UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY MODERN TENDENCIES OF LEGISLATION AN ADDRESS BEFORE THE TWENTY-FOURTH ANNUAL CONVENTION OF THE Washington State Bar Association TACOMA JULY 30-31 AND AUG. 1, 1912 BY HON. OSCAR CAIN ifi UNITED STATES DISTRICT ATTORNEY SPOKANE L L L L L C. EFFENBEE PUBLISHING COMPANY, OLYM PIA. WASHINGTON T MODERN TENDENCIES OF LEGISLATION. HON. OSCAR CAIN, U. S. DISTRICT ATTORNEY, SPOKANE, WASH. Legislation, as it is now understood, is a matter of comparatively recent origin. There had been a legislative body in Great Britain for centuries before it undertook to perform any other function than to declare what the law was. The Saxon idea being that the law was something that had always existed and was known to every one, and that the only purpose of a legislature was to declare the law when some powerful individual or class attempted to over-ride it. This was intended merely as a reminder that the law should remain as it had always been. In the thirteenth century Parliament began making new laws, but these accumulated very slowly. During the reign of Charles I, the entire output of legislative enactment to that time, collected and bound together, filled but five small volumes less than the present in- dex of our federal statutes. Gradually, however, legislative bodies awoke to a sense of their powers, and, in this country especially, have exercised them with increasing frequency. Professor Stimson, who occupies the chair of comparative legis- lation at Harvard, estimates that during the first half of the last cen- tury the legislative enactment of the Congress of the United States, added to the legislative enactment of the several states, is a thousand-fold the entire law making of England for the five centuries preceding, and the present tendency is to increase rather than diminish the amount of legislation. Since 1890 congress has passed more law than during the first one hundred years of the existence of this government. The legislature of Washington, since its organization as a territory, has passed almost as much new law as has been passed in England since the time of Cromwell. This, of course, does not take into account the immense amount of private and special legislation passed in that country. A similar amount of legislative enactment has characterized the progress of the several states. When we contemplate this vast addi- tion to the written law, the inquiry naturally suggests itself: Whither are we tending, and what is the net result of all this legislation? It is only that part of it which shows a tendency to depart from estab- lished usages and introduce new features into our state and federal government with which this paper is concerned. If there was one subject upon which the founders of this govern- ment had more pronounced views than another, it was that of personal liberty. Following the spirit of the English common law, they sought to erect every safeguard and to take every precaution to protect the rights and secure the liberties of the individual man. MODERN TENDENCIES OF LEGISLATION In its earlier legislation, congress sought to condemn only those acts, the doing of which would seriously affect the community. The same spirit, with rare exceptions, characterized the early legislation of the states. During the period between 1830 and 1860, however, a reform movement began to spread over the country, and then the idea that the world can be made good by law began to manifest itself in legislation. During that period a number of the states passed prohibition laws, and almost all of them passed laws having for their purpose the regulation of the morals of the individual. This class of legislation received a check during the civil war and the reconstruction period which followed; but in recent years has broken out with increased violence. Blackstone tells us, that in legislation by the people, they will show great caution in making new laws which may interfere with their rights and liberties. Exactly the reverse has proven true. There have seldom been as many restrictions placed upon the con- duct of a people by a monarch as the people of this country have placed upon themselves. We seem perfectly willing that the legis- lature elected by ourselves may impose upon us the standards of self-righteousness of any sect or faction. The distinction between those things which are criminal and those things which are merely sinful is entirely lost; and, going further, we legislate against those things which are neither sinful nor criminal, but which the passing whim of some individual or organization seeks for the moment to condemn. Some penurious traveler observes that the man who gives the porter or waiter a quarter, gets better service than himself. In his anger he goes to the legislature and a law against tipping is the result. Some man goes out with a crowd of good-fellows and awakes the next morning with a bad taste in his mouth and a pain in his head, and before his mind becomes clear, he has drafted a statute or an ordinance against treating; and we submit to these regulations upon two conditions: First, they must always be imposed by a legislature which we ourselves have elected; and, second, we must never be required to observe them. Just prior to the revolution, parliament passed a law authorizing the king's officers armed with writs of assistance, to make searches of the houses of the colonists. The outcry against this procedure is historic. Imagine the indignation that would have been aroused if, in addition to the powers conferred, they had been authorized to make a tour of inspection of the hotels and restaurants to determine if the bed sheets were all nine feet long and the kitchen in a proper state of sanitation. It would have been prominently mentioned in HON. OSCAR CAIN the Declaration of Independence and made the subject of a clause in the Constitution of the United States. But we, the descendants of those people, are daily permitting restraints to be imposed upon our- selves, any one of which, in the eyes of our forefathers, would have justified the revolution. In the State of Washington a man may not take a drink upon a train or other public conveyance, or give a dime to the porter who shines his shoes, or the waiter who serves his meal, or have in his possession any wild bird, living or dead; or sell whiskey under four years old, unless it be Scotch or Irish whiskey; or cut his neighbor's harness when his team is hitched at a religious meeting, or untie a horse from a post to which it has been hitched by its owner, or post a handbill upon a fence; or, if he be afflicted with insomnia, walk the streets at late or unseemly hours without subjecting himself to prosecution; nor may a boy throw a stone at a barn, or destroy a bird's nest, or have the eggs of a wild bird in his possession, or kill a honey bee; or have tobacco in any form in his possession until he is twenty-one years old, without subjecting himself to a fine and imprisonment. In. Oklahoma, every person who leaves an animal hitched during cold weather, or in the night time, is guilty of a misdemeanor. The