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 UNCLASSIFIED 
 
 Vol. VIII OCTOBER-DECEMBER. 1921 Number 1 
 
 Published by Randolph-Macon Woman'* College 
 ISSUED QUARTERLY 
 
 BULLETIN OF 
 
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 RANDOLPH -MACON ^^ 
 WOMAN'S COLLEGE^ "^ 
 
 LYNCHBURG. VA. 
 
 The Reconstruction of State Government 
 
 BY 
 
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 Professor J. F. PEAKE 
 
 Bntered as second-class matter January 5, 1915, at the Posteffice at Lynchburg, Virginia, 
 under the Act ol August 24, 1Q12. 
 
BULLETIN 
 
 ^ 
 
 RANDOLPH -MACON 
 WOMAN'S COLLEGE 
 
 The Reconstrudlion of State Government 
 
 BY 
 
 Professor J. F. PEAKE 
 
 Published by Randolph-Macon Woman's College 
 Lynchburg, Virginia 
 
Digitized by the Internet Archive 
 in 2013 
 
 http://archive.org/details/reconstructionofOOpeak 
 
The Reconstruction of State 
 Government* 
 
 By Professor J. F. Peake 
 
 By all who understand them our state governments are criti- 
 cised as being inefficient, expensive and frequently unresponsive 
 to public needs. In many cases they are declared to be no longer 
 truly representative governments. Our state administrative de- 
 partment has grown and expan^ied until it has ceased to have 
 any recognizable form or system. Expansion has been inevi- 
 table, for our state governments have been constantly trying to 
 render greater services to the people, but in this expansion we 
 have not followed any rule or principle. In a haphazard manner 
 we have added offices, boards and commissions until the depart- 
 ment has become unwieldy and impossible of supervision. In- 
 stead of having one responsible head there iare nearly as many 
 irresponsible heads as there are agencies. Nominally, the gov- 
 ernor is the head of the administrative department, but in 
 reality he is only one of many independent officers having charge 
 of enforcing the law. It is impossible for him or for any one to 
 direct the actions or to supervise the great number of agencies 
 belonging to this hydra-headed department. When Illinois under- 
 took administrative reorganization a few years ago it was dis- 
 covered that there were in that state more than 125 officers, 
 boards, commissions and lagencies engaged in state administrative 
 work. When New York undertook a similar task it was found 
 that 187 agencies of various kinds were included in her admin- 
 istrative department. In all the other states that have not 
 brought about some reforms similar conditions exist. Manifestly, 
 it is impossible to maintain any real control or supervision or to 
 have any real cooperation among such a heterogeneous mass of 
 agencies. To a large extent each of these agencies determines 
 
 *Read before the Sphex Club of Lynchburg, Va., December 16, 1921. 
 
4 Bulletin 
 
 its own action with the result of conflict of authority, over- 
 lapping of function, duplication of salary, waste -and extrava- 
 gance. Competition instead of cooperation in the purchase of 
 supplies results in wasting millions of dollars annually. 
 
 The only relief from such a state of affairs is a consolidation 
 that will enable the state to abolish many agencies and establish 
 a genuine responsibility over the remaining ones, thereby secur- 
 ing efficiency and reducing the burden which the taxpayers are 
 now compelled to carry. Immediate results were forthcoming in 
 Illinois from the consolidation of the 125 and more adminis- 
 trative agencies into 9 large departments, each under a head 
 appointed by, and responsible to, the governor. After it was in 
 operation for two years it was declared to have more than justi- 
 fied all expectations. The governor became the real head of the 
 administrative department and was in daily contact with the 
 administration in all its activities. Unity and harmony were 
 secured; vigor and energy were increased. Moreover, though 
 the change was made in 1917, when costs and prices of every- 
 thing w^ere rising, yet the actual cost of government to the people 
 of the state was greatly reduced. The first year the change went 
 into effect the state tax rate was 90 cents; the next year it was 
 reduced to 75 cents; the year following it was fixed at 60 cents. 
 It has been declared that this Civil Administrative Code of 
 Illinois ''is probably the most important and effective measure 
 relating to governmental organization that has been enacted in 
 any state of the union." In Idaho, the "Administrative Con- 
 solidation Act" of 1919 resulted in abolishing more than forty 
 administrative agencies. Governor Davis of that state declares 
 that this act means the dawn of a new era in civil administration 
 and the passing of the day ''when the worn-out, creaking system 
 of state government will do." 
 
