The Affirmative have mentioned our authority. What we have said in regard to Sacramento, Cal., is based upon excerpts from an article by the Hon. Clinton White, published in the Cedar Rapids _Evening Times_. Most of our facts concerning the southern cities which adopted the new plan are taken from the reports of the Des Moines investigation committee, headed by the Hon. W.N. Jordan. We would be glad to submit these pamphlets to the gentlemen for examination. The mere fact that Des Moines adopted the commission form does not disprove the integrity of the authorities.

It is claimed that our stand is indefinite. True, we have not offered a panacea for all munic.i.p.al ills. But we have advocated numerous reforms and have pointed out countless instances of munic.i.p.al success under various forms, yet all based upon the same fundamental principle, that there be separately const.i.tuted departments of government. One of the fatal objections to the gentlemen's proposition is that they are attempting to blanket the whole country with one arbitrary form, regardless of differing conditions. They have completely ignored our cases of successful city government. We demand that they explain them.

The gentlemen have said that state interference has been precipitated by the decay of the city council. Yet they advocate its complete destruction. Nothing could be more incorrect than to say that special legislation was brought on as a result of an inherent weakness in council government. Under the early council system, there was practically no state interference. About the middle of the last century, the board system was introduced and the councils were shorn of their dignity and much of their legislative power. Right there state dominion in local affairs began. These are the unbiased facts as given by Professor Goodnow in his book on city government.

In conclusion, Honorable Judges, the solution of the American city problem will be best promoted by a program of reform which strikes at the real causes of the evils, instead of the universal overturning of all traditions and theories of government in the hope of finding a short-cut road to munic.i.p.al success. Give the city a proper sphere of local autonomy. Co-ordinate the departments of government, so as to establish responsibility and secure harmonious action. Simplify present city organization without destroying the two branches of government. Introduce new and improving methods, such as non-partisan primaries, civil service, uniform munic.i.p.al accounting, and publicity of proceedings. Remedy bad social and economic conditions. Arouse civic interest. Do this, and there is no necessity for such a radical and revolutionary change as the universal adoption of a commission form.

The new plan means, not alone a change in the form of government, but a positive overturning of the working principle of successful city organization the world over. Its experience has been in the small towns for a short time, under unusual conditions, amid aroused public sentiment. Even here it has shown fatal weaknesses which the gentlemen have not satisfactorily explained. It was abandoned by the only large city that ever tried it; and cast aside as an abject failure by Sacramento, Cal., after fifteen years of operation. In the face of these facts, the gentlemen would have all American cities turn to this form as the final goal of munic.i.p.al success; a form which attempts to revive the old board system of selecting administrative heads by popular vote; which, in addition, centers the whole government of a city in a small executive cabinet, without review or oversight; a form which, in the words of Professor Fairlie, of the University of Michigan, "is in direct opposition to the advancing idea of munic.i.p.al home rule."

Mr. Luxford closed the debate for the Affirmative, and said:

The case for the Negative is now closed. It has been indefinite from start to finish. They acknowledge the success of the commission form but refuse to accept it as the proper form toward which American cities should work. They have none to offer except a form which is completely unknown in American cities and successful alone in Europe under totally dissimilar conditions. We have shown that every vital move for city improvement today is toward a commission form, both in practice and theory. The gentlemen have sought to overthrow the argument for the commission form, and yet suggest no possible American subst.i.tute.

But the position is not only indefinite, but it is inconsistent. At one time they say, "the commission form is working well in small cities." In another they declare that the commission form ignores the only principles which are at the basis of successful city government the world over. Putting these statements together we must conclude that the gentlemen who made the second statement failed to hear the gentlemen who made the first. If they grant that the commission form is successful anywhere in the world how can it be that it is ignoring the only principles of successful city government the world over?

