develAmericanindustrial underlying conditions the economic it is true of trusts and corporations, opment. Withthe growth is of thebusiness of the country percentage thatan increasing commerce on by persons engagedin interstate carried directly of interstate but competition; and subjectto all the conditions is whoselocation truethatthereare fewindustries it is likewise either transportation determined by conclusively not pretty or a speciclimatic advantages access to rawmaterials, facilities, as allytrainedand skilledlabor force; and it is equallytrue, conthat thesefavoring industries, themostimportant regards areas geographical are to be foundwithin verydefinite ditions of theentire United boundaries thepolitical with notcoextensive States. the practicalworkwho seeksto understand The economist the industo study finds it necessary business ingsof American the or in groupsof establishments conducting triesseparately, industrial same industry. These can be plottedin definite by areas,whichdo notcoincidewiththepoliticalareas defined of stateboundaries. It is thuspossibleto carveout a number industrial states,each made up of parts of several political is found to play statesof the Union,in whicha given industry

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an important part. If,forexample, we study theglassindustry, we find that it playsan important part in thebusiness of the people in onlyfivestates and a minorr6le in perhapsthree other states, so that our glass state extendsover onlya relativelysmall part of the area of the United States. In like manner, the business of cottonmanufacturing mightwell be in twoindustrial plotted areas,one madeup of the contiguous of fouror fivesouthern and theotherof three territory states, or fourNew England statestogether withone or two middle states, both areas havinginteresting relations in the matter of interstate competition.In eitherof these instances, uniform the interests of the industry legislation affecting in question could be worked out scientifically aftera carefulinvestigation of conditions a comparatively small number within of states, and it wouldnotbe necessary to consider thedifferent economic conditions and thewidely to be foundin the varying opinions otherstatesof the Union. It is accordingly a fair question a methodof securinglegislation whether thatwould enable all partiesinterested to concentrate theirattention upon conwithin such restricted areaswould not be productive ditions of a and moreequitable than discussion results greater of thesame of the whole people,even if questionsby the representatives thefederal government had,or weregiven, powerto deal with thequestions at issue. well be tested in dealing The methodheresuggested might of childlabor. At thefourth withthequestion annualmeeting of theNational ChildLaborCommittee, heldinAtlanta, Georgia, in January, writer I908, the present proposedthatthatorganiof seeking zationshould trythe experiment from states within the chiefindustries industrial definite which areas,comprising or reciprocal childlabor,concurrent conemployed legislation, in itsoperation actionby all of thestates tingent upon similar industrial in particular to thecomgroups. This was proposed as a tentative mittee working program. It was pointed out,on if such one that could be the hand, reciprocallegislation or restrict childlabormoreeffectively securedit wouldcontrol and possibly in the thanwholly independent varying legislation separate states; and, on the otherhand,thatsuchconcurrent

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statelegislation wouldnotbe open to theobjections so strongly theproposednational urgedagainst legislation, whichsought to in interstate prohibit the transportation commerceof goods of goods made by madeby childlabor,justas theimportation inthe existing laboris prohibited tariff laws.z convict There are nowin existencemanynationalorganizations of and scope to the NationalChild Labor Comcharacter similar whichtheseorganizations mittee. The publicpolicies represent realizedonlythrough whichis opposed can be fully legislation business. The AmericanAssociation by privatecompetitive of Labor Legislation, the NationalHousing forthePromotion the NationalConsumers Association, League,whichseeks the womenand children, of working theNational better protection of Tuberculosis forthePrevention and theNational Association of strong, PublicHealthLeague are a fewillustrations popular, numerous social organizations and increasingly whichare useful halls. In all of these makingtheirpowerfelt in legislative theprogram above outlined-thesecuring of legisassociations whichshall become operalationin each of a groupof states tive when accepted by all the states in the group-may be as possibly the mostpromising of consideration worthy lineof effort. In orderto appreciatehow far such reciprocal legislation meansof securing morerapidprogress might provean effective it is necessary to examinethenature of the in sociallegislation, businessinterests make to legal regulation which of opposition of social interests. fortheprotection business manreflects business his environment The American of individualismin an exaggerated degree: he desires,beforeand howabove all else,to be let alone. He has come to realize, as he can,that the ever,and to accept the factas graciously to day of absolutelaisser faire is past. He submits willingly and regulation, a great deal of governmental so long inquiry and imparas he feelsassuredthat it bearsequally,uniformly all other his On the on the moment tially competitors. hand, is whathe calls " strike thata projected measure he thinks leg1 See proceedings of NationalChild Labor Committee, I9o8 and i9i0.

