The Development of the Texas Constitution by Formal Amendment

239 43 19MB

English Pages 283

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

The Development of the Texas Constitution by Formal Amendment

Citation preview

UHE tfflV%LQBmiT GF W S TM&B GXm^lTWTim BT

;;■ j;

\

by

Tm Carl mmthm&m

A dissertation subraittod in partial fulfillnent of the requirements for the degree of Doctor of Philosophy, in the Departeexvb of Political Sciencef in the Graduate College of the State University of T a m July* 1942

ProQuest Number: 10984107

All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is d e p e n d e n t upon the quality of the copy subm itted. In the unlikely e v e n t that the a u thor did not send a c o m p le te m anuscript and there are missing pages, these will be noted. Also, if m aterial had to be rem oved, a n o te will ind ica te the deletion.

uest ProQuest 10984107 Published by ProQuest LLC(2018). C opyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C o d e M icroform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 4 8 1 0 6 - 1346

~TTe>4-a ' R s G t“r 'i '••■ t-

1

J r i X c w A u i ! *

The State of Texas has a Constitution which is about five times as long as the Constitution of the United States*

Only a very few state constitutions are longer,

and most of them are shorter.

The excessive verbiage of

the Texas Constitution is due largely to the fact that it was made at a time when it was felt that real democracy could be obtained only by diffusing authority in such a manner as to make it impossible for any official to exercise much authority, and by prescribing minute limitations on every agency of government. vr

Consequently, to make it possi-

ble for the Government of Texas to perform those functions

cidemanded of it numerous changes by formal amendment have R been required In the long and detailed document* The purpose of this dissertation has been to analyze the development of the Constitution by discovering the reason for each proposed amendment, and to explain the changes that were made by each amendment adopted*

In order

j to give a thorough explanation concerning all the circumNJ -^stances involved in the changes made, It was necessary also |to explain the changes that would have resulted from the x: *proposed amendments that were defeated. Without disparaging o pthe work of the constitutional forefathers it has been ^possible as a result of this analysis to make observations \r} \ relative to the defects of the system, and to suggest possible Improvements.

ill

Thanks are due to all those "who have helped to make this study possible* The author i© especially indotted to Dr* Kirk H* Porter and to Dr* John E. Briggs of the. State University of Iowa for guidance and advice, and to his wife for encouragement, sacrifices, and untir­ ing assistance*

Leo Carl Biethraayer July, 1942.

iv

CasmOTs Page

Chapter I* The Constitution of 1876 »

*



*



*

*

«

*

*

#

*

Historical Background....... t • 4 » 9 Character!sti cs of the Original Document * XX* Amendments Relating to Organization, Personnel, and Elections • . 29 The legislature • The Governor and Other Constitutional Executive Officers * Boards and Commissions • The Judiciary • . • *• + « # • » * • Suffrage, Elections and Office Holding *

*

*

*

XXX* Amendments Relating to Taxation

*

*

. 29

*

*

*

. 45 . 51 •• 61 W 9 - 74 *

*



©

• 85



* * * * * * * * * . 85 Changes in Tax Rates Classification of Objects of Taxation * « « . 89 Tax Exemptions, Discounts, Releases, and the Redemption of Property Sold for Taxes * * • • * « « * • • * • * • * . 93 .100 Limitations on Total Taxes Collected * . * * * * * * 101 Assessing and Collecting Taxes XT* Amendments Relating to State Regulation •

*

*

104



Banks * « * » * * » « • » « » » » • » » * Alcoholic Beverages Railroads ................ Y* Amendments Relating to Public Education

*

*

«

104 109 120

126



126 144

Elementary and Secondary Schools * * * * * Institutions of Higher Learning * * * * * * VI* Amendments Relating to Highways, Social Welfare and Other State Services *

a

»

158

s

State Highways « • • • • # < • « « « • * » * Social Welfare » • • * • * « « » « • « « » The Prison System • • • • • • . « • • * • State Financing of Farm Homes . . . . . . Workmen’s Compensation for State Employees State Printing Plant * * The Texas Centennial Celebration • • • *

158 166 . 186 . 187 . 189 . 190 • 191

«

Chapter

Pag©

VII# Amendments Relating to Political Subdivisions * 194 Counties ....... . 194 Municipalities 222 Irrigation, Reclamation and Conservation Districts 228 VIII#Some Observations

...........

233

References

243

Bibliography • • • ■ • « < • « * » » ( • • * * » •

272

*

*

*

1

CHAPTER I THE CONSTITUTION OF 1876 Historical Background In order thoroughly to understand the present Texas Constitution and its development by formal amendment, it is necessary, before even examining that document itself, to know something of its antecedents* As is well known, the area that is now Texas was a part ofthe Spanish possessions In the New World until the Mexican Revolution resulted In the promulgation of the National Mexican Constitution In 1824*

Under that Constitu­

tion, Texas became part of the Mexican Federal Union, which was modeled somewhat on the plan of the government of the 1 United States of America. The disputes between the Americans who had settled in Texas and the Mexican Government finally led to the Texas Revolution, the Declaration of Independence, and the adop­ tion of the Constitution of the Republic of Texas in 1836* After a decade of independence a state constitu­ tion that had been ratified by the people of the State was accepted in 1845 by the United States Congress which by joint resolution admitted Texas into the Union as one of the states of the United States. Since 1845, Texas has had five state constitu­ tions. However, many people have maintained that the first of the five constitutions, that of 1845* was superior to any

2

of the others.

Indeed, it is claimed that Daniel Webster

said at one time that it was the best of the American state constitutions. 2 The general structure of government provided by this constitution did not differ materially from that of the typical state government of 1845, and although the document was nearly twice as long as the Constitution of the Republic, it did not go into the minutest of details in the extreme manner of later constitutions,

One of the most commendable

features was the provision for the short ballot so far as state executive and judicial officers were concerned. How­ ever, by 1850, the wave of Jacksonian democracy which swept the country caused this feature to be scrapped, and by con­ stitutional amendment it was provided that judges of the Supreme Court, judges of the district courts, the AttorneyGeneral, district attorneys, the Comptroller, the State Treasurer, and the Commissioner of the General Land Office should be elected by direct vote, and that district judges and district attorneys should be chosen within their respec­ tive districts*

This was the only amendment received by

this Constitution under the formal amending process.

3

With the approach of the Civil War the question of secession from the Union brought changes in the Constitution by other methods.

On February 1, 1861, an extra-legal con­

vention passed an ordinance repealing the ordinance of an­ nexation of July 4, 1845, and passed ordinances ratifying the Constitution of the Confederate States of America and

3

requesting admission to the Confederation.

The same conven­

tion made changes in the Constitution so as to cause it to reflect the change of allegiance from the United States of America to the Confederate States of America.^ The outcome of the Civil War resulted in a demand by President Andrew Johnson for revision of the Constitution of 1861 so as to make it conform with the new conditions.

A

convention which met on February 7, 1866, wrote what was known as the Constitution of 1866. Among other things, the new constitution recognized the abolition of slavery, de­ clared secession illegal, and repudiated the war debt. Some changes in the details of the government were also made, but as a whole all changes mad© by the 1866 con­ vention were moderate ones.

The Governorrs tenure of office

was increased from two to four years and his salary raised from two thousand to four thousand a year* The compensation of legislators was raised from three dollars a day to eight dollars a day, and they were to receive eight dollars in­ stead of three dollars for each twenty-five miles traveled. The Supreme Court was enlarged from three judges to five, and their term of office increased from six years to ten years.

Salaries of the judges were raised from not less

than two thousand dollars a year to four thousand five hun­ dred dollars a year.

The terms of district judges were

lengthened from six years to eight years, and their sala­ ries were raised from not less than one thousand seven hun­ dred and fifty dollars a year to not less than three

4

thousand fiv© hundred dollars a year# The method of amending the Constitution was not changed#

It provided that two-thirds of each house could

propose an amendment, such an amendment to he published at least three months before the next general election of rep­ resentatives, at which ©lection the voters were to vote on the measure#

If a majority of the voters voting for repre­

sentatives voted for the amendment, and two-thirds of each house of the next Legislature also ratified it, then it be­ came a part of the Constitution# The Legislature, on a twothirds vote, could call a convention and fix the time and place of meeting# 5 The changes that were made in the Constitution were accepted by the voters on June 25, 1866#

On the same

day the general ©lection was held and the more important state offices were filled with men who had helped further the cause of the South during the Civil War# The United States Congress, which was not in ac­ cord with President Johnson*s program of reconstruction, was angered by the failure of the southern legislatures to ac­ cept the Fourteenth Amendment and by the reinstatement of southern leaders to positions of responsibility in their states, and passed over the veto of the President on March 2, 1867, an ”aot to provide for the more efficient government of the rebel states**. There were really three acts. Under the provisions of the first act, ten southern states were divided into five military districts, and made subject to

5

the military authority of th© United States, Louisiana mad© up the fifth district.

Texas and

Like the others, it

was placed under the command of a military commander, and soon over four thousand soldiers were distributed in the 6 towns and military posts of Texas. Senators and Represen­ tatives from Texas were refused seats in Congress, and the military commander removed from office the eleeted Governor and most other civil officers of the state.

Individuals

who supported Congress*s radical plan of reconstruction were 7 appointed to replace those removed. Part of the first of th© so-called Reconstruction Acts provided that when a state constitution that conformed with the Constitution of the United States had been framed by a convention of delegates elected by the qualified voters according to the provisions of the Fourteenth Amendment, and when the state legislature had ratified the Fourteenth Amendment, the state would be restored to representation in Congress.

In order to accomplish this end the appointed

Governor called a convention to frame a new constitution. Only those were permitted to vote for delegates who could take the "Iron-Clad Oath”. This disfranchised all who had participated in the "late rebellion", and the convention therefore was controlled by white men who were unfriendly to the native element of the State, and by representatives of & the newly enfranchised negroes. Of the ninety delegates that met in this "Reconstruction Convention" in intermittent sessions from June 1, 1868, to February 6, 1869, twelve were

6

Democrats friendly to the native element of the state, about thirty were moderate radicals, and the remainder, including nine negroes, were radicals of th© "scalawag" and "carpet9 bagger" type. Much of the time of the convention was de­ voted to a consideration of the division of Texas into three states, an investigation of crime and lawlessness, a consid­ eration of the relationship of the State to railroads, de­ termining who should be permitted to vote and how elections were to be conducted, to what extent education was to be pro­ vided, and to centralizing power in the hands of the Gover­ nor#

The convention never adjourned in a legal way, but the

members simply left, some in despair and disgust, some alone, and some in groups and factions*

The General in command of

the Fifth Military District finally had the records collect­ ed from the secretaries and clerks of the convention, and from the rough copies and minutes had clerical workers to complete the constitution*

On November 30, 1868, and the

three days following, the election for adoption of the con­ stitution was held.

It was adopted by a vote of 72,466 to

4,928. There were several provisions in the new constitu­ tion which tended to strengthen the Governor’s office*

The

term was increased from two to four years, and the salary was raised from four thousand dollars to five thousand dol­ lars* He was given the power to appoint, with the consent of the senate, the Attorney-General, the Secretary of State and several other administrative officials, the judges of

7

the Supreme Court and the judges of the district courts. Supreme Court judges were given terms of nine years, and district judges terms of eight years. abolished.

County courts were

Some of these provisions later became the sub­

ject of abuse which evoked much criticism and agitation for "reform".

Among the other features of the Constitution that

were distasteful to many of the people of frontier Texas were the provisions setting up a rather expensive school sys­ tem and those which provided for voting only at county seats over a period of four days for each election.

Enfranchise­

ment of the negroes, a system of registration, and several others could also be mentioned.