But we would not be unjust to the gentlemen. They are not perhaps altogether indefinite. They would keep the old mayor and council plan but would have non-partisan primaries, uniform munic.i.p.al accounting, and publicity of proceedings. Non-partisan primaries and publicity of proceedings they have stolen bodily from the commission. We are grateful to the gentlemen for this hearty indors.e.m.e.nt of the material features of the commission form. As to uniform munic.i.p.al accounting, while it is just as possible under the commission as under any other form of city government, its advocacy by the gentlemen is inconsistent with their insistent demand for munic.i.p.al home rule. Who but the state can supervise a uniform accounting of all cities? And the gentlemen have deplored state interference.

Not only that, but the commission plan provides the necessary responsibility whereby the citizens may know and partic.i.p.ate in the city government. In the first place the publication of monthly itemized statements of all the proceedings is required. Every ordinance appropriating money or ordering any street improvements, or sewer, or the making of any contract shall remain on file for public inspection at least one week before final pa.s.sage. Franchises are granted not by any legislative body but by direct vote of the people. Similarly the citizens retain the right to reject any ordinance pa.s.sed, or to require the pa.s.sage of any needed ordinance. And finally, the citizens by direct vote may remove any commissioner at any time.

Thus we see that the commissioners know both the legislative and administrative side of the city's work, and the responsibility of doing both is fixed upon them.

Lastly, Honorable Judges, the Affirmative rest their cases upon these fundamental arguments: that the whole tendency in American city government is toward centralization of power in one body; where this concentration has been partial, city government has failed.

This failure is due largely to the fact that, while power has centered, responsibility has been diffused. This unfortunate condition has been obviated by the adoption of the commission form which is found to be a success because it awakens civic interest, secures competent officials, and provides in the best possible manner for the legislative and administrative work of the city, centering power and responsibility in one small body of men.

APPENDIX IV

MATERIAL FOR BRIEFING

REPRESENTATIVE GOVERNMENT

SPEECH OF HON. CHARLES F. SCOTT, OF KANSAS, IN THE HOUSE OF REPRESENTATIVES, THURSDAY, MARCH 2, 1911

(The House having under consideration the bill [S. 7031] to codify, revise, and amend the laws relating to the judiciary.--From the _Congressional Record_, March 3, 1911.)

_Mr. Speaker_: In the ten years of my membership in this House I have seldom taken advantage of the lat.i.tude afforded by general debate to discuss any question not immediately before the House. But there is a question now before the country, particularly before the people of the state I have the honor to represent in part upon this floor, upon which I entertain very positive convictions, and which, I believe, is a proper subject for discussion at this time and in this place. That question, bluntly stated, is this: Is representative government a failure? We are being asked now to answer that question in the affirmative. A new school of statesmen has arisen, wiser than Washington and Hamilton and Franklin and Madison, wiser than Webster and Clay and Calhoun and Benton, wiser than Lincoln and Sumner and Stevens and Chase, wiser than Garfield and Elaine and McKinley and Taft, knowing more in their day than all the people have learned in all the days of the years since the Republic was founded.

And they tell us that representative government is a failure. They do not put this declaration into so many words--part of them because they do not know enough about the science of government to understand that the doctrines they advocate are revolutionary, and the rest of them because they lack the courage to openly declare that it is their intention to change our form of government, to subvert the system upon which our inst.i.tutions are founded. But that is in effect what they propose to do.

Every school boy knows that in a pure democracy the people themselves perform directly all the functions of government, enacting laws without the intervention of a legislature, and trying causes that arise under those laws without the intervention of judge or jury; while in a republic, on the other hand, the people govern themselves, not by each citizen exercising directly all the functions of government, but by delegating that power to certain ones among them whom they choose to represent them in the legislatures, in the courts of justice, and in the various executive offices.

It follows, therefore, that to subst.i.tute the methods of a democracy for the methods of a republic touching any one of the three branches of government is to that extent to declare that representative government is a failure, is to that extent subversive and revolutionary.