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islation," or that it represents a forward movement in standards in one state not likelyto be followed immediately in others and therefore quite likely to disturbor redistribute the points of industrial advantage themoment, especially, whenhe realizesthat he may be placed at a disadvantage in competitionwiththose doing businessin otherstates-he at once, and not without some color of justice,makes vigorousprotest. Indeed,so confident are Americanbusiness corporations of their powerto control pricesand to passon to theconsumers any increased costs,thattheypay little attention to added burdenswhichnewlegislation, standpassed in response to higher ardsof protection demandedby employees or consumers, may imposeupon them, so longas theseburdensrestequallyupon all engagedin the same lineof business. At a hearingbefore a committee of the New York legislature, on a bill fixing the maximum of hoursperweekduring women number which might work in factories, the counselfor the textile manufacturers inwagesand opposedthebill on the ground that thedifferential working timewhich would result, as comparedwithPennsylstateswherea longer vaniaandwithsouthern weekwas working to then be ruinous their business. He said that allowed, would whom he represented wouldbe gladto go toWashhe andthose and favor, as a national whichthey ington law,thesamemeasure as a state law. In likemanner theglassmanufacwereopposing until a bill of New Jersey wereable to defeat, turers recently, in thatstate, workby boys undersixteen to prohibit night by that thedifference inwagesnecessary to employ explaining boys of theglass on their shifts woulddrivemany oversixteen night wherethe law makesa special plantsto locatein Pennsylvania, exemption, applicableto theglass-manufacturing business, perto workat night. At the time the mitting boysoverfourteen the same arguwas enacted, Pennsylvania exemption precisely of the Senate committee in ment was used by the chairman chargeof thebill-who by theway,was at thesame time the of thestate. fortheleadingglass manufacturers attorney had been appliedin If theprinciple of reciprocal legislation of thesecases,thecontroverted clause in thebill or, if either as to give theentire billwould have been so drawn necessary,

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a completeexpression of the legislative will in the premisest stating definitely what the legislature deemed expedientand what standardit wishedto see adopted,provideda similar standard thatwouldequalize the competitive effects of theact on industry shouldbe adoptedin another stateor in a number of otherstatesspecifically designated. The clause or bill so drawn would have leftthe handsof the legislature complete and perfect in form as a law; but it would have contained an expressprovision thata specified clauseor section of the law, or theentire law,shouldbecomeoperative onlyuponproclamation by the governorthat the contingency upon whichits operation was madeto depend, namely, theenactment of a similar statute in theotherstates named,had been met. Under legislation of thischaracter, based upon previous investigation and accuratescientific plotting of the industrial area affected, there wouldbe no anxiousinterval of adjustment busibetween nessinterests in different states; and the newlaw,whenit became operative, would apply equally to an entireindustry or groupof industries. Besides givingpromiseof greatersuccess in meetingthe of businessinterests, opposition in so faras suchoppositionis based upon an honestapprehension thatthe lowerstandards in otherstates existing willembarrass thismethod competition, of dealing with the problemsof industrial would legislation serve other useful purposes. Societies suchas those aboveenumas wellas all labororganizations erated, and otherassociations interested in the promotion of thewelfare of special classes, would be compelledto make preliminary of the investigation areas to be affected and theeconomic results to be produced by their proposals. How much more surely, wouldthedisthen, cussionof humanitarian legislation turn upon issuesof broader policyand of larger statesmanship, if theconsideration of the almighty dollarcould be thus minimized or eliminated! And when a policyrequiring the elimination, of as far as possible, competitive considerations in proposals has forsocial legislation becomeestablished, howmuchless temptation willbe to there use legislation to further private business interests. It is of courseevident that, in orderto bring aboutcomplete

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reciprocity between states within a given industrial area,and to giveeffect to a tacitagreement to eliminate some factor, such as, let us say,theemployment of children undersixteen years of age or of women formorethantenhoursa day,it wouldbe necessary to maketheoperation or enforcement of a statute to that effect in one statedependent of a similar upontheadoption measurein one or moreother states. This raisessome interestinglegal questions withrespectto constitutional limitations upon conditionalor contingent legislation. It is desirable, to examinebriefly therefore, of thecourts theattitude towards conditional laws. A sufficient number of bothfederal and statelawshave been subjectedto judicial review to show,in general, howan act or a partof an act whicha legislature wishesto make contingent in itsoperation or uncertain, upona future certain fact, mustbe in orderto conform drawn to constitutional An requirements. exact formula which wouldmeetthe requirements in all of the statescannotbe given. It wouldalwaysbe necessary to draw such an act or clausewithgreatcare,havingin viewtheconstitution and the decisionsof the courtsin theparticular state in whichthelaw'is to be enacted. The generalprinciple to be is clear,namely, observed, however, thatthelegislature cannot delegatelegislative powerexcept in cases specified in theconbut has powerto pass an act to takeeffect stitution," upon the of somefuture certain or uncertain, happening event, in which, itsjudgment, of thelaw. affects theexpediency In federallegislation this principlehas been frequently applied and sustainedby the SupremeCourt,fromthe Brig Aurora case,2decided in I813, to Field v. Clark,3 decided in The BrigAurora Case arose under the embargoand I892. non-intercourse acts of I 809 and I 8I0. Sectioni i of the act
of March
i, I8o9,

provided

thePresident that ofthe United States is authorized, be,andhe hereby in case either France orGreat Britain shallso revoke or modify her
I The Constitution of New York provides fora voteof the electors whena debt is to be incurred and forbids the legislature to do morethanproposesuch a law. 2