11

In all fairness, however, it can be said that the greatest amount of dissatisfaction was not with the Consti­ tution itself, but with the abusive actions of those In power under the Constitution*

On the same day that the Con­

stitution was adopted, the voters elected state officials. The Governor, E. I. Davis, and many of the other officials, including legislators, were representative of the radical Republican group that was in control of Congress at the time, and in their attempts to carry out the desires of that group they engendered the animosity and bitterness of much of the populace, Including most of the normal political leaders, of Texas. The first session of the Legislature that met under the new Constitution, a provisional session that met February 8, 1870, ratified the Fourteenth and Fifteenth Amendments to

8

the United States Constitution and elected two United States Senators*

Members of the United States House of Representa­

tives had been elected in an election which had been held on November 30, 1869*

Being able to determine the qualifica­

tions of voters and how the ©lection was to be conducted made it possible for the so-called radicals to have United States Senators and Representatives selected that were ac­ ceptable to, and seated by, the Reconstruction Congress.

On

April 16, 1870, the General in command of the military dis­ trict issued a proclamation remitting all civil authority in the State f,to the officers elected by the people** •12 In a special session which met April 26, 1870, the Legislature passed, at the Governor*s request, several laws which were obnoxious to a majority of the people of Texas. Even some members of the Legislature were arrested and not permitted to vote in order to get some of the measures enact13 ©a*

One of these acts organized the militia and divid­ ed it Into two classes, th© state guard, composed of volun­ teers and th© reserve militia, which included all ablebodied men between the ages of forty-five and eighteen, not enrolled in the state guard.

The Governor was empowered to

declare martial law in any county when he deemed it necessa­ ry for th© maintenance of the law. He could assess the ex­ pense of maintaining the forces called out upon th© county or counties placed under martial law, and for the trial and punishment of offenders he had the power to form military

9

commissions.

XL

Another law provided for a state police force.

In

addition to over two hundred and fifty regular state police­ men, all sheriffs, deputies, constables, and marshals of cities and towns were to be considered a part of the system and subject to the Governor and the Adjutant-General. 15 latter was made chief of the state police.

The

The exercise of the powers given to the Governor by these two laws aroused tremendous opposition and indigna­ tion.

There was widespread feeling that money was being

wasted in keeping so many employees on the payroll of the State and that these employees were being used to intimidate and otherwise unduly promote the interests of the group in power.

Many of the policemen were white desperadoes and

vicious negroes.

It was said that the state police was

costing the State over #230,000 a year, which was more than the entire expenses of the State before the Republicans got control.16 Matters were not Improved when the chief of the state police absconded with #30,000 of public money.17 Under the Congressional act of March 30, 1870, which readmitted Texas to the Union, a large number of state and local offices were made vacant.

The Legislature then

gave to the Governor the authority to fill these vacancies. The appointment, directly and indirectly, of over eight thousand five hundred political henchmen by the leader of a party that was not only unpopular but actually repugnant to the majority, gave grounds for no end of attack. 18

10

The details of other objactional laws could be given, but it should suffice merely to mention the fact that one of these provided for a system of registration by which white Democrats were easily disfranchised and negroes were registered in the "loosest manner”* Another did away with precinct elections and required elections to be held at the county seats over a period of four days.

The same election

law extended the terra of office for officials, unconstitu­ tionally, for one year by postponing an election for that period of time* Also, there was set up a public school sys­ tem, without provisions for racial segregation, which the people of the State felt was too expensive at that time for a state so sparsely inhabited as Texas*

Added to all the

other costs were huge bond subsidies to the railroads.

The

general property tax rate went from fifteen cents on the onehundred dollar valuation in 1866 to two dollars seventeen and one-half cents on the one-hundred dollar valuation in 1871.

In addition there were being levied poll taxes, occu­

pation taxes and license taxes* As a sort of climax, the Supreme Court, which was controlled by the Republican Gover­ nor, attempted unsuccessfully to nullify the election law under which the Democrats were again able to elect a Gover19 nor and other officials in 1873. Arguing that the Constitution of 1869 had permit­ ted the objectionable laws mentioned above, many individuals and newspapers began demanding a constitution under which such acts would be impossible.

And so by 1875, another

XI

constitutional convention was held and the constitution that is still in force was written*

20

The conditions that have been summarized, together with adverse agricultural conditions which existed in a state that was almost entirely agricultural, brought a de­ mand not only for the limiting and the diffusing of authori­ ty but also for retrenchment in governmental costs. Of the ninety delegates elected to the Convention of 1875t seventy-five were Democrats and fifteen were Repub­ licans.

Six of the Republicans were negroes.

Classified by

occupations, there were forty-one farmers, twenty-nine law­ yers, and a few merchants, editors, stockmen, and physicians. About one-half of the delegates were members of the State Grange.

The Convention assembled in Austin on the first Mon­

day in September, 1875. and adjourned on November 22, 1875* On the third Tuesday of February, 1876, the voters ratified the Constitution.

21

There was considerable criticism, especially by newspapers, of the personnel and some of their accomplish­ ments.

For example, much was said about the failure of the

Convention to employ a stenographer to keop a record of the debates after having spent several days discussing this relatively unimportant question.

It was said the salary of

the stenographer for the duration of the Convention would have been only about one-half of the cost of the time con­ sumed discussing the matter.

Determining their own salaries

as members of the Convention also consumed considerable time

12

and come In for Its share of criticism.

These actions

probably merely reflect the pioneer agricultural conditions under which, and for which, the Constitution of 1876 was made*

The delegates did what they thought was best for

Texas in 1875* Character!sties of the Original Document When completed, the Texas Constitution of 1876 filled about sixty-three average-sized printed pages.

It

was divided into a preamble and seventeen articles, and each article was subdivided into sections.

In all, there were

two hundred and eighty-nine sections. The seventeen article headings are indicative of the main phases of Texas government in 1875*

These were:

(1) Bill of Rights, (2) The Powers of Government, (3) Legis­ lative Department, (4) Executive Department, (5) Judicial Department, (6) Suffrage, (7) Education, (8) Taxation and Revenue, (9) Counties, (10) Railroads, (11) Municipal Cor­ porations, (12) Private Corporations, (13) Spanish and Mexi­ can Land Titles, (14) Public Lands and Land Office, (15) Im­ peachment, (16) General Provisions, and (17) Mode of Amend­ ing the Constitution. The Bill of Rights did not, as had the Bill of Rights of the Constitution of 1869, refer to the heresies of nullification and secession,

or declare that the Constitu­

tion of the United States and the laws and treaties made In pursuance thereof were the supreme law.

Instead, it de­

clared that Texas was a free and independent state, subject

13

only to th© Constitution of th® United States*

23

Th© legislative article provided for a senate of thirty-one members and a house of representatives of ninetythree members, with a provision making possible a maximum of on© hundred and fifty members in the house*

The Legislature

was empowered to enlarge th© membership of the House after each apportionment, upon the ratio of not more than one rep­ resentative to every 15,000 inhabitants, up to th© maximum. Th© senators were given four year terms, half of them being elected every two years, and the representatives were given two year terms, all of them being elected every two years. Representatives were to be apportioned according to popula­ tion and senators were to be apportioned according to quali­ fied electors.

Biennial sessions were provided for, with

the provision that the Governor could call special sessions limited to thirty days* duration and to a consideration of subjects proposed by the Governor. Members were to receive five dollars a day during the first sixty days of a session, and two dollars a day thereafter.

In addition they were to

receive a maximum mileage of twenty cents a mile.

Certain

qualifications for members as well as rules of procedure 24 were set forth in considerable detail. It was provided that the Legislature could pass laws necessary to carry into effect the provisions of the Constitution, but of the fifty-eight sections in the legis­ lative article over one-half placed restrictions and limita­ tions on the procedures and powers of the Legislature.

Thus

14 it can be seen that in their desire to prevent the reenact­ ment of legislation of the type enacted during the so-called radical administration, the framers not only placed limita­ tions in a Bill of Rights, but also wrote into the legisla­ tive article numerous specific restrictions upon legislation 25 itself, and upon the manner in which it was to be enacted. Some of the disadvantages of going to such extremes were seen even in those days by some individuals and were dis­ cussed by Governor Richard Coice in his first message to the 26 Legislature which met in 1876. The executive article provided for an Executive Department consisting of a Governor, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Treasur­ er, Commissioner of the General Land Office and Attorney General.

Believing that democracy could only be attained

through the use of the long ballot, the convention made all of these officials elective except the Secretary of State. They were all given two year terms.

The Governor* s salary

was fixed at four thousand dollars a year plus use of the Governor*s mansion, fixtures ana furniture.

The Lieutenant

Governor was to receive, as President of the Senate, the same compensation as Senators, but when serving as Governor, he was to receive the same compensation as the Governor. The Secretary of State was to be appointed by the Governor with the advice and consent of the Senate and receive a salary of two thousand dollars.

The Attorney General was to receive a

salary of two thousand dollars plus not over the same amount in fees.

The other executive officers were to receive

15

two thousand five hundred dollars a year.

The office of

Superintendent of Public Instruction, which had been provid­ ed for in the Constitution of 1S69* was eliminated.

Powers

and duties were prescribed for the above officers and a num­ ber of limitations were placed on several of them.

The

Governor was charged with the duty of having the laws faith­ fully executed, but since the other executive officers, the prosecuting attorneys and the other law enforcing officers were not made responsible to the Governor it was impossible for him to exercise this power. Not only was the appointing power of the Governor greatly limited through the use of the long ballot and by requiring senatorial confirmation, but he was given no independent power to remove even those that he 27 had appointed. Stipulating such low salaries In the Constitution was generally condemned by the newspapers of Texas as well as by some of th© more able members of the Convention at the 2S time the retrenchment program was carried out. There were also individuals who realized that efficient execution of the laws was Impossible with a diffusion of executive author­ ity among several officials who were independent of one an­ other, and with responsibility, but little authority in the hands of the Governor.

The problem was brought before the 29 Legislature by Governor Coke as early as 1G76. From what has been stated above, it can be seen

why the Governor never became a real chief executive. As he became a party leader, or at least in Texas a political

16

faction loader, he did use what executive power he possessed, and the veto and other legislative powers, to become a sort of chief legislator, but h© could not become a real chief executive* The judicial article provided for a supreme court of three judges which was to be the highest appellate court in civil cases, a court of appeals of three judges which was to be the highest appellate court in criminal cases, district courts, county courts, and justice of the peace courts. All judges were made elective.

Supreme Court judges and

judges of the Court of Appeals were given six-year terms, district judges four-year terms, and county judges and jus­ tices of the peace two-year terms.

Judges of the Supreme

Court were to receive not more than three thousand five hun­ dred and fifty dollars.

Judges of the Court of Appeals were

to receive exactly that amount, district judges were to re­ ceive two thousand five hundred dollars, and county judges and justices of the peace were to be paid on a fee basis. Qualifications for the various judgeships were set forth. For the higher positions these Included either the practice of law or service on the bench as a judge, or a combination of these two, for at least seven years.

Since a county

judge merely had to "be well informed in the law of the State**, it meant that a person without any legal training could sit on a higher court if he had sufficient experience as county judge, or as a county and district judge.

Dis­

trict judges were required to have served as a judge or

17

practiced law for four years*

Provisions were mad© for

county attorneys, county sheriffs, county clerks and dis­ trict clerks, and the legislature was authorized to pro­ vide for district attorneys where necessary. All of these officials were to he elected and compensation was on a fee basis#

In the case of district attorneys it was stated that

they should receive an annual salary of five hundred dollars from the State, and such fees, commissions and perquisites as may be provided by law#

The jurisdiction of the various

courts was partly determined by the framers of the Constitu­ tion# Also, numerous rules of procedure were given* by jury was guaranteed.