Now, it does not follow by any means that because a proposed change is revolutionary it is therefore unwise. Taking it by and large, wherever the word "revolution" has come into human history it has been only another word for progress. Because a nation has pursued certain methods for a long time it does not at all follow that those methods are the best, although when a nation like the United States, so bold and alert, so little hampered by tradition, so ready to try experiments, has clung to the same methods of government for 130 years, a strong presumption has certainly been established that these methods are the best, at least for that particular nation.

But is the new system wiser than the old--in the matter of making laws, for example? The old system vests the law-making power in a legislative body composed of men elected by the people and supposed to be peculiarly fitted by reason of character, education, and training for the performance of that duty. These men come together and give their entire time through a period of some weeks or months to the consideration of proposed legislation, and the laws they enact go into immediate effect, and remain in force until set aside by the courts as unconst.i.tutional or until repealed by the same authority that enacted them.

The new system--taking the Oregon law, for example, and it is commonly cited as a model--provides that 8 per cent of the voters of a state may submit a measure directly to the people, and if a majority of those voting upon it give it their support it shall become a law without reference to the legislature or to the governor. That is the initiative. And it provides that if 5 per cent of the voters are opposed to a law which the legislature has pa.s.sed, upon signing the proper pet.i.tion the law shall be suspended until the next general election, when the people shall be given an opportunity to pa.s.s upon it. That is the referendum.

Now, there are several things about this plan which I believe the people of this country, when they come really to consider it, will scrutinize with a good deal of care and possibly with some suspicion.

It is to be noted, in the first place, that a very few of the people can put all the people to the trouble and expense of a vote upon any measure, and the inquiry may well arise whether the cause of settled and orderly government will be promoted by vesting power in the minority thus to hara.s.s and annoy the majority. In my own state, for example, who can doubt that the prohibitory amendment, or some one of the statutes enacted for its enforcement, would have been resubmitted again and again if the initiative had been in force there these past twenty-five years.

Again, it will be observed that still fewer of the people have it in their power to suspend a law which a legislature may have pa.s.sed in plain obedience to the mandate of a majority of the people, or which may be essential to the prompt and orderly conduct of public affairs, and when they come to think about it the people may wonder if the referendum might not make it possible for a small, malevolent, and mischievous minority to obstruct the machinery of government and for a time at least to nullify the will of the majority.

In the third place, it is to be remarked that a measure submitted either by the initiative or the referendum cannot be amended, but must be accepted or rejected as a whole, and we may well inquire whether this might not afford "the interests" quite as good an opportunity as they would have in a legislature to "initiate" some measure which on its face was wholesome and beneficent but within which was concealed some little "joker" that would either nullify the good features of the law or make it actively vicious, and which, through lack of discussion, would not be discovered. Every day we have new and incontestable proof that "in the mult.i.tude of counselors there is wisdom." But that wisdom can never be had under a system of legislation which lays before the people the work of one man's mind to be accepted in whole or rejected altogether.

Once more let us observe that under this system, no matter how few votes are cast upon a given measure, if there are more for it than against it, it becomes a law, so that the possibility is always present that laws may be enacted which represent the judgment or the interest of the minority rather than the majority of the people.

Indeed, experience would seem to show that this is a probability rather than a possibility, for in the last Oregon election not one of the nine propositions enacted into law received as much as 50 per cent of the total vote cast, while some of them received but little more than 30 per cent of the total vote.

And finally and chiefly, without in the least impeaching the intelligence of the people, remembering the slight and casual attention the average citizen gives to the details of public questions, we may well inquire whether the average vote cast upon these proposed measures of legislation will really represent an informed and well-considered judgment. In his thoughtful work on democracy, discussing this very question, Dr. Hyslop, of Columbia University, says:

People occupied with their private affairs, domestic and social, demanding all their resources and attention, as a rule have little time to solve the complex problems of national life. The referendum is a call to perform all the duties of the profoundest statesmanship, in addition to private obligations, which are even much more than the average man can fulfil with any success or intelligence at all, and hence it can hardly produce anything better than the Athenian a.s.sembly, which terminated in anarchy. It will not secure dispatch except at the expense of civilization, nor deliberation except at the expense of intelligence. Very few questions can be safely left to its councils, and these only of the most general kind. A tribunal that can be so easily deceived as the electorate can be in common elections cannot be trusted to decide intelligently the graver and more complicated questions of public finance or private property, of administration, and of justice. It may be honest and mean well, as I believe it would be; but such an inst.i.tution can not govern.