 But although administrative consolidation is la long step 
 toward more efficient government it only partly solves the prob- 
 lem. It is not alone in the administrative department that re- 
 form is needed. Our state legislatures have fallen very low in 
 public estimation. They no longer command the confidence and 
 respect they once held. The length and character of recent state 
 
Randolph-Macon Woman's College 5 
 
 constitutions, and the wide-spread demand for the initiative and 
 referendum testify to this lack of confidence. 
 
 The criticism of our legislatures is that they do not readily 
 respond to public opinion, that the quality of the legislation 
 they enact is low, and that as the guardian of the public purse 
 they are a complete failure. The causes of the shortcomings of 
 our legislatures may be lascribed to (1) their personnel, (2) 
 their procedure in general and lack of leadership in particular, 
 (3) the bicameral system. 
 
 In respect to personnel it must be admitted that our legis- 
 latures fail to attract and hold men of more than average 
 ability. Several explanations may be given for this fact, but 
 that it is a fact can hardly be denied. "Recent studies of state 
 legislatures show that on an average only 15% of our repre- 
 sentatives have had a college education, and what is worse, not 
 
 50% have enjoyed a full common school education 
 
 Measured by the size of their responsibilities, our legislators do 
 not seem equal to their task."^ 
 
 But even abler men would be handicapped by the method of 
 procedure that our legislatures follow. In order to prevent an 
 abuse of power,to provide a safeguard against hasty action and 
 to secure full consideration and publicity, a method of pro- 
 cedure has been imposed upon our legislatures which may have 
 been wise and good in earlier days but which certainly serves 
 as a handicap today. The freedom with which any member may 
 introduce any number of bills on any subject, the three pre- 
 scribed readings, reference to committees and many other rules 
 have served to clog the legislative machine and has put a pre- 
 mium on dilatory tactics and delay. Moreover, no leadership of 
 any kind is provided and nobody is responsible for a legis- 
 lative program. Legislation is everybody's business and there- 
 fore it is nobody's business. The result is "logrolling," delay 
 and legislation of a low quality. 
 
 These conditions are made worse by continuing the two-house 
 legislature. Again, this may have been wise in the earlier years 
 of the republic but conditions have so changed and the prob- 
 
 ^These figures are given by Professor Allen Johnson of Yale University. 
 
6 Bulletin 
 
 lems of legislation are so different that there is no justification 
 for continuing the bicameral state legislature. The first fifty 
 years of our history we were concerned primarily with political 
 questions, and the filtration of laws through two different houses 
 may have been a proper safe-guard. But today most of our 
 legislative problems are social and economic and they require 
 highly technical and expert knowledge and a machinery of 
 government that is more simple and more easy to operate. Also, 
 to justify their existence and accomplish what was claimed for 
 them originall}^, the two houses of a legislature must be really 
 different — different in spirit, character and ability — otherwise, 
 one IS a mere replica of the other. But can it be said that there 
 is any real difference between the two houses of an American 
 state legislature today? "They are both everywhere chosen by 
 the same voters, in substantially the same way and with rel- 
 atively unimportant differences as to the qualifications of their 
 members." If, therefore, there is no real difference their exis- 
 tence means merely an unnecessary duplication which only adds 
 to the delay, complexity and expense of government. Nor can 
 it be any longer said that one house acts as a useful check on 
 the other. All legislation today is party legislation. If, there- 
 fore, both houses are controlled by the same party, then no real 
 check is imposed by one upon the other; if the two houses are 
 controlled by different parties, then the legislature is deadlocked. 
 Moreover, there is no striking difference between the two 
 houses either in ability or in the character of their work. A 
 recent authority declares, "The fact is that the upper chambers 
 of state legislature do not conspicuously excel the lower cham- 
 bers either in intelligence, sobriety of judgment or disinter- 
 estedness. No evidence exists that, in truth, the measures that 
 originate in these upper chambers are wiser than those that 
 take their rise in the lower chambers, or that those measures 
 which have come from the lower houses emerge in an improved 
 condition from the upper chambers. And, in addition, is the 
 fact that when it is known that a decision is not final but is sub- 
 ject to revision and approval by another body, it necessarily 
 has the tendency to make the originating body less careful than 
 
Randolph -Macon Woman's College 7 
 
 it otherwise would be of the substance and form of the measures 
 to which it gives its approval. At the best there is a division of 
 responsibility which is always unfortunate."^ There seems, 
 therefore, hardly any justification for continuing the bicameral 
 legislature in our state government. 
 