7 Cranch,382.

3 I43 U. S. 649.

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shall cease to violatetheneutral edicts,as thatthey of the commerce UnitedStates,to declare the same byproclamation; after whichthe trade suspendedby thisact and by the act laying an embargo maybe renewed with thenation so doing. Section 4 of the act of May i, i8io, provided that in case either GreatBritain or France shall,beforethe third day of Marchnext, or modify so revoke her edicts,as thatthey shallcease to violatethe neutral of theUnitedStates, commerce whichfact the President of theUnitedStates shalldeclareby proclamation, and ifthe othernationshall not withinthreemonthsthereafter so revokeor modify her edictsin like manner, then . . . [certain sections specified]shall . . . be revived. The presidentissued several proclamationsunder the two acts; and one of the questions raised in this case was whetherthis was not an executive exercise of legislative power. The court ruled: "We can see no sufficient reason why the legislature should not exercise its discretionin revivingthe act of March I, I809, either expressly or conditionally,as their judgment should direct." In Field v. Clark, Justice Harlan sustained the decision in the Brig Aurora case and cited a long list of Congressional acts whose enforcementin part or in whole or whose operation has of the presidentor executive acts depended upon proclamations of the secretaryof the Treasury. The tariff act of March 6, I866, and also that of I890, in almost identical language, gave to the secretaryof the Treasury power to suspend the prohibition of the importation of neat cattle and of the hides of neat cattle when in his judgmentsuch importation did not tend to spread contagious or infectious diseases; and the act of March 6, i866, also provided that thePresident of theUnitedStates, whenever in his judgment the importation ofneatcattleand thehidesofneatcattlemaybe madewithoutdangerof the introduction or spread of contagious or infectious diseaseamongthecattleof the United States,may,by proclamation, declaretheprovisions of thisact to be inoperative, and thesameshall be afterwards and of no effect from and afterthirty inoperative days from thedate ofsaid proclamation.

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acts and the maxof all the tariff provisions The reciprocity law of of the existingtariff rateschedules imumand minimum who the president, of proclamation by effective 9gogare made providedfor of contingencies to the existence certifies thereby will by Congress; and the of the legislative in thedeclaration bestowal of such power has been held not to be a delegation this questionthatwas power. It was precisely of legislative raisedin Field v. Clark,and it was discussedat lengthin Justice Harlan's opinion. The case was an action broughtby MarshallField and CompanyagainstJohnM. Clark,thecolof dutiescollected on lectorof the portof Chicago,forrefund act of Octoberi, 1890. underthe tariff imported merchandise becausesection of thelaw was questioned The constitutionality tofix under certain circumstances power president the 3, giving of the was claimedto be a delegation the ratesto be collected, power to levy taxes. JusticeHarlan quoted with legislative courtof approvalthelanguageof JudgeRaunyof thesupreme the delegationof legisbetween thedistinction Ohio, defining and the delegationof whichis unconstitutional, lative power, of a future upon contingency theexistence the powerto certify of thelaw in thejudgment of the legiswhichtheexpediency whichis a properexecutive duty. laturedepends,
of powerto make the is betweenthe delegation The truedistinction a discretion as to whatit shallbe, and involves law,whichnecessarily as to its execution, to be exercised and discretion authority conferring cannotbe done; to the of thelaw. The first and in pursuance under can be made.' no validobjection latter

was nota delegation The court heldthattheclause in question of legislativepower,althoughthe chief justice and Justice the case from a dissenting distinguishing Lamar filed opinion, thatsection3 of thetariff thatof theBrigAuroraand holding to thepresident discretion and act of I890 did give legislative unconstitutional. was therefore In thestatecourtsthereare at leastthreegroupsof cases in has been examined. of contingent legislation whichthevalidity free public establishing The oldest group deals withstatutes
I