Trial

Provisions wer© also made for the

county commissioners* court, which in reality was not a court at all, but a board of four members elected from four commissioners* precincts, who, together with the county judge, were to exercise jurisdiction over certain county business.

Thus the principal administrative agency of the

county was given a judicial title and treated in the judi30 cial article# Governor Coke in pointing out the defects of the Constitution to the Legislature in 1G76, said in part: The judicial system framed by this article as a whole and in all its parts is, in my judgment, th© most faulty, inefficient and expensive one that has ever been suggested. • • . It is fatally vitiated by the following prominent faults; It provides for two high courts of last resort, giv­ ing supremacy to neithef. . . . It establishes county courts, conferring on them extensive gener­ al and statutory jurisdiction, and prescribes no qualification for the judges. . . . It

18

abolishes the office of district attorney, hereto­ fore filled by men of learning, ability and exper­ ience, and substitutes that of county attorney* . • # It extends the jurisdiction of justices of the peace over matters and rights more important than should be submitted to the judgment of men usually unlearned in the law* * * * It provides salaries for district judges which are insufficient to sup­ port them in many districts* 31 One authority in commenting on th© Texas judiciary a few years ago said, nThe most obvious defect in the Texas judiciary is Its loose organization* courts, but just a set of courts*

It is not a system of

* . * Duplication of

jurisdiction; multiplication of appeals, reversals, remanding, and retrials; and duplication of records at the expense of both litigants and taxpayers are unpreventable results of 32 the present organization*" The suffrage article gave disqualifications and qualifications for voting*

Persons under twenty-one years

of age, idiots and lunatics, paupers supported by any coun­ ty, felons, soldiers, marines and seamen, employed in the service of the Army or Navy of the United States were de­ nied the voting privilege*

Persons not subject to any of

the above disqualifications who were citizens of the United States or who had declared their intentions of becoming citizens, and who had a residence of one year next preceding an election in the State and six months in the County were deemed qualified ©lectors* Voters were to vote in the elec­ tion precinct of their residence, and legislation requiring the registration of voters was specifically prohibited. all eases except treason, felony or breach of the peace,

In

19

voters were to be privilegedfrom arrest during their atten­ dance at elections, and in going to and returning there­ from*^ The article on education dealt with the public free schools, asylums, and the University* All funds, lands and other property which had previously been set apart and appropriated for the support of public schools, all the alternate sections of land which had been reserved by the State out of grants made or that were to be made to rail­ roads or other corporations, one-half of the public domain of the State, and all sums of money that were to come to the State from the sale of any portion of these properties, were to constitute a perpetual public school fund*

There was

made provision for the investment of the money derived from the lands and other property in State and National bonds, and the income so derived, together with not more than onefourth of the revenue derived from the state occupation taxes and a poll tax of one dollar on all male inhabitants between the ages of twenty-one and sixty years, was to con­ stitute an available fund for the benefit of the public free schools* Separate schools were to be provided for white and colored children, it being specifically stated that impar­ tial provision was to be made for both.

The Governor, Comp­

troller, and Secretary of State were to constitute a Board of Education for the purpose of distributing school funds to the counties and performing such other duties concerning public schools as prescribed by law* As has been stated,

20

there was no provision for a State Superintendent of Schools. 34 Lands and other properties which had previously been granted to the Lunatic, Blind, Deaf and Dumb, and Orphan Asylums were again set apart, and the Legislature was authorized to provide for the investment of proceeds to provide for the support and improvement of the asylums* 35 The Legislature was directed to establish as soon as practicable "a University of the first class"* It was to include an Agricultural and Mechanical department.

Over a

million acres of land v/ere set aside to be used in creating a permanent University fund, but this amount was only about one-third as much as had been previously ear-marked for the 36 University. The attitude of the framers toward higher education Is further reflected In a section in which the Legislature was forbidden to levy any tax, or make any ap­ propriation out of the general revenue, for the purpose of establishing and erecting buildings for the University of Texas. 37 Organization for work was not achieved until 1883# and because there was little income from a million acres of then almost worthless land, the University had insufficient buildings and an otherwise Inadequate plant until many years later, when oil was discovered on some of its lands. The article on taxation provided that taxation should be equal and uniform, and that all property, whether owned by natural persons or corporations, other than munici­ pal, should be taxed in proportion to its value.

The

5369B8

21

Legislature was empowered to Impose a poll tax, occupation taxes, except on municipal corporations doing business in this State and on persons engaged in mechanical and agri­ cultural pursuits, and Income taxes on incomes of both natural persons and corporations other than municipal*

Ex­

emptions from taxation were given to each family on two hun­ dred and fifty dollars worth of household and kitchen furni­ ture, and the Legislature was authorized to exempt public property used for public purposes, places of religious wor­ ship, places of burial not held for private and corporate profits, buildings used exclusively and owned by persons or associations of persons for school purposes, and institutions of purely public charity.

The roadbeds and fixtures of rail­

roads were to be assessed and the taxes collected in the counties where situated.

The rolling stock was to be as­

sessed in gross in the county where the principal office of each company was located, and the tax collected was to be apportioned among the counties by the Comptroller in propor­ tion to the number of miles of railroad in each county. Among a number of other limitations, it was provided that the state tax on property, exclusive of the tax necessary to pay the public debt, should never exceed1fifty.cents on the one hundred dollars valuation, and no* county ,.'city or town should levy more than one-half of the state/tax, except for the payment of debts already incurred, and for the erection of public buildings not to exceed fifty cents on the one hundred dollars in any on© year and as otherwise provided

22

la the Constitution,

The voters of each county were to

eXeot an assessor of taxes and a collector of taxes, with the exception that in counties having less than ten thou­ sand inhabitants the sheriff was to have the duty of eollooting taxes* Numerous other details relative to the taxing procedure were written into this part of the Con38 stitution. The article on counties gave the Legislature power to create counties, subject to certain limitations relative to the minimum size, shape, etc.

Certain limitations were

also stipulated in connection with the power of the Legis­ lature to change existing county boundaries, and to regulate the manner of determining and removing of county seats. 39 The article on railroads recognized existing rail­ road companies and their rights, but declared them to be common carriers and gave to the Legislature the power to correct abuses and prevent unjust discrimination.

Quite a

number of regulations were written into the Constitution, l*or example, railroads built after the framing of the Con­ stitution should not pass within a distance of three miles of any county seat without passing through the same, and establishing and maintaining a depot therein, unless pre­ vented by natural obstacles, such as streams, hills or moun­ tains;

provided, such town or its citizens granted the right

of way through its limits and sufficient ground for ordinary 40 depot purposes* Counties were recognized as legal subdivisions of

23

the State in the article on municipal corporations and the Legislature was authorized to make provisions for certain of their functions.41 Cities and towns having a population of ten thou­ sand inhabitants or less were to be chartered only by gener­ al law, and were permitted to collect a tax not to exceed one-fourth of on© per cent of the value of the taxable prop­ erty*

Cities having more than ten thousand inhabitants

could have their charters granted or amended by special act of the Legislature, and were permitted to collect taxes as authorized by law, but not to exceed two and one-half per cent of the value of the taxable property*

In addition,

cities were allowed to collect taxes for certain special purposes, and the Legislature was authorized to constitute any city or town a separate and Independent school dis42 trict. An article on private corporations specified that such corporations should only be created by general laws, and certain regulations governing them were set forth, with the provision that additional regulations could be made by the Legislature.43 Certain land claims and titles were recognised in the article on Spanish and Mexican land titles, and certain other claims were invalidated unless certain conditions had 44 been fulfilled* The article on public lands and land of­ fice established a General Land Office which was entrusted with the care of the public domain, The legislature was

24

given power to grant not more than sixteen sections of land to any railway company for each mile of railroad constructed with the limitation that no land certificate was to be is­ sued until at least ten miles of road had been "equipped, constructed, and in running order".

Homesteads amounting to

one hundred and sixty acres for heads of families and eighty acres for single men eighteen years of age or older were to be donated to those without homesteads, upon the condition that they would select and locate the land, occupy it three years, and pay the office fees on it.

The State also released to owners all mines and minerals on their land.45 The methods to be used in removing state officials from office were given in the impeachment article.

The

House of Representatives was given the power to impeach, and the Senate the power to try, and with a two-thirds majority to remove, the Governor, Lieutenant Governor, Attorney Gen­ eral, Treasurer, Commissioner of the General Land Office, Comptroller, judges of the Supreme Court, judges of the Court of Appeals, and judges of district courts.

By follow­

ing a certain procedure the Supreme Court could also remove district court judges, and the judges of all of the above mentioned courts could be removed by the Governor on the address of two-thirds of each house of the Legislature for certain causes that would not have been sufficient grounds for impeachment.

Finally, the Legislature was authorized

to "provide by law for the trial and removal from office of

25

all officers of the State, the modes for which have not been provided in this Constitution*” In practice this last pro­ vision has prohibited the Governor from exercising any inde­ pendent removing power It would seem that most subjects of government could have been more than adequately treated in the fifteen articles that have been mentioned, but the framers of the Constitution thought it necessary to add an article of fifty-seven sections on general provisions.

A host of mat­

ters, largely of a statutory nature, were detailed in an unorganized manner so as to make of this article a sort of catch-all conglomeration*

It included the oath for offi­

cials, and part of the penalty for fighting duels, practic­ ing bribery, perjury, forgery and other offenses.

The Legis­

lature was forbidden to make appropriations for private or individual purposes, to Issue paper of any description in­ tended to circulate as money, to appropriate money for the purpose of assisting immigrants to come to Texas, and to exempt by special law any man or group of men from the per­ formance of any public duty or service. Also the Legisla­ ture was directed to enact legislation on a number of sub­ jects. For example, it was to provide for deductions from the salaries of officers who neglected their duties; it was to enact a law whereby the qualified voters of any county, justice’s precinct, town or city, by a majority vote, could determine whether the sale of intoxicating liquors should be prohibited; it was to prescribe the qualifications of

26

grand and petit jurors and to stipulate the duties and com­ pensation of certain designated county officials.

In addi­

tion* the Legislature was given permission to enact fence laws, stock laws, laws for the regulation of the practice of medicine, for the establishment of a board of health and vital statistics, for the establishment of the office of commissioner of insurance, statistics and history, for the establishment of an inebriate asylum, for the payment of pensions to veterans of the Texas Revolution and signers of the Declaration of Independence of Texas, and numerous other laws of various types.

The article also contained the

homestead provision which defined a homestead as not more than two hundred acres of land, or if in a city or town a lot or lots not exceeding five thousand dollars in value, and protected such a homestead from forced sale for the pay­ ment of debts except for the purchase money thereof, or a part of it, taxes, or for work and materials used in con­ structing improvements on the homestead*

A married owner of

a homestead was not permitted to sell a homestead without the consent of his wife.

The legal rate of interest in the

State was not to exceed eight per cent, except that by con­ tract parties could agree on any rate not to exceed twelve per cent. All property belonging to a woman before her marriage was to remain her separate property after marriage. Ho corporate body could be created, renewed or extended with banking or discounting privileges.

Printing, with certain

exceptions, was to be by oontract.