 Our state judicial department has perhaps been subjected to 
 more popular criticism than either of the other departments. 
 Only those who take the trouble to study or investigate the 
 w^orkings of the administrative and legislative departments see 
 clearly their defects as organized at present, but the defects of 
 the judiciary are seen more generally by the public. 
 
 In addition to isolated charges of corruption and of a re- 
 actionary tendency on the part of a few courts, widespread 
 criticism is heard regarding the administration of justice. These 
 criticisms are that the administration of justice is unnecessarily 
 slow, expensive and not equal for rich and poor. We must admit 
 that there is much justification for the first two criticisms be- 
 cause undoubtedly our judicial procedure is antequated and 
 much of the expense attached to litigation is unnecessary and 
 unjust. Strict rules have to be followed, technicalities are 
 allowed too much weight and the right of appeal is abused. The 
 third criticism, if it is justified, is the result of the other two. 
 Of course, responsibility for such a state of affairs does not rest 
 with the courts, but with the constitution and the laws that 
 prescribe the stringent rules the courts must follow. A judge 
 often sees where, if a little discretion were given him, a better 
 dispensation of justice would result, but his hands are tied. One 
 writer describes the conditions existing in our judicial system 
 as follows: "Constitutions and laws have been so regardful of 
 the individual's right that they have given to every suitor an 
 undue liberty to stay proceedings, to take exceptions, to move 
 in arrest of judgment, and to make appeal. These rights, in 
 many cases, are transformed into privileges of obstruction and 
 delay. They restrain the judges from doing many things which 
 judges are permitted to do in all other countries and which if 
 
 ^Willoughby and Rogers ''An Introduction to the Problem of Govern- 
 ment," pp. 241-242. 
 
8 Bulletin 
 
 allowed here, would greatly expedite the administration of 
 justice. ^lany of the laws relating to judicial procedure, os- 
 tensibly in the interest of justice, actually operate to withhold 
 from the citizen the first essential of justice — ^namely, that it 
 *' shall not be delayed to any man."^ Dean Viance of the Univer- 
 sity of Minnesota Law School says: "We lead the world in most 
 of the great struggles mankind is making, but in the adminis- 
 tration of the law America lags two generations behind the rest 
 of the civilized world." 
 
 In civil matters this state of affairs deters many from seek- 
 ing to obtain the justice rightly due them. The expense, delay 
 and uncertainty connected with the administration of the law 
 causes them to forego their legal right. In criminal matters it 
 may almost be said that instead of preventing crime our system 
 encourages crime. Statistics show that in the United States there 
 are more than one hundred homicides per million population, 
 whereas in France, England and Germany the ratio is less than 
 twenty per million population. Moreover, in the United States 
 there is only about one execution for every seventy-five mur- 
 ders. That is, seventy-four out of every seventy-five murderers 
 either escape punishment or pay less than the extreme penalty 
 for their crime. In New York City alone in 1918 there were 221 
 murders but only 77 convictions ; in Chicago in 1919 there were 
 336 murders but only 44 convictions. The chances of punish- 
 ment are so slight that the criminally inclined are willing to take 
 the risk. Of course the jury system as operated at present is 
 partly responsible for this state of affairs, but our rules and 
 methods of procedure also have much to do with it. Mr. James 
 M. Beck says, "The law's delay and laxity in administration 
 breed a spirit of contempt and too often invite men to take the 
 law into their own hands." 
 
 The problems involved in the reform of our judicial system 
 are: (1) unification of the judicial department, (2) simplifi- 
 cation of the rules of procedure, (3) provision for disposing of 
 small claims and minor controversies, thereby reducing expense 
 and delay and relieving the courts of much unnecessary work. 
 
 'Munro ''Government of the United States," pp. 499-500. 
 
Randolpii-Macon Woman's College 9 
 
 Some progress has been made in a few of our states but no 
 thorough-going: reform of the entire judicial system has yet 
 been carried out in this country. In 1873 England thoroughly 
 reformed her judicial system with the result that England today 
 is recognized as a country where the administration of justice 
 is direct, simple and inexpensive. 
 