I Ohio State,88. etc.Railroadv. Commissioners, Wilmington Cincinnati,

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of local taxesby local offithe levying schoolsand authorizing suchschools. Mostof the for of support the to provide cials to i 86o. A second dateprior thesestatutes regarding decisions the liquor lawsregulating grouphas to do withthelocal-option in the reviewed were judicially forthemostpart, these, traffic; considers The insurance-tax third group and eighties. seventies of a laterdate. The laws; the cases in this groupare mostly withreferenda. The acts first and second groupsdeal entirely was notquite indicated that the legislature underexamination be and thatit desired surewhat thewishof the people might onlylocal to consultthe electorate. Where such laws affect of the state,and are and subdivisions municipalities districts, in their operationupon theiracceptanceby madecontingent theyhave been generally voteof the people of suchdistricts, stateand thepeople of theentire affect upheld; butwherethey to thewhole electoralbodyof the state for apare referred unpronounced theyhave been uniformly proval or rejection, a delegation of on the groundthat theycontain constitutional, at issuein all threegroupsof power., The question legislative cases, the importof which is ably discussedby Dr. Oberof the referendum is really thatof theconstitutionality holtzer, of conditional legislarather than thatof theconstitutionality which we are at presentconcerned. In thesecases, tion,with of we findthe fullestjudicial reviewof thevalidity however, is incidental such review to the although legislation, contingent of of the largerand more complicated question consideration of thecourts of the reasoning A brief survey the referendum. cases2 will serve to show, inferentially at in the referendum of the courtstowarda contingent least,theprobableattitude
statute.
1 Ellis P. Oberholtzer, The Referendum in America,New York, I900. Cf. especiviiiand xiii. ally chapters fora reference which of legislationproviding 2Thereare of coursemanyinstances viz. school laws, localdo not fallwithin any of the threegroupsabove enumerated, laws. Statuteshave been passed locatinga option (liquor) laws and insurance-tax representaminority statecapitol(cf. Laws of California,I850, p. 412) or requiring (of. Laws of New Ilampshire, 1879, p. 365) and makingthe tion in corporations voteof the people. Otherinterof the law dependent upon an affirmative operation to the people, have been made bysubmitting character of a similar experiments esting

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In the first group, namely the school-law cases, the question before the various legislatures was whether taxes should be levied for the support of free public schools; and the legislaof deciding whether tures,wishing to avoid the responsibility the people were willingto tax themselvesfor this purpose, unof their enactments dertook in various ways to make the effect depend upon thevote of the people. Out of one of these laws, namely the Free School Act of March 26, I 849, in New York, arose the case of Barto v. Himrod.1 The provisions attacked were: as unconstitutional shall determine Sectionio. The electors byballotat theannualelecthisact shallor shallnot tion,to be heldin November next,whether becomea law. of the votes in the state shall be Section 14. In case a majority against thenewschoollaw, thisact shallbe nulland void,and in case
not a law, but a question de legeferenda.: the vote of the people has been taken in itsdeliberations bywayof advice,to guide the legislature uponsomedisputed queshave been thoseof contractlaborin state tion. Among questionsthus submitted prisons (New York, 1883); Chinese immigration (Nevada, I880); popular election of UnitedStatessenators C/. Oberholtzer, op. Cit., pp. 205-207. (California, 1892). Cf. also Supplement to the Public Statutesof Massachusetts, I889-I895 (Boston, I897), p. 1389; and the Opinionof the Massachusetts i6o Mass. Supple. Justices, have held thatundercertain ment,pp. 586 etseq. Some of our courts circumstances the operation of a law maybe made contingent voteof the people; upon a state-wide is ratheragainst so broad a view. Most of our courtsare of the but the tendency amountsto a delegation of legislative opinion that such a reference power,which is not valid. JudgeCooley,in his Constitutional Limitations (7th ed. 1903), pages 174 etseq., as follows: " One of the settledmaxims in constitutional sumsup the matter law is, to make laws cannot be delegated by that the powerconferred upon the legislature to any otherbodyor authority. Where the sovereign thatdepartment powerof the thereit mustremain; and bytheconstitutional statehas locatedthe authority, agency alone thelaws mustbe made untilthe constitution itselfis changed...- . But it is not alwaysessentialthata legislative act should be a completed whichmust statute, in anyeventtake effect as law, at the timeit leaves the handsof the legislative deand its takingeffect partment. A statutemaybe conditional, may be made to depend upon some subsequentevent. Affirmative legislation may in some cases be are at liberty to avail themselves adopted,of which the partiesinterested or not at In thesecases the legislative theiroption. act is regarded as complete when it formalities has passed through the constitutional necessaryto perfected legislation, its actually notwithstanding goingintooperationas law maydepend upon its subsequentacceptance." 18 N. Y. 483.

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a majority of all thevotesin thestate shallbe cast forthenewschool law,thenthisact shallbecomea lawand shalltakeeffect.... Chief Justice Ruggles, in delivering the decision of the court of appeals, said: terms of the ioth and x4thsections, Without contradicting theexpress to containedin it, in relation it cannotbe said that the propositions freeschools, wereenactedas lawby the legislature. Theywerenot had received a majority of thevotesof law or to becomelaw untilthey nor unlessthey rethe peopleat the generalelectionin theirfavor, fromthe unavoidably, ceived such majority. It results,therefore, of theact itself, thatit was the popular vote thatmadethelaw. terms it to the The legislature preparedtheplanor projectand submitted peopleto be passedor rejected. On this ground the act was held to be unconstitutional. This case was decided in June, I853. Three general termdecisions regarding the same statute were reviewed. In one of these, Johnson v. Rich", decided in i85i, the New York supreme court held, in the seventh judicial district, that the statute on the ground that "the full unqualified was constitutional, power to legislate for the state . . . necessarily comprehends the power to prescribe not only the time when an act shall become operative as a law, but also the event or condition upon which it shall become so," and that " the constitution nowhere forbids . . . the submissionof acts . . . to the people, fortheirapproval,and makingsuch approval the condition upon which the act shall become operativeas a law." In the two other supreme court cases, decided in the second and Thorne v. Cramer2 and Bradley v. Baxter,3the fifth districts, as a mere project of law; and statutewas held unconstitutional this latterview was sustained by the court of appeals in Barto v. Himrod, which has long been considered an authoritative decision. In a New Hampshire decision rendered in i88I, State v. Hayes,4 Chief Justice Doe examined the case of Barto
1 9 Barbour,68o. 4 6I N. H. 264.
2 I5