Current wages for

27

personal service were never to be subject to garnishment. The duration of all offices not fixed by the Constitution was never to exceed two years. Three million acres of the public domain were set apart for th© purpose of erecting a new State Capitol and other necessary public buildings at the seat of 47 the government. These samples of the contents of the arti­ cle on general provisions give a feeling that the members of the Convention were unaware of the fact that economic, social, and political conditions change, and that they were afraid that the people of later generations could not be trusted to have an interest in their own welfare. The last article offers a method of amending the Constitution* Amendments could be proposed by a two-thirds vote of both houses of the Legislature at any regular session*, They then had to be published once a week for four weeks, com­ mencing at least three months before an election, the time of which was to be specified by the Legislature, in one weekly newspaper of each county in which such a newspaper was pub­ lished. This meant that the Legislature could provide that an amendment should be voted on in a general election or it could provide for a special election on a specified date. To be ratified, a proposed amendment had to receive a majority of the total votes cast for and against the proposal* Ho 48 method of revising the Constitution was included* Although not as easy as the amending procedure in operation in some states, the Texas method of amending the Constitution was, and is, far from as difficult as that used

28 49 In a number of states* Since 1876, a total of one hundred and sixty amendments have been proposed by thirty-two of the thir­ ty-four regular sessions of the Legislature that have met since 50 that date* Eighty-four of these have been adopted, and seventy have been rejected by the voters*

One was never submitted; one

was submitted illegally; and four that have been proposed are still to be voted upon by the voters in 1942* Only seven of the forty-eight state constitutions of today are longer than the more than 30,000-word Texas Constitu­ tion* The Model State Constitution with slightly over 10,000 words is longer than constitutions in use in several states* We have the type of constitution described because the conditions mentioned in preceding parts of this chapter caused the framers to want to diffuse authority to such an ex­ tent that no official or agency of government could become very powerful*

This diffusion was partially accomplished by

applying the erroneous theory which holds that real democracy can be obtained only through the use of the long ballot, i*e*, by electing for short terms, not only the policy-forming offi­ cers, but also purely administrative and judicial officers. Hot only were powers, duties, and procedures set forth in great detail, but in addition numerous limitations of all kinds were placed on the agencies of the government. This at­ tempt to include all the fundamentals of democratic government, and most of the non-fundamentals as well, resulted in a de­ tailed statutory code of legislative, judicial, and administra­ tive procedure which has naturally required numerous amendments* It is with those amendments that the succeeding chapters of this study are primarily concerned.

29

CHAPTER II AMENDMENTS RELATING TO ORGANIZATION, PERSONNEL, AND ELECTIONS The Legislature

vaiMiiMMaHHiMMWtAMMiMwMMrtMMMtaNikMMMnp

The Constitution of 1876 provided in considerable detail for the organization, powers, and procedures of the Legislature*

In this chapter an attempt will be mad© to

examine the changes in those provisions that have been made, or attempted, by formal constitutional amendment. The Constitution of 1869 had provided for annual legislative sessions of unlimited duration and for salaries of eight dollars a day for legislators.

In the constitu­

tional convention of 1875 the compensation of members of the Legislature was fixed at not more than five dollars a day for the first sixty days of each session, and at not more than two dollars a day for service in excess of that period. In addition, members were entitled to mileage not to exceed five dollars for every twenty-five miles traveled in going to and returning from the capital by the nearest and most direct route of travel by land.

During special sessions the

compensation was also five dollars a day. However, no mile­ age was allowed in connection with any special session called within one day after the adjournment of a regular or called session. 51 Since regular sessions were biennial, and called or special sessions could not be of longer duration than

30

thirty days* the amounts paid annual to legislators were 52 certainly not large* Dissatisfaction with the low pay made its appearance soon after the first sessions of the Legislature under the new constitution*

In fact, there were

some members in the constitutional convention who wanted the original document to provide for better compensation, but 53 their efforts were of no avail* Since most of the biennial sessions lasted more than sixty days, there were especially many objections to the two dollar limitation on service in excess of sixty days in regular sessions* 54 In 1801, the Legislature proposed a constitutional amendment which would have mad© changes in the salary provisions by fixing the salaries of legislators at not more than five dollars a day for the duration of each session* However, the length of regular sessions would have been limited to a maximum of one hundred days. 55 be no change in mileage allowances*

There was to

Supporters of the proposed change maintained that Texas should be ashamed of the inadequate salaries paid its officials and that the proposed increase would amount to on­ ly about sixty dollars for each legislator annually.

It was

asserted furthermore that the State needed the best talent— which could be secured only by paying good salaries* A news­ paper editorial includes some of the arguments of the propo­ nents:

31

The time has long since past when men of worth are willing to immolate themselves or sacri­ fice private interests, upon the altar of their country, simply for honor and glory. This is an age when it requires money to buy bread and meat and clothing, and good, honest men are not willing to work without them. . . . Besides, it is unjust and unfair to expect a man to work for the State at a less price than he would work for a private citizen. To be plain, a man whose services are not worth $5 per day is not fit to be a member of the legislature. 56 However, the voters were not ready to make a change, and the proposal was defeated in a special elec­ tion held on the first Tuesday in September, 1881. Another effort was made, in 1887, to get an amendment adopted to lengthen the period for which even as much as five dollars per day could be paid the legislators. This time the only change proposed would have permitted the payment of a per diem of as much as five dollars for the first ninety days of each session instead of for the first sixty days. 57 Although the interested voters defeated the mea­ sure in a special election held the first Thursday in August, 1887, the quoted sentences of an editorial reflect the type of arguments made for the constitutional change* The Increase in per diem is only $90 to each member, and will not amount to much. The people of Texas cannot afford to have their laws made and affairs managed by $2-a day lawmakers. Representa­ tive men cannot be found willing to spend their time in Austin at $2 a day. There are a few cheap 2Tohn demagogues, who are willing to go to the state capital for this sum, but as a general rule it would pay the state better to give them double this sum and have them remain at home. A legislator should have as much good sense as a first-class mechanic eg and they are worth a first-class mechanic's wages.

32

Ten years later, in 1897, the Legislature proposed an amendment to permit salaries of as much as five dollars a day for the first one hundred days and three dollars a day 59 thereafter* Mileage would not have been affected* Prior to the defeat of this proposal in the general election of 1898, the voters were given reasons for supporting it that were similar to those given in 1881 and 1887.

The press of

the State was not, however, solidly behind the measure.

The

following is from an editorial which appeared in The Dallas Morning News after the ©lection: If the proposal had provided for higher pay and a shorter session many would have supported it. Long sessions of the Legislature should not be en­ couraged. In some of the states, and to an extent in Texas, long sittings are given over largely to politicians who congregate at the capital to formu­ late slates and to lobbyists who win great advanta­ ges by delays and extensions of time. . . . But the chief objection to long sessions is that they tend to encourage legislation. . . . At the ap­ proaching session of the Texas Legislature it is doubtful whether as many as half a dozen changes of importance should be attempted. . . . The work which it would be wise to undertake could pro­ bably be accomplished in twenty days without any hurry* 60 The next unsuccessful attempt to amend the section relating to legislative salaries was made in 1905, and would have made greater changes than previous proposals.

Legisla­

tors were to receive a sum not to exceed one thousand dollars for the year succeeding their election, payable in equal In­ stallments, on the first days of January, February, March and April, and five dollars per day for each day of every special session held during the second year of the term* In

33

addition they wore to receive mileage not to exceed three cents per mile.

Legislators were also to be forbidden to

accept any free transportation over any railv/ay line or lines in Texas, or to accept, receive, have, use, or enjoy, directly or indirectly, for themselves or any other person, any free pass, frank, rebate, privilege or advantage not ac­ corded to the general public from any railroad company, tele­ graph company, telephone company, sleeping car company, or other corporation, or any persons, firm or corporation act­ ing as a common carrier in Texas. Any legislator violating 61 these provisions was to forfeit his office. The proposition was defeated in the general elec­ tion of 1906.

The following editorial points out some of

its defects and indicates why the voters were urged to vote against it: Voters should not fail to vote against the proposed constitutional amendment to increase the pay of members of the Legislature. It is coupled with a proposition that if the pay should be raised the members of the Legislature will give up their free passes; but it is left to the Legislature to enact laws to make the amendment effective. The proposition Is not a fair one, and it is not deserv­ ing of consideration. Besides, the amendment as drawn makes no provision whatever for paying State Senators during the third and fourth years of their service. [Senators have four-year terms and repre­ sentatives two-year terms.] The result would be that, in the event of the adoption of the amendment, members of the House of Representatives could draw twice as much pay in four years as members of the Senate. That would be preposterous and unfair. The amendment should be voted down. 62 During the next session of the Legislature, in 1907, another proposal was made to increase legislative

34

salaries.

Legislators were to receive #1,000 during the

first year of their terms,#5.00 a day for each special session of the second year, and mileage at the rate of three cents per mile.

Nothing was said this time about free 63 railroad passes and other special privileges. Prior to the special election in which the proposal

was defeated, August 6, 1907, the supporters of the measure Insisted that better pay secured better service in every­ thing else, why not in law-making?

They also said that under

the existing twenty cents per mile mileage some members re­ ceived as much as two hundred dollars more per session than others who lived near Austin.

64

The following statement, on

the other hand, is typical. of those made by the opponents of the proposal: In the opinion of The News there will be no appreciable improvement in the quality of our law­ making until the membership of the Legislature is reduced. To increase the cost of our lawmaking, therefore, would be a useless expenditure of money, under present conditions* 65 Only 9,517 votes were cast for the proposed amend­ ment.

The opposition polled 71,970.

The proposition sub­

mitted in 1905 had received 27,354 favorable, and 55,808 unfavorable votes. The next attempt to make the desired change was made in 1913*

In that year it was proposed to pay legisla­

tors twelve hundred dollars for the year in which regular sessions were held, payable in equal Installments on the twentieth days of January, April, July, and October of the

35

regular session year, and five dollars for each day of ©very special session held in the next year* Mileage not to ex­ ceed five cents a mile was to be paid,

and each regular

session was to continue until its business was disposed of*

6(

The Democratic State Convention which met in San Antonio, August 13, 1908, had adopted a platform which con­ tained the following plank, "We favor decreasing the number and increasing the compensation of the legislators of this 67 State#n So although this proposed amendment did not pro­ vide for a reduction in the number of the legislators, it did, by proposing increased compensation, reflect, partially at least, the wishes of political leaders of the State. Those who advocated both increased compensation and longer sessions expressed themselves in the following and similar statements: Members of the Legislature are now paid $5 a day for the first sixty days of regular session, and $2 a day thereafter* The practical effect is to chop off the regular session at the end of sixty days#. This is too short a period for the proper transaction of business. The consequences are that many good bills die on the calendar and that others get through in bad shape* Moreover, the situation is such that few men are willing'to re­ main in the Legislature more than on© term, and, therefore, the point has been reached where there is little of experience in the Legislature. This condition cries for a remedy* The proposed amend­ ment, in the judgment of The Mews, is such a remedy— a long step in the right direction* 68 All of the efforts to induce the voters to approve the change were of no avail* general election of 1914*

The proposal was defeated in

36

During the same session in which the preceding proposal was made, the Legislature also submitted another salary amendment.

This one provided that all state, dis­

trict, county and precinct officers should be paid salaries 69 fixed by the Legislature, It was also defeated, but in a special election held July 19, 1913# The problem was approached in the same manner a few years later when in the general election of 1920 the Legislature again sought unsuccessfully to secure voter ratification of an amendment which had been proposed in 1919, and which would have given the Legislature the power to fix the salaries of all state, district, county and precinct 70 officers. The following editorial was printed in support of the measure which was defeated in 1920; It is worthy of consideration in this connec­ tion that the State Constitutions generally leave the Legislatures free to fix the salaries of offi­ cers and that the Federal Constitution leaves the fixing of salaries entirely in the hands of Con­ gress. We have heard it suggested that it would be absurd to permit the Legislature to fix its own rate of compensation. An adequate answer is that Congress always has fixed the compensation of its members, and that its acts in this regard never have excited protest of consequence. An elastic system of compensating public officials so that salaries may be such as to secure efficient service is needed, and this amendment, we think, provides for such a system. 71 By 1921, the Legislature was again asking for a specific salary increase and also for more time at the better pay in which to do its work.