 Summing up the progress thus far made in reforming Ameri- 
 can state government we see that administrative reorganization 
 has been attempted in several states and has been carried out, 
 in part at least, in a few states. Some improvement has also 
 been made in some of the states in the administration of justice. 
 But no state has yet undertaken any thorough-going reform or 
 reorganization in all branches of its government. Proposals 
 have been made, for example in Kansas and Oregon, but they 
 have been too radical to gain popular approval. We are still too 
 much attached to the form and principles of our state govern- 
 ment to be willing to consent to changes that would violate these 
 principles. But is it not possible to make changes in the entire 
 range of state government that will, on the one hand, preserve 
 these principles and yet provide a form of government that will 
 be more efficient, more economical and more responsive to public 
 needs? Some such plan as the following would seem to answer 
 this question : — 
 
 I. The Executive Department: 
 
 There should be a governor and a lieutenant-governor elected 
 for four years by popular vote. No other executive or adminis- 
 trative official should be chosen by the people. All administrative 
 work should be consolidated into seven, nine or, at most, a small 
 number of departments, each in charge of a head appointed by 
 and responsible to the governor, with the technical work in each 
 department in charge of experts chosen by a civil service sys- 
 tem. This would centralize the administrative work and place 
 all responsibility for this work in the hands of the governor. 
 
 In addition to this, the governor should have the following 
 powers : 
 
10 Bulletin 
 
 1. To appoint the justices of the supreme court with the 
 approval of the legislature. 
 
 2. To initiate legislation which should be given preferential 
 consideration by the legislature. To assist the governor, as well- 
 as members of the legislature in preparing bills, there should be 
 provided a legislative reference bureau and a sufficient number 
 of expert draftsmen. Also, the governor should have the privi- 
 lege of appearing before the legislature, either in person or 
 through some representative of the executive department to 
 advocate and defend the bills he may introduce. 
 
 3. To prepare the budget to be presented to the legislature 
 which in turn should have the power to eliminate or reduce but 
 not increase any item therein. 
 
 4. To veto acts of the legislature which, however, should be- 
 come a law if repassed by a two-thirds vote. 
 
 II. The Legislative Department : 
 
 There should be a legislature of one house of moderate size, 
 the members of which should be chosen by popular vote, and for 
 the same length of time as the governor, from relatively large 
 districts. Over this legislature the lieutenant-governor should 
 preside, though he should not have the power usually possessed 
 by an American speaker. His relation to the legislature should 
 be similar to that which exists between the vice-president and 
 the United States Senate or between the English speaker and 
 the House of Commons. The legislature should, however, choose 
 a president pro tempore to preside temporarily in the absence 
 of the lieutenant-governor and permanently when the latter 
 succeeds to the governorship on the death or removal of the 
 governor. 
 
 Among the powers possessed by the legislature should be: 
 
 1. The general power of legislation, though some restriction 
 should be placed on legislation in respect to local government 
 and some restraint on the freedom of the individual member to 
 introduce bills. 
 
 2. The power to choose an auditor to audit the accounts of 
 the treasurer. 
 
Randolph-Macon Woman's College 11 
 
 3. The power to appoint the civil service commission. 
 
 4. The power to investigate the work of any administrative 
 department. 
 
 5. The power to remove the governor, any appointee of the 
 governor and any judge by a three-fourths vote. 
 
 A simpler method of procedure should be prescribed for the 
 legislature that will enable it to do its work with greater dis- 
 patch and that will remove the opportunity for deliberate ob- 
 struction on the part of a few members. 
 
 III. The Judicial Department: 
 
 There should be la judicial department consisting of one su- 
 preme court and such subordinate courts as the supreme court 
 may deem necessary for the proper administration of justice. 
 The judges of the supreme court should be appointed by the 
 governor, with the consent of the legislature, and the judges of 
 the subordinate courts should be appointed by the supreme 
 court and these subordinate courts should be regarded as 
 branches or divisions of the supreme court. The procedure to 
 be followed by all these courts should be determined by general 
 acts of the legislature, which should leave to the judges them- 
 selves considerable power to arrange details and to alter the 
 rules as the demands of justice may dictate. The object should 
 be to unify the judicial department and to simplify and make 
 more elastic the method of procedure. 
 
 Then with a view to relieving the regular courts of much 
 unnecessary work and to reducing expense and delay in minor 
 causes, conciliation courts and courts of small claims should be 
 provided to settle many minor claims and disputes without going 
 through the regular judicial process. The success of the Cleve- 
 land small claims court and of many similar courts in foreign 
 countries proves the wisdom and practicability of such in- 
 stitutions. 
 