Barbour,I12.

3 I5

Barbour,122.

The statute underexamination in thiscase providedforminority in corporations. representation

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v. Himrod, and said that the New York court considered that the statuteunder consideration did not decide the question of expediency, which the legislature alone was competent to desettledthe question termine. Had the legislature definitively whether law undercertainconditions thereshould be a free-school to be determinedby the vote of the people, it is quite probable the court would have sustained it. He cited from the New York decision the followingsentences: A validstatute maybe passedto takeeffect uponthehappening ofsome future event certain or uncertain. . . . The eventor change of cira law maybe madeto takeeffect must cumstances on which be suchas in thejudgment of thelegislature affects thequestion oftheexpediency of thelaw-an eventon which theexpediency of the law,in thejudgmentof thelaw-makers, ofexpediency, depends. On this question the legislature must exerciseits own judgment definitively and finally. When a law is made to take effect uponthe happening of such an in effect if theevent declares thelaw inexpedient event,thelegislature ifit shouldhappen. Theyappeal to butexpedient shouldnothappen, no othermanor mento judge forthemin relation to its present or future and then expediency. They exercisethat powerthemselves, thedutywhich theconstitution perform imposes uponthem. Another school-law case, Bull v. Read,r was decided by the Virginia court of appeals in 1855. In this case the condition was not a state-widevote upon which the law was to take effect of approval, but the acceptance of an act by the people of a particulardistrict. The court, however,rested its decision sustaining the act chieflyupon the power of a legislatureto pass conditionallaws. The court said: It will be concededthat the legislature mayprovidethatan act shall of untilsomefuture date named,untilthehappening not take effect eventor in some contingency thereafter to ariseor upon somefuture of somespecified condition. The exigencies of the the performance laws of this and to government mayfrequently require character, deny so to frame theright them wouldbe unduly to qualify to thelegislature and impairthe powersplainlyand necessarily conferred,Accord1

13 Grattan, 78.

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ingly, we findthisa familiar feature in the legislation both of the national and stategovernments. The court cited, at this point,the Brig Aurora case, and continued: to be made to Nothingis morecommonthanforan act of assembly of the commence upona future date. The code of I849 is an instance kind. All acts of incorporation acts to takeeffect are, in effect, upon a future event,the acceptance of the incorporators; their forwithout thecorporate acts makconsent bodycannotbe created. The various ingsubscriptions on thepartof thestateto works of internal improvewhena certain shall be raisedby private ment, amount subscriptions, are ofthis character.. . . Nowifthelegislature maymaketheoperato happen,or tionof itsact dependuponsome contingency thereafter it must be forthem to judgeunder mayprescribe conditions, whatconor uponwhatcondition tingency theact shalltakeeffect. Theymust have thepower to prescribe think anythey proper; and if thecondishallfirst be given tionbe thata voteofapproval bythepeopleaffected itis difficult tosee why it maynotbe as good by theproposed measure, and validas anyother condition whatever. In the second class of cases, dealing with local-option liquor laws, at least two decisions of state courts of last resortare significant. In I854, in the case of State v. Parker,' the supreme court of Vermont sustained a law permittingthe localities to prohibitthe sale of liquor.2 Chief Justice Redfield based his opinion sustainingthe law on grounds similarto those taken in the followingyear by the Virginia court. He said: session whose is madeconCongress passeslawsalmost every operation tingent upontherevenue lawsofforeign or their states, navigation laws or regulations, and upon a hundred otheruncertainties more or less affected ofvoluntary by thewillor agency beings or communities; and in mostcases the suspension or operation of the enactments depends willand agency ofourexecutive ultimately uponthemere government; and of theperfect and constitutionality of such enactments regularity wasever made. Numerous no question otherinstances maybe found
1 26 Vermont, 357.

2This law, passedin 1852, was similarto one passed in Michigan,on whichthe supreme courtof thatstatewas equallydivided; cf. People v. Collins,3 Mich. 343.