In a special election

37

Held th© fourth Saturday In August of the same year the voters defeated a proposal which would have permitted legislators to have maximum salaries of ten dollars a day for one hundred and twenty days, and not over five dollars per day for the remainder of the session. Members were also to re­ ceive ten dollars per day during si>eoial sessions, and mile72 age at ten cents per mile# Advocates of th© proposed change asserted that a better legislative product, at lower cost, would result from one continuous session of one hundred and twenty days than from three of four called sessions lasting from one hundred and fifty to one hundred and seventy-five days.

It was also

said that since there would be fewer special sessions less mileage would have to b© paid to legislators. 73 In 19^7, an unsuccessful effort was made to add to the Constitution a section which would have increased not only the salaries of the legislators, but also the salary of the Governor, which would have been raised from $4,000 a year to $10,000 a year.

It provided that legislators were to re­

ceive not more than fifteen hundred dollars per year, and 74 actual traveling expenses for one round trip for each session* Th© voters expressed their opposition in a special election on August 1, I927* An interesting negative argument was expressed in th© following editorial shortly before the measure was de­ feated:

3&

The compensation allowed members of the Legis­ lature Is inadequate, and ridiculously so* But if the present compensation is niggardly, the compen­ sation which this amendment proposes would he ex­ travagant, going almost as far toward one extreme as the existing provision of the Constitution is toward the other* The degree of its extravagance will he made more appreciable when it is said that, whereas, the average of salary hills for th© last three Legislatures, including the present one, has been $91,394 every two years, it would he $454,600 every biennium, assuming, as may very safely be done, that the maximum of $1,500 a year which the amendment would authorize should be prescribed by statute. * . * While it is neither just nor expedient to require men to sacrifice their person­ al interests to the degree that they are now re­ quired in rendering legislative service, neither is it expedient at least to make the emoluments of the office attractive to men of small earning abili­ ty, and so it would be if the compensation were fixed at $3,000 per term* It Is, therefore, not only like­ ly, but almost certain, that to-fix such a salary as this amendment proposes would have the effect of lowering rather than of raising the level of legis­ lative competence* While It is not desirable that legislative service should impose a loss on those who render it, the opportunity which the office of­ fers to men who render public service should be preserved as the chief inducement* Such a salary would make the office profitable to a class of men who are not qualified, and would deprive it of its attractiveness to men who are. 75 Finally in the general election of 1930, the voters approved an amendment which had been proposed in 1929, and which provided for both increased compensation and longer sessions* As amended, the Constitution provides that legis­ lators shall receive not to exceed ten dollars a day for the first one hundred and twenty days of each regular session, and not to exceed five dollars a day for the remainder of the session* At the same time that the salary was increased from five dollars a day for the first sixty days to ten dollars a

39

day for the first one hundred and twenty days, the mileage of members was reduced from a maximum of five dollars for every twenty-five miles traveled to a maximum of two dollars and fifty cents for every twenty-five miles traveled in going to and returning from the capitol.

76

Part of an editorial supporting at least certain features of the amendment is quoted: Paying a legislator by how long he works and not by how far he travels to go to work encourages work instead of travel. This year the Legislature tra­ veled, but did mighty little work. A reversal of the situation would be welcome. Fewer special sessions and more attention to business would be acceptable. The amendments really give the Legis­ lature a chance to achieve some such results. Present arrangements are hopelessly antiquated under modern demands on the Senate and House. 77 Although this amendment adopted in 1930 made possi­ ble

the payment of not only a higher per diem but alsothe

higher per diem, for a greater period of time, numerousefforts have been made since 1930 to secure the submission of an amendment which would permit another increase.

It is said

by many that present salaries for legislators are wholly inadequate. With the tremendous importance of the govern­ ment’s business it is asserted that every effort should be made to secure in the Legislature the services of the most able individuals in the State. Under present conditions they can be expected to serve the State in a full-time capac­ ity only if adequately compensated. On the other hand, some efforts have been made to cause the public to believe that legislators, as well as

40

other officials, receive more than they deserve* An expres­ sion of this Idea, which no doubt has had much to do with the retention of the existing system, is found in th© quoted editorial*

It is characteristic of the arguments that are

made against the payment of better salaries: Pay of the Legislators The late and unlamented session of the Legis­ lature is at an end at last, thank Heaven* It Is water over the dam (this word can be spelled two ways) so let’s not make ourselves unnecessarily unhappy by brooding over the unpleasant past* But you have heard, as you will hear again and again, a great deal about the "miserly pay" of legislators* So let’s examine just one item of the record of this recent longest session in Tex­ as history* The session lasted 171 days* Hach member of the House and Senate earn— that is to say, each member received $10 per day for the first 120 days and §5'per day thereafter as salary for his, shall we say, "work-" That amounts to §1,455 legis­ lator in a little less than six months— which is at the rat© of about §3>000 per year* Then, of course, they had no worries about such matters of secretaries, clerks, traveling expenses, office rent, flunkies, etc., etc., etc* All those items go with th© job* True, all members of the Legislature have to take practically all their time from personal af­ fairs during the period of sessions. Unquestiona­ bly it is Inconvenient and requires sacrifice of some of them. But isn't it common sense to sup­ pose that the prestige of being in the Legislature means extra business— usually extra business that Is perfectly legitimate— for most of the individual legislators? Do you believe that the average legis­ lator, or any considerable number of them, earns in private life at the rate of §225 per month— which is the rate at which legislators were paid in the recent session? If It could be shown beyond question that most of the legislators serve at a personal sacrifice, then we would be prepared to join th© movement seek­ ing Increased pay for them.

u

But for the moment, we are not the one who would be willing to stand within hearing of the legislators and shout something on the order of, "Boys, herets a |3»000 per year job for one of you." Being trampled to death would be too un­ pleasant as a method of suicide, 7 8 What is an adequate salary at on© time may not be at all an adequate one in later years. All the many efforts to make changes in a detail that probably should never have been in the Constitution simply resulted in a slightly in­ creased per diem, again fixed in the Constitution, An amendment affecting the procedure of the Legis­ lature was proposed in 1929, and adopted in the general election of 1930, at the same time the amendment changing legislators* salaries was adopted* form of the split session.

It gave Texas a modified

Originally the Constitution

simply stated that the Legislature should meet every two years, at such times as provided by law, and at other times when convened by the governor.

The amendment provided that

the Legislature shall meet every two years as provided by law, and when convened by the Governor,

The first one hun­

dred and twenty days of regular sessions are divided into three parts.

During the first thirty days bills and resolu­

tions are to be introduced, emergency matters acted upon, and recess appointments of the Governor acted upon.

During

the second thirty days there are to be committee hearingsto consider bills and resolutions and such emergency matters as may be submitted by the Governor.

During the following sixty

days there is to be action upon pending bills and resolutions,

42

and upon emergency matters submitted by the Governor. Either house, however, is specifically authorized to determine its 79 own order of business by a four-fifths vote of its membership. This attempt to prescribe an order of business and procedure in addition to that already prescribed has meant little in actual legislative practice. A strict application of these rules would be so impractical at times as to make it impossible for the Legislature to do even as well as it does by suspending the rules. A strict application, for ex­ ample, would prohibit any sessions or the transaction of any business except that of an emergency nature during the second thirty-day period.

The result is, of course, that by four-

fifths vote the houses agree to do business as they did before this amendment was adopted*

80

Again something was

placed in the Constitution, this time by an amendment, that did not properly belong in a constitution. In 1935 an amendment was proposed for the purpose of expanding the Legislature1s power of proposing constitu­ tional amendments.

Under the original Constitution amend81 ments could be proposed only in regular biennial sessions. The proposed amendment of 1935 would have permitted the Legislature also to propose amendments in special sessions 82 if requested or submitted by the Governor. An editorial explains why this amendment was pro­ posed:

43

This amendment is admittedly designed for on© purpose— to permit a special session this Fall to submit an amendment authorizing additional relief bonds, if such bonds should be needed* For th© emergency which likely will develop, this amend­ ment seems forced upon us at this time. Neverthe­ less, it would do away with the only check which has existed upon the practice of amending the Constitution which has grown to such proportions that every biennial election is loaded damn with propositions for change. If the amendment is adopted for the benefit of relief bonds, it will certainly be used for the benefit of other propo­ sitions, so that we shall likely have amendments proposed at all times, instead of merely at the biennial elections. [The last word in the preced-go ing sentence should more properly be "sessions".! The proposal was defeated in a special election, August 24, 1935, by a vote of 238,25$ to 214,024. The most recent amendment directly affecting the Legislature was concerned with limiting representation from certain areas, and it is of special interest since it re­ veals that the voters of Texas are still not willing to give up rural control of the Legislature.

The growth of cities

in several Texas counties brought a demand for more repre­ sentatives for those counties. Under tho constitutional provision that representation in the House of Representa­ tives should be according to population, the cities were al­ ready under represented when the amendment under considera­ tion was adopted in th© general ©lection of 1936, since there had been no r©apportionment since the 1920 census; but there had been considerable growth in the population of several of th© larger cities.

Realising that when, and if,

the constitutional mandate to reapportion under tho old

44

formula was carried out, the urban counties would gain at the expense of the rural counties, the Legislature proposed an amendment in 1935» which provides that no county may have more than seven members in the House of Representatives un­ less such a county has a population of more than seven hun­ dred thousand, and in that event there can be only one ad­ ditional representative for eaoh hundred thousand popula-

The adoption of this amendment meant that area be­ came more important than population as a factor of represen­ tation not only in the Senate, where no county has ever been permitted to have more than one senator, but also, so far as certain important parts of the State are concerned, in the House of Representatives. To a certain extent it means the principle of representation in proportion to population has been superseded in both houses by the principle of represen­ tation by area. In discussing the objectives of those responsible for the submission of the measure, a staff writer of The Pallas Morning Hews made the following observations: The cities of the State are growing more rapidly than the towns and rural areas and, as a result, counties having cities will acquire, under the existing rule, an increasing percentage of the 1$0 seats in the House and so reduce the representation of the rual areas both absolutely and relatively* It is to prevent that inevitable though probable far distant consequence that the proposed amendment is offered* * * * Harris County would be deprived of two representatives which otherwise it would be entitled to, and Dallas County one* Doubtless Bexar would be de­ prived of one when the apportionment should be made on the basis of the 1940 census* * . the proposal is bora of the belief that there is a

45

menace to the State*s welfare in urban preponder­ ance, 85 The position taken by the opponents of the pro­ posed amendment is illustrated by the following editorial: The change in legislative representation is un­ justified and unwise* It would limit represen­ tation to geographical rather than to popula­ tion districts. In the long run, it is sounder democracy to assure a given number of people an equal voice in legislative policy, 86 It Is extremely interesting and somewhat puzzling to notice that the proposition to limit urban representation gained considerable support in several of the larger Texas cities. These editorial comments are at least partially ex­ planatory: The main surprise in the vote on amendments Is that Dallas County citizens helped vote them­ selves out of fair representation in the lower House of the State Legislature* It was antici­ pated that the rural counties would vote for the amendment giving; them a disproportionately large representation. The approval of Dallas County for this unfair and undemocratic amendment, which will deprive Dallas and Harris Counties of their rightful representation, shows that the import of the amendment was not understood* It looks as if city voters were more ignorant than their country cousins, 87 The Governor and Other Constitutional Executive Officers Most of the proposed amendments considered in this section involve proposed changes in the salaries of execu­ tive officers, especially of the Governor,

Between 190? and

1935* six amendments were proposed for the purpose of secur­ ing specific increases in the salaries of executive officers,