That is the conclusion reached a priori by a profound student of men and of inst.i.tutions; and there is not a man who hears me or who may read what I am now saying but knows the conclusion is sound.

But, fortunately for the states which have not yet adopted the innovation, we are not obliged to rely upon academic, a priori reasoning, in order to reach a conclusion as to the wisdom of the initiative and referendum, for the step has already been taken in other states and we have their experience to guide us.

There is South Dakota, for example, where under the initiative the ballot which I hold in my hand was submitted to the people at the recent election. This ballot is 7 feet long and 14 inches wide, and it is crowded with reading matter set in nonpareil type. Upon this ballot there are submitted for the consideration of the people six legislative propositions. Four of them are short and comparatively simple. But here is one referring to the people a law which has been pa.s.sed at the preceding session of the legislature dividing the state into congressional districts. How many of the voters of South Dakota do you suppose got down their maps and their census reports and carefully worked out the details of that law to satisfy themselves whether or not it provided for a fair and honest districting of the state? They could not amend it, remember, they had to take it as it was or vote it down. In point of fact, they voted it down; but who will say that in doing this they expressed an enlightened judgment or merely followed the natural conservative instinct to vote "no" on a proposition they did not understand? And here is a law to provide for the organization, maintenance, equipment, and regulation of the National Guard of the state. This bill contains 76 sections. It occupies 4 feet 4 inches of this 7-foot ballot. It would fill two pages of an ordinary newspaper.

And here is a copy of the Oregon ballot, from which it appears that the stricken people of that commonwealth were called upon at the late election to consider 32 legislative propositions. Small wonder that it was well onto a month after election before the returns were all in.

And here is another const.i.tutional amendment in which the people are asked to pa.s.s judgment on such simple propositions as providing for verdict by three-fourths of jury in civil cases, authorizing grand juries to be summoned separately from the trial jury, permitting change of judicial system by statute prohibiting retrial where there is any evidence to support the verdict, providing for affirmance of judgment on appeal notwithstanding error committed in lower court and directing the Supreme Court to enter such judgment as should have been entered in the lower court, fixing terms of Supreme Court, providing that judges of all courts be elected for six years, subject to recall, and increasing the jurisdiction of the Supreme Court. Is it any wonder that with questions such as those thrust at them so large a percentage of the voters took to the "continuous woods where rolls the Oregon"

and refused to express a judgment one way or the other? Now, with all possible deference to the intelligence and the diligence of the good people of Oregon, is it conceivable that any considerable proportion of the voters of that commonwealth went to the polls with even a cursory knowledge of all the measures submitted for their determination?

As to the practical working of the referendum, I have seen it stated in the public prints that four years ago nearly every appropriation bill pa.s.sed by the Oregon legislature was referred to the people for their approval or rejection before it could go into effect. As a result, the appropriations being unavailable until the election could be held, the state was compelled to stamp its warrants "not paid for want of funds," and to pay interest thereon, although the money was in the treasury. The university and other state inst.i.tutions were hampered and embarra.s.sed, and the whole machinery of government was in large measure paralyzed. In other words, under the Oregon law a pitiful minority of the people was able to obstruct and embarra.s.s the usual and orderly processes of government, and for a time at least to absolutely thwart the will of an overwhelming majority of the people.

A system of government under which such a thing as that is not only possible, but has actually occurred, may be "the best system ever devised by the wit of man," as we have been vociferously a.s.sured, but some of us may take the liberty of doubting it.