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where statutes have beenmade dependent upon future contingencies, not onlyfor the timeof theircominginto forcebut fortheirvery made to depend vitality. . . . If theoperation of a law maybe fairly it makesno esthenin myapprehension upon a future contingency, so it be an of the contingency, sentialdifference whatis the nature equal and fairone,a moral and legalone,notopposedto soundpolicy, and so farconnected with theobjectand purpose of thestatute as not to be a mereidle and arbitrary one. The other local-option case which meritsnotice is the Pennsylvania case of Locke's Appeal,' decided in I 872. In an older Pennsylvania case, that of Parker v. Commonwealth,2 decided in I847, an act of I846, giving the citizensof certain counties power to decide by vote whether the sale of vinous and spirituous liquors should be continuedwithinsuch counties,and imposing a penaltyfor the sale of such liquors where a majority of the votes had been against such sale, was declared to be unconstitutionaland void. This case was overruled by the decision renderedin Locke's Appeal, which is in accordance with the views now held by most of our state courts. The statute under examination in this case was the act of May 3, I871, which provided for local option in the twenty-second ward of to the argumentin the case of ParPhiladelphia. In referring ker v. Commonwealth,Justice Agnew, delivering the opinion of the court,said: The assumption thattheact is not a law till enactedbythe peopleis the foundation of the argument, and withits fall the superstructure of this law is precisely vanishes. The character thatof hundreds of on somefuture which thelegislative willmakes act or others dependent factforitsoperation. To assertthata law is less thana lawbecause eventoract is to robthelegislature it is madeto dependon a future of a law is passed forthepublic thepower to act wisely whenever welfare, not yet developedor to things to a stateof affairs future and relating to be fully cannot known.. . The legislature impossible delegateits a power to makea law,butit can makea law to delegate to depower thelaw makes, termine somefactor stateof things or inuponwhich tendsto make,itsownactiondepend. To denythiswouldbe to stop
1 72

Penn. State, 491.

2 6 Barr,507.

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thewheelsof government.There are manythings uponwhich wise and useful legislation mustdependwhich cannotbe known to thelawmakingpowerand must,therefore, be subjectto inquiry and determination outside of thehallsoflegislation. This decision was rendered by a vote of three to two, Chief Justice Read and Justice Sharswood dissenting; but the case has been cited and approved in subsequent Pennsylvaniadecisions. The third group of cases comes nearer than either of the other two to deciding the precise application of the principleof conditional legislationwithwhich we are at present concerned. Several legislatureshave tried to impose upon foreigninsurance corporationsdoing business in theirrespective states precisely the same burdens of taxationwhich the states in which the foreign corporations are charteredor domiciled impose upon insurance corporations chartered by the state enacting the tax case in this group legislationin question. The most interesting is that of The People v. The Fire Association of Philadelphia,"
1 92 N. Y. 31 I. The following the decisionof the court,delivered quotationfrom of the earliercases. In particular, the by Judge Finch,containsan examination Bartov. Himrod. "This legislation is assailed, opiniondistinguishes thiscase from of thelegislative power,and first, upon the groundthat it is an unlawful delegation of Bartov. Himrod. We do not the GeneralTermhave so held upon the authority theschool law thinkthatcase at all decisiveof this. What was theredenom)inated not as a law but as a proposition. Whether the hands of the legislature came from thequestion submitted to the popularvote. it shouldbe a law or not was precisely The legislature proposedthe law, hutleftit to the people to enact. The processcarabdicationby the riedout and appliedto all billswould have resultedin a complete and functions. Insteadof makinglaws they of theirauthority senateand assembly but left the simplywould have suggestedthem,reportedthem for consideration, of their expediencyand wisdom,to an judgmentupon them, the determination outsidetheir own. As to the school law, the people weremade the legisauthority the bill proposedshouldor should not becomea lature,and leftto decidewhether underthe Constitution, could not so delelaw. This courtheld thatthe legislature, of themeasure, foritselfthe expediency gate itspower,but was bound to determine in that decisiondenied to the legislature enactor rejectit. But nothing and either the rightto pass a law whoseoperationmightdepend upon, or be affected by, a of such power. conceded the existence future contingency. The opinion expressly It was notdeniedthata valid statute upon the happenmaybe passed to take effect oruncertain. And thiswas said as to the character ing of some future event,certain on which a law maybe of such event,viz: ' The eventor changeof circnmstances of the legislature, must be such as, in the judgment affects the made to take effect