46

and two were proposed which, if adopted, would-have given the Legislature the power to fix these as well as other state, district, county, and precinct salaries* In carrying out their program of retrenchment, the framers of the Constitution had reduced the Governor1s salary from #5,000 to #4,000 per year, plus use of the Governor’s mansion, fixtures, and furniture*

In the

general election of 1908, the voters were given their first opportunity to express themselves on the question of rais­ ing the compensation of the Governor and the Lieutenant Governor*

They voted by more than two to one against a

proposal which had been proposed in 1907 to increase the Governor*s salary to #8,000 per year, and to enlarge the compensation of the Lieutenant Governor from that of a mem„ ' gq her of the Legislature to #2,500 per year* There were of course persons who had pointed to the need of paying what were said to be salaries commensu­ rate with the dignity of the office, but on the other hand when an opportunity was presented to make the change, the measure was given merely a lukewarm reception*

The follow­

ing editorial comments are indicative of the attitude that was manifested: The public has not been informed of the reasons for this proposed increase of salaries. There may be some good reasons for same, but if so, they have not been put before the people. 90 The next proposition of this type was voted upon at a special election held July 19, 1910*

This time they

refused to give the Legislature authority to determine the

47

salaries of state, district, county and precinct officers*

on

Six years later, in 1919, the Legislature made a doublebarrelled effort to get the salary raised by proposing two amendments*

The adoption of either would have accomplished

what was desired*

One attempted to raise the salary of the

Governor to $10,000 per year, and the other would have per­ mitted the Legislature to fix all salaries* The former re­ ceived a negative vote in a special election on the fourth Saturday in May, 1919; the latter, in the general election 92 of 1920* The affirmative arguments on the proposition to give the Legislature blanket authority to fix salaries in­ cluded reference to the fact that the Legislature had been free to fix the compensation of all officers other than constitutional officers, and had not as a result of that authority established excessive or extravagant salaries. Hence, it was said, the Legislature could be depended on to fix reasonable salaries for all officers.^ During the legislative session of 1921 an amend­ ment was proposed which viould have, had it been ratified, increased the Goverr.or* s salary from $>4*000 to not more than $8,000.

It also proposed to raise the compensation of

the Secretary of State from $2,000 to 15*000, and the salaries of $2,500 for the Comptroller of Public Accounts, the Treasurer, and the Commissioner of the General Land Of­ fice were to be increased to $5,000 per year.

The Attorney-

AS

General, who had originally been allowed an annual salary of not more than #2 ,000 plus a maximum of $2,000 in fees, was to receive, under the new provision, an annual salary of $7*500 with no additional fees,^ The advocates of this measure insisted that the existing salaries were unjust, unfair, and totally inade­ quate for the duties and responsibilities of the office, They said that "good men should not be asked to serve for suoh low p a y n e v e r t h e l e s s the proposal was defeated by a vote of more than two to one, 68,223 to 25,778, in a special ©lection July 23, 1921# The next effort to increase salaries was made in 1927# An amendment of that year proposed to raise the Governor*s salary to $10,000 a year and the Legislators* salaries to a maximum of $1,500 annually plus actual travel­ ing expenses for one round txtLp per session.

The salaries 96 of all other officers vfere to be fixed by statute, A highly interesting point of view was taken by on© editorial writer in opposing this insasure.

Several sen­

tences are quoted: The adoption of this amendment would greatly expand the authority of the Legislature in the matter of fixing the compensation of public offi­ cers, Already its authority in that respect is greater than it ought to be, since it is an author­ ity which supplies public servants with an incen­ tive and an Instigation to unite their power and influence in legislative contests, and so make the personal and special interest of a single class a factor which might easily determine the outcome of many contests which should be determined solely by

49

considerations of public welfare# Tliat is an evil, perhaps more potential than actual, which would be aggravated by the adoption of the amendment. Four thousand dollars a year is much toolittle to pay Governors of Texas; and #10,000 a year, which the pending amendment proposes to pay, is not too much# The compensation of the Attorney General ($2,000 in salary, plus that amount in fees, if collected) is also much less than the service of a capable Attorney General is worth# As much may be said of the salaries of the Comptroller, the Treasurer, Commissioner of the General land Office and the Secretary of state, $2,500 being the amount for the first three named and $2,000 for the Secretary of State. The amendment does not pre­ scribe what the salaries of these shall be, and at least as to the Attorney General, Treasurer, Comp­ troller and Land Commissioner, that is a defect. For The News can conceive of no reason, in princi­ ple or policy, why the salary attached to one elec­ tive office should be fixed by the Constitution while the salaries attached to four other elective offices should be left to the determination of the Legislature. The News believes that the compensa­ tion of elected State officers should be fixed by the people by prescription of the Constitution. • * , 97 A special election m s held August 1, 1927, for the purpose of giving the voters an opportunity to express their opinions on the salary proposition.

Only 21,581

voters approved of the measure, while 167,288 were opposed to it. The Legislature in 1929 proposed another amendment which affected only the Governor*s salary.

It would have

simply increased it from the $4,000 per year to $10,000 per year#^

A special referendum on the proposition luly 16,

1929, resulted in 76,166 negative votes to only 49,644 af­ firmative votes* Finally, in the general election of 1936, the

50

voters ratified an amendment which had been proposed in 1935* This change in the Constitution, which was adopted by the vote of 326,856 votes to 275,060, raised the compensation of the Governor from $4,000 to $10,000, that of the Attorney General from. $2,000, plus a maximum of $2,000 in fees, to $10,000; that of the Secretary of State from $2,000 to $6,000; and those of the Comptroller of public Accounts, the Treasurer, the Commissioner of the General land Office from $2,500 to $6,000 a year*^ Before the election, advocates of the measure said that the new salary level proposed for the important state officials more nearly approximated the dignity of the of­ fices,

They pointed out that only one state, South Dakota,

which paid $.3,000, paid its Governor less than did Texas, They insisted that $4,000 per year provided for in the re­ actionary convention of 1875 had been made grotesquely in­ adequate by the altered modern conditions On© amendment affecting executive officers, but not their salaries, was proposed in 1939* It involved the power to appoint notaries public* Originally the Constitu­ tion contained the following section: Sec, 26, The Governor, by and with the advice and consent oftwo-thirds of the Senate, shall ap­ point a convenient number of notaries public for each county who shall perform such duties as now are or may bo jxrescribed ^y low, 101 The proposal of 1939, which m s adopted in the general ©lection of 1940* transferred the power to appoint

51

the notaries public to the Secretary of State.

Senatorial

confirmation is no longer required, but the Legislature was directed to prescribe the qualifications of the notaries 102 public* In 1941 ancillary legislation was enacted which prescribed qualifications of notaries public and set forth 103 the procedure to be followed in making the selections. The change that was brought about as a result of the adoj>tIon of this amendment was desired in order to simplify a routine mattei* that demanded too much attention of both the Legislature and the Governor*104 In practice the legislators from the various districts approve a list of notaries public for their respective districts, and formerly the Governor had the more or less clerical function of submitting the names on these lists to the Senate for confirmation* It was felt that such a routine duty should more properly be performed by the Secretary of State. Boards and Commissions The structure of boards and commissions has not been affected a great deal in Texas by constitutional amend­ ments*

Of over one hundred and fifty administrative agen­

cies in existence today, only a few have been provided for by constitutional amendment. The Constitution had declared railroads to be public highways and railway companies to be common carriers, and the Legislature was directed to pass laws to correct

52

abuses and prevent unjust discrimination and extortion, to pass laws establishing reasonable maximum rates, and to enforce all such laws by adequate penalties. 105 Following a vigorous campaign for regulation of railroads, there was adopted in 1890 an

amendment which gave to the Legislature

the power to establish all requisite agencies for regulating railroads.

It had been doubted by many that the Legisla­

ture had authority to create such an agency before the adop­ tion of this amendment, but with this doubt removed, the Legislature, in 1891, established an appointive Commission of three members with power to regulate rates and to prevent abuses and unjust discrimination*

During the next session

10 6 of the Legislature, powers of the Commission were broadened* In an effort to fix the organization of the Rail­ road Commission in the Constitution and to make and keep it popularly elected, there was submitted and adopted an amend­ ment in 1894, which provided ,fthat when a Railroad Commis­ sion is created by law it shall be composed of three Commis­ sioners who shall be elected by the people at a general elec­ tion for State officers, and their terms of office shall be six years, Although the Constitution gives to the Railroad Commission only the power to regulate railroads, that agency has been given by law numerous other duties, which together with the expansion of the powers of the Interstate Commerce Commission, have left the regulating of railroads as one of

53

the least important of its functions*

The regulation of oil

and gas production is an example of one of its most important powers, but one that is not mentioned in the Constitution* Much has been written by experts in public adminis­ tration about the disadvantages of having the members of an administrative agency selected by popular election*

There is

also considerable opposition to the practice of stereotyping into a constitution the details of administrative organiza­ tion*

It is said that administrative organization should

remain flexible so that It can be adjusted from time to time by legislation to meet the needs of a developing political system*

This last mentioned principle which permits flexi­

bility was followed by the framers of the Model State Oonsti108 tutlon* In 1907, the Legislature proposed an amendment which provided for a Commissioner of Agriculture, who was to be either elected by the people or appointed by the Governor with the consent of the Senate, as determined by the Legis­ lature*

The Legislature was to provide for his term of of­

fice, duties, and salary.

In addition, the Legislature was

to be given authority, when required by public interest to establish a bureau of labor within the department, headed by the Commissioner of Agriculture*

109

Reasons for submitting the proposal are given in the following editorial comments;

54

Texas is an agricultural empire* Ho matter what progress it may make in a manufacturing way- the time will never come when agriculture will lose Its supremacy. Such'a department as it is pro­ posed to create will, if manned efficiently, con­ tribute materially to the effort that is being mad© to reduce the hazards of farming. 110 Although the proposed amendment was defeated, the Legisla­ ture nevertheless created the office of Commissioner of Agriculture during the same year, and two years later, in n i 1909* it provided for the Bureau of Labor Statistics. It seems that the Legislature had the power to do itoe3.f what It had attempted to do by means of constitutional amend­ ment. Two amendments affecting boards and commissions were proposed in 1911 and adopted in the general election of 1912.

One of them substituted for the existing statu­

tory Board of Prison Commissioners a constitutional, body of three members with six-year overlapping terms.

One new

member was appointed by the Governor, with the consent of the Senate, every two years. 112 After the adoption of the measure, the Legislature, in putting it into operation, prescribed a salary of three hundred dollars per month for each member and gave all members full-time duties* 113 The members of the statutory agency -which had charge of the prison system before 1912 had terms of only two years, and it was thought by many people that if they were given six-year overlapping terms the effect of politics would be less noticeable in the administration of the prison system.114

55

The other amendment affecting administrative agen­ cies limited the application of an original provision ip the Constitution which read as follows: Sec. 30. The duration of all offices not fixed by this Constitution shall never exceed two years* 115 The change made in 1912 permitted the Legislature to prescribe six-year overlapping terms, one third of the membership being selected every two years by a method deter­ mined by law,

for the ’’members of the Board of Regents of

the State University and Boards of Trustees or Managers of the educational, eleemosynary, and penal institutions of the State, and such boards as have been, or m y hereafter 116 be established by law”. In 1900, and 1902, the Democratic Party had adopt­ ed platform planks calling for the change that was mad© In 1912.