 Now the foregoing suggestions for the reconstruction of state 
 governments are not radical or revolutionary. The plan pro- 
 posed is a compromise plan. It preserves intact the principle of 
 separation of powers and checks and balances. It merely Con- 
 
12 Bulletin 
 
 solklates power. It consolidates all executive and administrative 
 power in the governor; it consolidates all legislative power in a 
 single house or chamber; it consolidates all judicial power in 
 one supreme court. But each of these consolidated departments 
 may influence and check the others. The governor miay influence 
 and check the legislature by his power (a) to call extra sessions, 
 (b) to introduce bills, (c) to veto acts of the legislature. The 
 legislature may influence and check the governor (a) by its 
 control over the purse, (b) by its power to investigate any of 
 the administrative departments, (c) by its power to remove the 
 governor or any of his appointees. The judiciary may influence 
 and check the other departments exactly as it does now, viz., by 
 its power to interpret the laws and the constitution and thereby 
 to define the power of both the executive and the legislature. 
 
 Certain benefits may confidently be claimed for such a form of 
 government in the way of greater energy, efficiency and re- 
 sponsiveness to public opinion. The administrative department 
 would be unified, centralized and integrated, real responsibility 
 and supervision would be provided and this would result in 
 greater efficiency and economy. In the legislative department 
 there w^ould be a centralization of power and responsibility, 
 real leadership in legislation would be provided and this would 
 lead to greater dispatch in enacting laws and to the elimination 
 of much delay and friction. Moreover, we might reasonably ex- 
 pect an improvement in the personnel and ability of the legis- 
 lators in conformity with the rule that the greater the power 
 and responsibility of an office, the greater the ability that office 
 attracts. This in turn would result in a much higher quality of 
 legislation. Finally, the judicial department would be unified 
 and the procedure of the courts would be simplified with the 
 result of less expense and delay in the administration of justice. 
 
 In his lectures on "Constitutional Government in the United 
 States," President Wilson says: ''It may turn out that what 
 our state governments need is not to be sapped of their powers 
 and subordinated to Congress, but to be reorganized along 
 simpler lines which will make them real organs of public 
 opinion .... We began to strip our city governments of their 
 
Randolpii-Macon Woman's College 13 
 
 powers and to transfer them to state commissions or back to 
 the legislatures of the states very much as we are now stripping 
 the states of their powers and putting them in the hands of 
 federal commissions . . . But it did not take us long, fortu- 
 nately, to see that we were moving in the wrong direction. We 
 have now turned to the better way of reconsidering the whole 
 question of the organization of city governments, and are likely 
 within a generation to purify them by simplifying them .... 
 It is to be hoped that we shall presently have the same light 
 dawn upon us with regard to our state governments, and, instead 
 of upsetting an ancient system hallowed by long use and deep 
 devotion, revitalize it by reorganization."^ 
 
 The greatest obstacle to any plan for reconstructing state 
 government is our reluctance to give up forms that have been 
 established for a long time and to change institutions that have 
 become venerable with age. But a lesson we are constantly 
 learning is that times and conditions change land institutions 
 must change with them. The attitude we should take toward 
 political reform cannot be better expressed than in the foUow- 
 words of Jefferson. Writing to Samuel Kercheval in 1816 he 
 said: "Some men look at constitutions with sanctimonious rev- 
 erence, and deem them like the ark of the covenant, too sacred 
 to be touched. They ascribe to the men of the preceding age a 
 wisdom more than human, and suppose what they did to be 
 beyond amendment. I knew that age well; I belonged to it, and 
 labored with it. It deserved well of its country. It was very 
 like the present but without the experience of the present; and 
 forty years of experience in government is Avorth a century of 
 book-reading; and this they would say themselves, were they to 
 rise from the dead. I am certainly not an advocate of frequent 
 and untried changes in laws and constitutions. I think moderate 
 imperfections had better be borne with; because, when once 
 known, we accommodate ourselves to them and find practical 
 means of correcting their ill effects. But I know also that laws 
 
 'Woodrow Wilson ''Constitutional Government in tlie United States," 
 pp. 191, 196, 197. 
 
14 Bulletin 
 
 and institutions must go hand in liand with the progress of the 
 luinian mind."^ 
 
 'Quoted in Ilolcombe, ''State Government in the United States," p. 480. 
 
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