statute does not specify the length of time, or degree of cold required to bring the offender within its operation. In that state the use of profane language is prohibited without regard to time or place. The law applies alike to the man who swears in public and tq the farmer, who alone in the field, urges his team to greater activity by the use of language forbidden by the second command- ment; and this, too, in a state where farming operations are largely conducted with mules. Blasphemy is also defined and made punishable by the laws of Oklahoma. Among other things, it consists of "casting contumelius reproach upon the Christian, or any other religion." In Idaho a fine of not to exceed five hundred dollars is the pen- alty prescribed for selling intoxicating liquor at a camp meeting. Inasmuch as the laws of that state presciibe a fine of three hundred dollars and six months' imprisonment for selling liquor without a license, it would seem that the statute was enacted to encourage the practice which, by its letter, it forbids. In several states it is a misdeameanor to bet upon an election, and in one it is an offense for a high school student to enter a fraternity; but it remains for Kansas, the state whose name is so prominent in the great struggle for human freedom, to strike the final blow at the liberty of the citizen. In that state it is made a crime for MODERN TENDENCIES OF LEGISLATION any person to eat, or pretend to eat, any snakes, lizzards, scorpions, centipeds, tarantulas or other reptiles in any public place. The above instances, and many others that might be cited, show the extremes to which legislation has gone in an effort to regulate every phase of human conduct by law. Dr. Samuel Johnson tells us that law is the result of human wisdom acting upon human experience for the benefit of the public. He would doubtless have entertained a different opinion of many of our recent statutory enactments. This class of legislation would not seem so ridiculous if it had the slightest tendency to decrease the vice or folly at which it is leveled. If, by reason of it, the public peace were less frequently invaded, or, through its passage, public morals had attained to a higher standard, we could feel that we had secured something in return for the liberties we have surrendered. But the most noticeable consequence of such legislation is a wide-spread and growing disre- spect for the law. Nobody pretends to obey these laws; no public officer charged with their enforcement seems to understand that they were ever enacted to be obeyed. The public which clamors for their enactment takes not the slightest interest in their en- forcement. We seem perfectly willing that any course of conduct may continue if, in addition to its being wicked or foolish, we can make it criminal. The tendency of modern legislation to create boards and com- missions, to which are delegated important functions of state and federal government, is a distinct departure from what was once considered a fundamental principle of popular government and is one of the most striking tendencies of modern legislation. These commissions are constantly increasing in number and effi- ciency, in the face of a strong popular prejudice against bureaucracy, and contemporaneously with a growing demand for direct govern- ment through the medium of the initiative and referendum and direct primary, to the underlying principles of which they seem in direct opposition. Originally they were mere boards appointed by the governor, and usually selected from the members of his party who had contributed their time and money to his campaign, and who, in return, wished to be rewarded by some official distinc- tion which would not involve exertion or responsibility. Their duties usually consisted of investigating the public institutions and public service corporations under their jurisdiction for the purpose of col- lecting information to be used as the basis of recommendations to the legislature. The traveling done in the performance of their duties was generally in the nature of a holiday excursion, frequently as the guests of the institution or corporation under investigation. They seldom found any serious fault or recommended any radical HON. OSLAR CAIN Changes. They were chiefly noted for their extravagance, incompe- tence and inefficiency. Despite the prejudice that their administra- tion of affairs engendered in the public mind, they have greatly increased in number and have been clothed with additional powers. They are now generally composed of men who devote their entire time to the discharge of their duties; who are compensated for their -services and who have had some training along the line of the duties which they undertake. The powers which they now exercise are so extensive that they =are referred to by some writers as the fourth department of the government. The power to fix freight rates and rates charged for gas, water and electricity; to fix charges and services of telephone and telegraph companies; to fix charges and service of wharfingers and warehouses, together with the power to order improvements and to prescribe rules for the conduct of the business of such institutions, is, in most states, exercised by these commissions. In addition to these are industrial commissions, tax commissions; boards of health, boards of control; forest commissions; boards of accountants; highway commissions, and various boards of examiners, which, to a greater or less extent, exercise similar powers. In the federal government these commissions have their counter- part in the Interstate Commerce Commission, with power to fix freight rates; the Department of Commerce and Labor, with power to try and determine the question of the legal residence of an alleged alien, and the Department of Agriculture, with power to prescribe rules for the regulation of Forest Reserves. The interesting feature of it all is, that we are centralizing to a certain extent all of the powers of the three original branches of government into a fourth branch, further removed from the popular will than any of the others; and this, at a time when it is commonly supposed we are drifting toward direct government. In states where the initiative and referendum are in operation, commissioners are being created, clothed with certain powers, leg- islative in their nature, further removed from the people than ever the legislature was. While demand for the recall of judges is increasing, commissions exercising highly important judicial functions are springing into 'xistence, the members of which are neither subject to recall nor lected by the people; and strange as it may seem, these commissions lind their strongest champions among the people who favor 'the initiative, referendum and recall. It is difficult to forsee where this tendency toward government by commission may end. The more strongly the idea may be opposed to the principles advocated by an organization or party, MODERN TENDENCIES OF LEGISLATION the more readily that organization or party submits to its rule. There is probably no class of people among whom the sentiment for th