The plank of 1902 is reproduced:

We declare it to be the fixed policy of the Democratic party to take our public schools and other institutions of learning out of politics, and we, therefore, reiterate the demand of the Democratic platform of 1900 for the submission of a constitutional amendment .making the appoint­ ment of trustees of our schools, colleges and University for terms of two, four, six and eight years. 117 Hewspaper editorial also expressed reasons for the submission of the measure: Under the present terms of the Constitution, mem­ bers of the boards of regents or boards of manag­ ers of our institutions of higher learning, and of all other State institutions, can serve for only two years. This means that those Institutions

56

are subject to complete revolution with each change of administration, are more or less em­ broiled in politics, and are without continuity of policy. In this way many good and conscientious officials are made to step down and out just as they have learned their business and begun to be useful to the State* 118 Make the terms of the trustees of various educa­ tional and eleemosynary institutions, including those of the Penitentiary Commissioners, six years, so arranged as to bring about only one vacancy in each of these boards every two years* * * * [The) effect of it will be to place these various Institutions above the reach of sordid political considerations, and until that shall have been don© they can never be put upon the highest plane of efficiency* The adoption of this amendment will be a strengthening of the foundation of them, and with their foundation thus strengthened we may reasonably hope to build them into magnificent structures, 119 After the adoption of these two amendments in 1912, dissatisfaction arose with the way in which the prison sys­ tem was being administered by the three-member full time prison commission. The penitentiary system had had and was still having financial difficulties, By 1921 it owed the State Treasury #550,000 that the legislature had authorized advanced.

Critics said that one good business man could

manage the prison system far better than three commissioners 120

had ever managed it*

As a result of this dissatisfaction, an amendment was proposed in 1921 which would have abolished the constitu­ tional Board of Prison Commissioners.

It simply provided

that 11the Legislature should have full power and authority to provide by law for the management and control of the Prison System of Texas; and to this end shall have power

57

and authority to place the Prison System under the super­ vision, management and control of ouch officer or offi­ cers as the Legislature nay from time to time provide for 121

by law«M

The measure, however, was defeated in a special

©lection on July 23, 1921. The amendment was again proposed in 1925, and sub­ mitted to the voters in the general election of 1926. 122

time it was adopted.

Tills

Before the ©lotion the voters were

urged to support the measure with the folloxving editorial comments: It is contemplated that if this amendment shall be adopted the prison board shall he appointed bi­ ennially, and that its members shall serve without more than nominal compensation as was the case prior to 1911* It is also contemplated that legis­ lation shall be enacted authorizing this board to select a manager in whom all executive authority shall be vested. This amendment m s fostered by the Texas Committee on Prisons and Prison Labor, and so far as The Hews knows, has met with no op­ position • It is said that the plan is identical with the city manager plan of cities and the govern­ ment In vogue in our Institutions of higher learn­ ing. It can also bo truthfully said that it is in line with the government of corporations and other business institutions. 123 After the adoption of the amendment, the Legisla­ ture, in 1927, created a nine-member lay board, Imovjn as the Board of Prison Commissioners, which selects a manager of the prison system.

The members of the Board are ap­

pointed by the Governor with the consent of the Senate for six-year overlapping terras. Three members are appointed every two years.

12A.

Whereas the former constitutional

5*

Board of Prison Commissioners performed both directional and executive functions, the agency created by law in 1927 performs only directorial functions*

It selects a general

manager who is responsible for the administration of both the policies enunciated as laws by the Legislature and the rules and regulations adopted by the governing board* Apparently the method that is now used to adminis­ ter the prison system is one that could have been used even though the Constitution had never been amended* An agency, the composition of which was fixed, was simply provided for by constitutional amendment, and later the constitutional administrative agency was abolished*

The fact that it was

desirable to abolish the three-member administrative agency can be used as an argument against the use of multi-membered agencies of this type for direct administrative functions* Moreover, the fact that it took sixteen years to bring about the desired change in the structure and functions of the prison.commission can be used as an argument against stereo­ typing into a constitution the details of administrative organization* The Constitution originally provided for a State Board of Education which was composed of the Governor, the Comptroller of Public Accounts, and the Secretary of State* It was given the function of distributing certain funds to the counties and of performing other legal duties relating 125 to public schools*

59

Since the Governor and the Comptroller are popu­ larly elected, they must necessarily he involved in politics. Educators and other individuals complained that this meant that the Board of Education was composed of politicians who mad© decisions involving the schools not on the basis of sound educational administration, but according to what they thought would he best for their political fortunes.

126

As a result of the criticisms, a constitutional amendment was proposed in 1927 and adopted in the general ©lection of 1928. It gave the Legislature power to create a State Board of Education, to determine how it should be selected, what duties it should perform, and what hind of terms the members should have, with the limitation that 127 terms could not exceed six years. In ancillary legisla­ tion, enacted in 1929, the Legislature created a Stats Board of Education mad© up of nine members. They are appointed by the Governor with senatorial e mfirsatlon and serve for six year terms* Three members are appointed every two 128 years. In this case an amendment was necessary only be­ cause the framers of the Constitution had attempted to deter­ mine In a hard and fast manner the nature of a piece of fu­ ture administrative machinery* Under the Original Constitution the Governor was given the power in all criminal cases, except those involv­ ing treason and impeachment, to grant reprieves, commutations of punishment and pardons, and under rules prescribed by the

60

Legislature, he had the power to remit fines and forfeitures. With the advice and consent of the Senate, he could even grant pardons in cases of treason. The extensive use of the pardoning power by some Texas Governors caused severe criticism.

Also, some Govern­

ors, and other persons too, felt that this function could be more properly handled by a separate governmental agency. These conditions were responsible for the adoption of an amendment, in the general election of 1936, which created a three-member Board of Pardons and Paroles.

One member is

appointed by the Governor, one by the Chief Justice of the Supreme Court of Texas, and one by the presiding justice of the Court of Criminal Appeals.

In all three cases the con­

sent of the Senate is required. The members have six-year overlapping terns.

The Board, or at least a majority of Its

members, must recommend reprieves, commutations of punish­ ment, and pardons before they car. be ma.de by the- Governor, except that he may grant one reprieve in any capital case not to exceed thirty days, and he has the power to revoke paroles and conditional pardons. Under the rules of the Legislature, and upon the advice of the Board of Pardons and Paroles, the Governor m y remit fines and forfeitures, and with the advice and consent of the Legislature he may grant reprieves, commutations of punishment, and pardons in cases of treason.110 During the campaign for adoption of the amendment,

61

newspaper staff writers and editorial writers did their part in urging the voters to support the proposal.

Two illustra­

tive quotations which incidentally help to explain the reasons for the submission of the measure follow; The proposed amendment has two prime purposes* One is to relieve Governors of the great labor and harassment they are subjected to by being be­ sought for clemency, and the other to immunize the pardoning power as much as possible from the in­ fection of political influences* * * * It has been stated that all former Governors now living as well as the present Governor, are in favor of the amendment* 131 Texas should also approve the proposed change in the pardoning power of Governors, making the clemency for convicted criminals a matter of trained study instead of emotional pressure* Government in Texas has no doubt been improved through the adoption of this amendment* However, it is possible that an amendment with general provisions instead of one outlining in such detail the structure of the agency would have proved more satisfactory.

If it ever becomes

necessary to make changes in the structure of the existing board, it will be raore difficult to do so than it would have been had the details of its organization been left to the Legislature. The Judiciary The judicial article, which was long and detailed, has been almost completely rewritten by amending it. There were attempts to make changes in this article from the very beginning*

In a special election in 1SG1, a pi’oposal was

defeated which affected six sections.

The Supreme Court

would have been enlarged from thro© to seven judges, and would have sat in two divisions.

However, a question could

have been referred to the whole court if one member dis­ sented In either division.

The justices were to alternate

from one division to the other according to rules set up by the court. All judges were to be elected for six year terms, and they were to select a chief justice from their own mem­ bers for a two-year term.

Their salaries were to be raised

from not more than #3*550 to not less than #3*600.

The Su­

preme Courtfs appellate jurisdiction would have been enlarged to extend over county court cases, and the Legislature would have been empowered to authorize the issuance of certain writs. Salaries of the judges of the Court of Appeals would also have been Increased from #39550 to not less than #3,600, and the Governor was to be authorized to fill va­ cancies in this court. It was no longer to exercise civil jurisdiction, and certain cases which had been filed were to be transferred to the Supreme Court* District Courts would have been given appellate jurisdiction over county commis­ sioners1 courts, and original jurisdiction over all. cases not otherwise provided for.

The minimum number of terras of

county court was to be changed from six to four each year, and certain changes were also to be made In the procedure 133 of county courts.

63

The following editorials help to explain why this amendment was submitted: AS matters now stand, we practically and virtu­ ally have three courts of last resort, two of them at least being equal in authority, an anomaly not presented in any other country* If the amendment is adopted all the civil business will be sent to the Supreme Court and that court, with its working force increased by one and all working under the same general management, will be able to transact business more rapidly and harmoniously# • « * The amendment would take away from the Court of Appeals its present civil jurisdiction, and con­ fine it to criminal business altogether* This will enable it to keep up with its business better than it has ever done before* The change in the Supreme Court is in increasing the number of judges from 3 to 7 and providing for the organization of the court into two separate bodies of equal author­ ity, but so adjusted as to prevent the possibility of a conflict in their decisions* 134 Provision has been made for the establishment of a Supreme Court adequate in number and organization to the disposal of all appeals, and for reducing very considerably tho number of county courts. Hew judicial districts and a greater number of district attorneyships have been created to meet the wants of an increasing population* 133 In 1883* a new section yms added by the adoption of an amendment in a special election held the second Tues­ day in August.

Instead of six, there were to be at least

four terms of the county court annually as provided by the Legislature or by tho governing agency of the county, the county coimnissionersf court* Unless one of these bodies specified otherwise, the terms were to begin on the first Mondays of February, May, August, and November, and tho court could remain in session three weeks*

Also, the Legis­

lature was permitted to determine how prosecutions could be

64

commenced in the county courts* In a special election held the first Thursday in Allgust, 1887* the voters defeated a proposed amendment which consisted of an entirely new article of thirty-five sections* It described in detail the structure, jurisdiction, and pro­ cedure of a set of courts which included a Supreme Court, one court of appeals, district courts, and such inferior courts as might be created by the Legislature* The Supreme Court was to consist of not less than five nor more than seven judges as determined by lav/* They were to be elected for six-year overlapping terms, receive a salary of not more than $3 ,600, and they were to select one of their own members as Chief Justice* changes in qualifications*

There were no

The Court of Appeals was to con­

sist of three judges elected for the same terms, of the same qualifications, and they were to receive the same salaries as judges of the Supreme Court* The qualifications of dis­ trict court judges were raised from their previous level* It is significant that this proposal did not give constitu­ tional status to county courts or to county commissioners* courts*'1'^ These changes were desired because of claims that the practical operation of the court system had demonstrated that the Supreme Court, composed of only three judges, was unable to dispose of its business. It was also said that unnecessarily heavy burdens had been placed on the higher

65

courts because the Inferior courts were improperly constitute ed 9 and because of faulty procedure#

The existing system

assertedly had also resulted in the loss of much time and money because of the numerous decays in the administration of justice* The Texas Bar Association and Governor Ross endorsed the unsuccessful measure One newspaper editor wot© the following comments; {The amendment] seeks to change, modernize and ex* tend the judiciary system of the state. Lawyers and litigants have long since discovered the abso­ lute need for a revision of this important branch of our government. The present judiciary system is altogether inadequate* The rapid development of the state has increased the amount of litiga­ tion until the wheels of justice have become clogged. Both civil and criminal suits have to be delayed, much to the detriment and loss of our people. 119 A twenty-eight-hundred-word amendment which altered thirteen sections was adopted in a special ©lection held the second Tuesday in August, 1891* and gave Texas its present system.

It created a Supreme Court, a Court of Criminal

Appeals, courts of civil appeals, district courts, county courts, commissionersf courts, justice of the peace courts, and such other courts as may be set up by law. The Supreme Court was left a three-judge body elected for six-year overlapping terms.

