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THE GREEN BAG
THE MULTIPLICITY OF STATUTES BY ERNEST BRUNCKEN. FOR some time complaint has been heard very frequently that there are too many statutes passed by American legisla tures. At meetings of the bar associations, in periodicals legal and lay, in newspaper editorials and paragraphs the cry is echoed. But very rarely do the complainants seem to have a remedy to propose, beyond the some what general advice to the law-making bodies, to be good. This article proposes to show first, that the plethora of new statutory law is not really quite so great as a - simple counting of chapters would lead one to think; and sec ondly, that an excess of legislative activity is a natural result of our form of government, and would continue to exist even if all "cinch bills" and all lobbies looking for special privileges were to disappear. One of the reasons for the multiplicity of new statutes is clearly found in the provi sions contained in many state constitutions that each bill shall refer to but one subject. This makes it impossible to amend, for in stance, the Code of Civil Procedure by a single act, if a number of sections are to be changed. The courts have construed this provision quite strictly, as the State of Cali fornia found out to its cost. (Lewis v. Dunne, 134 Cal., 291.) If this provision did not exist, the biennial or annual number of chapters would probably be reduced very materially. Next, we must not forget that very much that goes by the name of legislation is really nothing but administrative regulation. Ap propriation acts that have to be renewed at each legislative session, bills authorizing the erection of a splash dam in Clear Creek, or fixing the salary of the county surveyor in Backwoods County, are really not the proper business of legislatures. Yet a very large number of chapters in the state laws deal with such trivialities. The federal legisla
tion in this regard is far more sensible and practical. It is rarely that an act of Con gress fixes the salary of subordinate officials. Even the number and character of the em ployees in a federal department is not usually fixed by law. Sometimes the building up of an entire branch of the service, with an elaborate hierarchy of officers, has no basis in specific legislation. Thus the United States Forestry Service was gradually organ ized in the Department of Agriculture with out any other statutory authority than a paragraph in each successive appropriation bill. There is no reason why the various states might not leave a greater discretion to their administrative departments in this regard. Similarly, if the principle of municipal home rule, such as cities in California and Missouri enjoy, were generally adopted, there would be a great lessening of chapters. For one can see at a glance that much legis lation, although general in form, is purely local and should be passed by the people im mediately concerned in it. Akin to the matter just spoken of is the custom of American legislatures to include in their statutes a great amount of detailed regulation which in other countries would be left to the discretion of the executive offi cials or boards. Undoubtedly they have been taught to do so by the courts which have held many a regulation left to admin istrative boards to be an unconstitutional delegation of legislative power. So far as a precise rule can be deduced from the rather contradictory decisions, it seems to be this, that an administrative board may make by laws regulating its own internal affairs, but none which affect or bind outsiders. It is not contended that this is a bad rule. But the fact remains, that the volumes of Ameri can statutes would become reasonably thin if all provisions could be left out, which in