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decidedin I883 intheNewYork courtof appeals. Mr.Joseph H. Choate, a brief who presented forthedefendant in thiscase, argued ably,on the authority of Barto v. Himrod,Parkerv. Commonwealth and several insurance-law decisionsin Indiana and Louisiana,'against thevalidity of a statute whichmade the
of the law in the judgment expediency of the law; an eventon whichthe expediency must exthe legislature of thelaw-makers depends. On thisquestionof expediency answers and finally.' The statute beforeus fully erciseits own judgmenit definitively a completeand perfect thisdescription. It came fromthe handsof the legislature of its own, and dependentupon no additional law, having at once a binding force involved and existence. The questionof expediency assentor action forits validity and finally by but settleddefinitively in it was not delegatedto anyothertribunal, the legislatureitself. It determined, as a conclusionproper and expedient,that should pay foreign insurance companies, as the priceof admissionto our territory, whatthestateswhichcreatedthemshould in taxes,licensefeesand the like precisely imposeupon our companies in excessof our usual ratesas the priceof admissionto the foreign territory.That was the wholequestioninvolved. Nothingelse in the or otherwise, and thatquestionthe proposedlaw remained to be settledas expedient upon its own reasons and its sole responsibility. legislature determined foritself, of another state. depended upon the legislation Neitherthe law norits expediency was the same, whether It remainedthelaw and its expediency otherstateslegislated arose which the law stood ready to meet; if or not. If theydid, thecontingency no factoccurredto set it in theydid not, it remained none the less the law, although declinedto push the doctrine of Bartov. Himrod operation. This courthas steadily beyondthe pointwhichit decided. In Bank of Rome v. Village of Rome (18 N. Y, authorities certain an act conferring uponmunicipal 39) we sustained as constitutional of the taxuntiltheact had been approvedby two-thirds powersnot to be exercised and conimmediately, payers. The distinction taken was that the law took effect ferred the necessary power,butdid not compel the villageto act underit unlessthe so determined. The law was complete, althoughits operationdepended tax-payers was upon a contingency, whichmightor mightnot happen. A similardistinction takenin othercases (Starinv. Town of Genoa, 23 N. Y. 439; Bank of Chenangov. 28 N. Y. 6o5). While there Brown, 26 N. Y. 467; Clarke v Cityof Rochester, whichdistinguish weredifferences of opinionin thesecases as to theprecisegrounds in the construction themfrom concurrence put Bartov. Himrod,therewas an entire under whichmakes it inapplicable to thestatute upon the latter case, a construction " consideration. I NotablyClark and Murrellv. The Port of Mobile (I88I), IO Insurance Law was pronouncedunsoundby the supreme 7ournal, 357. This, decision,however, 1882, 104 Ill. courtof Illinoisin HiomeInsuranceCompanyof New York v. Swigert, the courtsaid: taxation, 653. In thislatter case, whichalso was a case of retaliatory " When the contingency of a law is made to deoperations upon which the ultimate or legislative of . . . the actionof some foreign deliberative body,as pend consists in suchcase abandons to suppose[that] the legislature is the case here,it is erroneous deliberative or delegatesits powers. . to such foreign its own legislative functions or legislative body . . - "

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action of anotherlegislaturethe conditionof its becoming operative. The court sustainedthe statuteand pronounced sucha condition admissible, provided thelegislature, in theexerciseof itsdiscretion, had definitively determined whatthelaw should be. This is precisely the pointwhichwould arise if statutes seeking to secureuniform actionbetween severalstates upon controverted issuesin industrial legislation weremade to dependfortheir operation upon reciprocal legislative action. Thereare a fewlegislative precedents fortheprinciples here advocated; but the laws in questionhave not been brought under examination in thecourts. The mostnotableexampleis thatof a group of statutes to do withthefisheries in the having DelawareRiver, especially withtheprotection of sturgeon. In I895 thelegislature of New Jersey passed an act forthe proof sturgeon, March22.X Section 3 provided tection approved " thatthisact shalltakeeffect whensimilar acts shallhavebeen passed by the legislatures of Delawareand Pennsylvania."In thesameyear,thelegislature of Pennsylvania passedan act for theprotection of sturgeon, approvedJune25,' witha precisely similarclause providing when thatthe act should take effect similar acts should have been passedby thelegislatures of the statesof Delaware and New Jersey. In 1897 Delaware responded with an act for the protection of sturgeon, passed May 19,3 section3 of whichprovided"that this act shall be deemed and takento be a public act and shall take effect as itspassageas similar soon after and concurrent actswhichhave been passedby thelegislatures of thestatesof NewJersey and Pennsylvania are enforced." Again, in I90I, both Pennsyl4 passed acts authorizing vaniaand New Jersey their respective to co'operate in restoring the sturgeon fishery commissioners fisheries in the Delaware River; and each statutemade an appropriation of $750, witha provisothat the act should not northemoney become becomeoperative appropriated thereby
of New Jersey, IGeneral Statutes 1709-1895,vol. ii, pp. 1593, 1594.
2 SessionLaws 3 Laws

of Pennsylvania, I895,

p. 295.

of Delaware, chap. 463, p. 476. Laws of New Jersey, chap. go.