But the initiative and referendum, subversive as they are of the representative principle, do not compare in importance or in possible power for evil with the recall. The statutes of every state in this Union provide a way by which a recreant official may be ousted from his office or otherwise punished. That way is by process of law, where charges must be specific, the testimony clear, and the judgment impartial. But what are we to think of a procedure under which an official is to be tried, not in a court by a jury of his peers and upon the testimony of witnesses sworn to tell the truth, but in the newspapers, on the street corners, and at political meetings? Can you conceive of a wider departure from the fundamental principles of justice that are written not only into the const.i.tution of every civilized nation on the face of the earth, but upon the heart of every normal human being, the principle that every man accused of a crime has a right to confront his accusers, to examine them under oath, to rebut their evidence, and to have the judgment finally of men sworn to render a just and lawful verdict.

Small wonder that the argument oftenest heard in support of a proposition so abhorrent to the most primitive instincts of justice is that it will be seldom invoked and therefore cannot do very much harm.

I leave you to characterize as it deserves a law whose chief merit must lie in the rarity of its enforcement.

But will it do no harm, even if seldom enforced? It is urged that its presence on the statute books and the knowledge that it can be invoked will frighten public officials into good behavior. Pa.s.sing by the very obvious suggestion that an official who needs to be scared into proper conduct ought never to have been elected in the first place, we may well inquire whether the real effect would not be to frighten men into demagogy--and thus to work immeasurably greater harm to the common weal than would ever be inflicted through the transgressions of deliberately bad men.

We have demagogues enough now, heaven knows, when election to an office a.s.sures the tenure of it for two or four or six years. But if that tenure were only from hour to hour, if it were held at the whim of a powerful and unscrupulous newspaper, for example, or if it could be put in jeopardy by an affront which in the line of duty ought, we will say, to be given to some organization or faction or cabal, what could we expect? Is it not inevitable that such a system would drive out of our public life the men of real character and courage and leave us only cowards and trimmers and time servers? May we not well hesitate to introduce into our political system a device which, had it been in vogue in the past, would have made it possible for the Tories to have recalled Washington, the copperheads to have recalled Lincoln, and the jingoes to have recalled McKinley?

In all the literature of the age-long struggle for freedom and justice there is no phrase that occurs oftener than "the independence of the judiciary." Not one man could be found now among all our ninety millions to declare that our Const.i.tution should be changed so as to permit the President in the White House or the Congress in the Capitol to dictate to our judges what their decisions should be. And yet it is seriously proposed that this power of dictation shall be given to the crowd on the street. That is what the recall means if applied to the judiciary; and it means the destruction of its independence as completely as if in set terms it were made subject to the President or the Congress.

Do you answer, "Oh, the recall will never be invoked except in an extreme case of obvious and flagrant injustice"? I reply, "How do you know?" It is the theory of the initiative that it will never be invoked except to pa.s.s a good law, and of the referendum that it will never be resorted to except to defeat a bad law; but we have already seen how easily a bad law might be initiated and a good law referred. And so it is the theory that the recall will be invoked only for the protection of the people from a bad judge. What guaranty can you give that it will not be called into being to harra.s.s and intimidate a good judge?

There never yet was a two-edged sword that would not cut both ways.

Mr. Chairman, I should be the last to a.s.sert that our present system of government has always brought ideally perfect results. Now and then the people have made mistakes in the selection of their representatives. Corrupt men have been put into places of trust, small men have been sent where large men were needed, ignorant men have been charged with duties which only men of learning could fitly perform.

But does it follow that because the people make mistakes in so simple a matter as the selection of their agents, they would be infallible in the incomparably more complex and difficult task of the enactment and interpretation of laws? There was never a more glaring non sequitur, and yet it is the very cornerstone upon which rests the whole structure of the new philosophy. "The people cannot be trusted with few things," runs this singular logic, "therefore let us put all things into their hands."