4 SessionLaws of Pennsylvania, I90o, p. i86.

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available untilthe legislatures of the otherstates passed a similar act and appropriation. Again, in 1903, these two legislatures passed additional statutes almost identical in language, each making an additional appropriationfor the purposes set forth in the acts of I9OI and under the same conditions. In 1907, New Jersey, passed an act providing uniform laws to regulate the catching and takingof fishin the Delaware River and Bay between the state of Delaware and the state of New Jersey, whichmade operativea compact enteredinto betweenthese two states relating to boundarycontroversies. Section 25 of this statute provided: "This act shall take effectimmediatelybut shall not become operative until the legislatureof the state of Delaware shall have passed and the governorof that state shall have approved of a similarlaw agreed upon by the commission, as recited in the preamble of this act." Such a compact of course requiredthe consentof Congress; and in an act approved March 21, 1905, in which the state of New Jerseyaccepted the compact, the governorwas directedto transmit a certified copy of it to the presidentof the United States,withthe request that it be communicatedto Congress for its action thereon. These statutes,relatingto fisheries in a river over which two or more states have jurisdiction, would doubtless be sustained by the courts if theirvaliditywere questioned. In such cases as these conditional legislationis obviouslynecessary. It may perhaps be argued that in cases where conditional legislationis not so obviously necessary,enactmentsof a similar character might not be sustained; but in view of the approval by the courtsof retaliatory tax laws it seem improbable that any such would be drawn. These statutesfurnish distinction an excellent and the methods here applied example of reciprocal legislation, might well be utilized in the field of industriallegislation. Professor Ernst Freund, in an article entitled: " Can the States Cooperate forLabor Legislation?" 2 remindsus that Senator Root, in a notable speech, called attention to the dormant possibilities of that clause of the federal Constitution which
I Laws of New Jersey, chap. 131. s Survey, June 12, I909, vol.xxii, no. II.

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with forbidsthestatesto enterinto compactsor agreements theconsent otherstates without of Congress, andwhichthereby impliedly sanctions agreements betweenthe states, subjectto us such consent. Doubtless,Professor Freundwould caution that reciprocal enactments in the fieldof social or industrial to obtainedas the resultof an organizedeffort legislation, secureuniform legislation, as mightbe regardedby the courts virtual compactsbetweenthe states. SenatorRoot,in a very able speech beforethe Washington on Uniform Conference forso deLaws in January, I9IO, metthispointby saying that, sirablea public object as securinguniformity in an important branch of legislation, Congress woulddoubtless readily giveits consentto anyarrangements that mightbe regarded as compactsbetween thestates. In thisaddress, indeed, Senator Root wentmuch further than the program presented in this paper requiresor contemplates: he advocatedthe holdingof interstate conferences, made up of delegatesauthorized by their respective statelegislatures to enter intoagreements similarto the treaties alreadyconcludedbetween theleadingcountries of thewestern of sanitation, world, dealingwithsubjects industrial and othermatters of social policy. Of course, legislation any agreements attained insuchinterstate conferences wouldhaveto be ratified and incorporated in legislation by the participant and their states, respective legislatures would not be boundby otherthan a moralobligation to support theagreements oftheir accredited delegates. But,as SenatorRoot pointsout,in the fieldof international relations we have a record of veryconsiderable achievement, a of in list morethanone hundred agreeto whichtheUnited States has been a party ments within the last hundred years; and if so much can be accomplished betweensovereign nations withconflicting interests and resultant jealousies, whynotexpect more fromthefriendly conferences and deliberations of accrediteddelegates from sisterstates in theclosesttiesof a federal alreadyboundtogether union? The statutes to the fisheries relating in theDelawareRiver wereto becomeoperative whensimilar legislation shouldbe enforcedin thestatesspecified. The condition was a future fact, and thestatutes no authority designated to determine thefact.

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of the The federal precedent of requiring that the fulfilment conditionbe certifiedby an executive officeris a better one, and such a provisionwould be of material assistance to the has occurred. It courts in ascertainingwhetherthe contingency that,in any experiment to be recommended strongly is, therefore, with reciprocal legislation,the statuteembodying the wishes of of the govthe legislaturebe made operative by a proclamation ernor of the state, settingforthpublicly that the conditiondesignated in the act has been fulfilled. This methodwill have the further advantage of interestingthe governors in some of the more important subjectsof social legislation. The recentorganization of the so-called "sHouse of Governors," which brings the chief executives of the several states into closer relations for the discussionof prowith each other,will give opportunity jects of reciprocallegislation; and the educational power of the chief executive may be brought to bear upon the legislature and upon the electorate in any state which may be backward in upon which desirable legislationin other meetinga contingency states depends. In closing this paper, it may be suggested that the furtherance of reciprocal state legislation offersto private organizadeparturein educational and reformtions a new and promising atory effort. If, as the writerbelieves, the program above and is likelyto prove more effective outlined is more scientific in securingconsiderationfor statutes covering some of the difficultand debated points in the uniformregulation of industry and of industrialrelations,it seems worth while to give it a trial. In states able and willingto adopt a high standard,the chance of securing a position of leadership through uncondito secure such legislational legislationremains,and the effort tion need not be relaxed; but in states no less desirous of it, adopting the highest standard but perhaps unable to afford it would be possible to urge legislation in accordance with higher standards,but to make its operation depend upon the acceptance of the same standardsin competingsisterstates.
SAMUEL MCCUNE LINDSAY.