Qualifications of

judges were not changed, but salaries were boosted to $4*000 until changed by law. Some changes were made in jurisdic­ tion and procedure.

The Supreme Court was still the highest

appellate court only in civil cases, the court of final criminal appellate jurisdiction being the Court of Criminal

66

Appeals* It has three judges v/ho receive the same salaries and must have the same qualifications as do judges of the Supreme Court* The Legislature was given power to establish courts of civil appeals to the extent necessary*

Each court

must have three judges who must have the same qualifications and serve for the same terms as do the Supreme Court judges* They were to receive #3, 500 until their salaries were changed by law* District judges could by law be paid more than the ,500 which had been the maximum under the original article* A number of changes were made in the details of jurisdiction and procedure of the district courts and the county courts* Also, vacancies in judgeships down through the district courts were to be filled by the Governor until the next gen­ eral election, and vacancies in county courts and justice of the peace courts were to be filled by the county commissioners1 courts*140 ^

This proposal which nevertheless was adopted, re­ ceived the opposition of The Dallas Morning Hews* The fol­ lowing quotation shows why it was opposed: [The amendment] would make different law in dif­ ferent parts of the state as far as final decisions constitute law. It would change our constitution from one in which the supreme court heads a co­ ordinate department of government guarding consti­ tutional rights to one in which several final courts would probably sustain various legislative acts of an unconstitutional character* 141 The next amendment affecting the judiciary was not added to the judicial article, but to the article on taxa­ tion and revenue*

In amending the section which permitted

67

the State* and the cities and counties, to levy a property tax for specific purposes, an. amendment was adopted In the general election of 1906 which permitted cities and coun­ ties to levy a tax not to exceed fifteen cents on the one hundred dollars valuation to raise revenue with which to compensate jurors#^^ An amendment involving only district courts was defeated in a special election, July 19, 1913# It would have authorized more than one judge in a district, raised qualifications for district judges from four to six years of law practice or serve as a Texas judge, changed salary provision from "two thousand five hundred dollars until changed by law** to "three thousand dollars until otherwise changed by law*1. Instead of fixing the number of annual terms of court in the Constitution, as had previously been done, the Legislature would have been authorized to prescribe the terms of court#

l/q

Governor Colquitt had supported the proposal. He said it would make for a more efficient judiciary by permit­ ting the Legislature to provide for the expediting of the trial of cases and for more prompt disposition of all litiga144 tion# Another proposed amendment involving only the Su­ preme Court was defeated in a special election July 24, 1915# It would have enlarged the court froni three to five members, and raised the salary to $5,000 per year until otherwise

68

provided by law#^*

Governor James £• Ferguson had opposed

the measure on the ground that he thought three judges on the Supreme Court "could act more oeleritously" than five ludg«*.u 6 Xn the general election of 191$ an amendment which affected judicial procedure was made to the Bill of Rights* Among other things one section of that part of the Constitu­ tion had originally provided that in all criminal prosecu­ tions the accused should be confronted with the witnesses against him*

147 Due to the fact that the State had been un­

able to secure the attendance of important witnesses in the prosecution of anti-trust suits because they lived out of the State and did not want to leave their businesses, an amendment was proposed and adopted for the purpose of per­ mitting out-of-state evidence in anti-trust cases to be ad1A.# mitted by deposition# The constitutional provision was made to read: Sec* 10* In all criminal prosecutions the ac­ cused * * * shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses In his favor, except that when the witness resides out of the State and if the offense charged is a violation of any of the anti­ trust lav/s of this State, the defendant and the State shall have the right to produce and have the evidence submitted by deposition, under such rules1/Q and laws as the Legislature may hereafter provide#**^ In a special election, August 1, 1927* another lengthy proposal was defeated#

In the resolution which the

Legislature approved, the Supreme Court was enlarged to nine judges and the constitutional salary figures were eliminated*

69 This left the question of salaries entirely in the hands of the Legislature* Some changes were also made in the juris­ diction of the Supreme Court*

The Legislature was authorized

to increase to five the number of judges on the Court of Criminal Appeals, and changes were made in tho time and place of the sitting of this court.

The number of courts of civil

appeals was limited to twelve and the total number of judges for these courts to thirty-six.

The constitutional salary

figures for district judges were also eliminated and the 150 Legislature authorized to determine their salaries* The measure received support from the press of the Stats as well as from many others.

Some of the statements

which reveal why the change was desired are quoted: The amendment makes the Supreme Court a body large enough for the prompt and authoritative dispatch of business* « • . It abolishes the cumbersome and makeshift arrangement of the Commission of Ap­ peals, which has been a sort of emergency lean-to, judicially speaking. It authorizes the Legisla­ ture to increase the Court of Criminal Appeals from three to five Judges when press of work re­ quires it* *-* * It demands of any District Judge that he have, as an evidence of his learning in the law, a license to practice law. The very fact that a man may be a District Judge without ever having been a lawyer is reason enough for the pro­ vision. 151 Seemingly there is almost unanimous opinion that the Supreme Court should be enlarged from three to nine members, and the Court of Criminal Appeals from three to five members. This amend­ ment, if adopted, will so enlarge those courts, and this without adding one cent to the expenses of the State. Surely this is a merit. . • the amendment will accomplish a number of useful things in the way of judicial reform and pave the way for further substantial reform. 152

70

In spit© of the support riven the proposal, it re­ ceived only 27,460 favorable votes to 164,119 negative votes* Two amendments affecting only the Supreme Court were proposed in 1929*

One proposing to enlarge it to nine

judges, to make changes in its jurisdiction, and to change the time of sitting from specific dates to all timeswas de­ feated In a special election held July 16, 1929*1^ but the other, also proposing to permit the Supreme Court to sit at any time during the year, was adopted in the general elec­ tion of 1930*

The section which was changed had provided

that the Court should sit from the first Monday of October in each year until the 3ast Saturday in Jim© of the next year*154 A reason for proposing the amendment adopted was given by an editorial writer who supported it: Texas wants a Supreme Court that is not nailed up three months in the year by a com­ pulsory vacation now in the Constitution* The Hews is confident of that* That is what the proposed amendment on this question does* It sets up a term of court that opens when the year closes* The ear of justice is never deaf under this amendment* The bench is never va­ cant. 155 Two amendments were adopted in a special election August 24, 1935*

One provided that courts having original

jurisdiction of criminal actions shall have the power, after conviction, to suspend the impositions or execution of sen­ tence and to place the defendant upon probation and to reimpose sentence under conditions prescribed by the

71

Legislature• This meant that district judges could impose conditions in connection with suspended sentences, thus establishing a form of probation for offenders in this v/ay 156 relieved of Imprisonment* The following statement gives an idea of why the amendment was desired: [The amendment] has been needed ever since the suspended sentence was instituted in Texas. It would allow the Judge to keep supervision of an' offender who gets off with a suspended sentence, whereas now nobody has any power to check up on whether or not a person receiving such mercy ful­ fills any part of his bargain with society. 157 The other amendment adopted in 1935 involved a change

in that section of the Bill of Rights which had pro­

vided that r,The right of trial by Jury shall remain invio­ late . . . iw The constitutional change of 1935 made it possible for the Legislature to Mprovide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of 158 the bounty Court without the necessity of a trial by jury.” While this amendment did not annul the privilege of trial by Jury, it did permit incarceration of persons on insanity charges for as long as ninety days without Jury trial.

It was felt that the possibility of substituting the

work of a physician for the Jury and of permitting the coun­ ty Judge to act on the advice of the physician should be 159 considered •

72

The most recent amendment involving the judiciary, adopted in the general election of 194.0, permitted the Legis­ lature to authorize by law the direct appeal to the Supreme Court from an order of any trial court granting or denying injunctions on the grounds of the constitutionality or unconstitutionalitv of any state law, or on the validity or invalidity of any state law, or on the validity or invalidi­ ty of any administrative order issued by any state agency under a state law*

Previously a circuitous course was fol­

lowed by a series of appeals from lower to higher courts 1&0 until the Supreme Court was finally reached. Again, the reason for proposing the measure is found in an editorial: The purpose of the amendment is to shorten the judicial process and to provide speedy de­ cisions with regard to laws or administrative rulings isfoich are of public concern* At present, a single litigant m y enjoin enforcement of a law or ruling and thereby nullify it for an indefinite period while the case is carried to a court of ap­ peals and later to the Supreme Court* If the law or ruling is unconstitutional, it should be so held without unreasonable delay, and if valid, it should be put into force with reasonable prompt­ ness* The present arduous process in the courts affords opportunity for temporary evasion of a valid law and also surrounds the law itself with uncertainty* Both results are contrary to the public interest. 161 From this maze of constitutional provisions there Is left in the Constitution today a judicial article which is over a dozen pages long, and which, with its many details, places the courts of Texas in a strait-jacket, as far as structure, jurisdiction, and procedure are concerned.

One

73

disadvantage of such a system stands out very clearly in con­ nection with the structure of the Supreme Court and the Court of Criminal Apoeals.

Because the size of these courts was

fixed in the Constitution and the voters refused to permit changes* the Legislator© found it necessary years ago to 162 create commissions to assist these courts with their work* Due to the fact that the court structure fixed in the Consti­ tution does not provide for an adequate judicial system, It has become necessary to use a subterfuge in order to create the type of organization that can administer justice in an acceptable manner.

It is also interesting to notice that

in a number of cases the Legislature attempted to do by constitutional amendment things that it had the power to do by law* For example, even when the salary of court judges was given with the provision Huntil otherwise provided by law,” the Legislature still submitted, amendments for rais­ ing the salaries instead of taking the responsibility on itself and doing so by law. That part of the Model State Constitution which deals with the judiciary is only from one-fourth to one-third as long as the judicial article of the Texas Constitution.

Individuals who have carefully

studied the court system of Texas and other states and coun­ tries assert that the elimination of many of the details from the Texas Constitution could do ranch toward th© iraprove■j^ ment of the administration of justice In Texas.

74

Suffrage. Elections and Office Bolding In order to bring about changes in the qualifica­ tions and disqualifications for voting in Texas, constitution­ al amendments have been necessary several times.

Originally,

the suffrage article had specifically prohibited the passing of any law requiring a registration of voters, but there was a demand for registration in the larger cities, and in a special ©lection the first Thursday in August, 1887, the voters were given an opportunity to decide whether or not registration should be permitted in all cities of at least ten thousand or more inhabitants, and In such counties as ift the Legislature deemed advisable* The objectives of this proposal are contained in this quotation: [The proposed amendment] gives the Legislature power to provide whatever regulations it may deem necessary for the detection end punish­ ment of fraud in elections, and for the preser­ vation of the purity of the ballot box. Also for registration of voters in cities contain­ ing a population of ten thousand or more. The wisdom of this provision is readily seen without further elaboration. The purity of the ballotbox is the very mud-sill of our institutions, and w© should guard it zealously. The registra­ tion of voters in cities is rendered necessary in order that the colonization of wayfarers and non-resident voters in cities on election day may be made impossible* It will suppress in a large degree the system of ward bossism and give a free and fair expression to the popular voice of real voters. 165 This proposition was rejected, but in a special election the second Tuesday in August, 1891, an amendment was adopted which authorized the Legislature to provide for

75

registration only in cities containing a population of ten 166 thousand inhabitants or more* The next amendment, adopted in the general election of 1896, required all persons of foreign birth who were not citizens and who desired to vote to have declared their in­ tentions to become citizens at least six months before the election in which they offered to vote* 167 The original constitution had provided that such persons must have de­ clared their intentions at any time before the election* The next amendment was on a subject that has been a controversial one in Texas since the days of Reconstruc­ tion*

It was adopted in the general ©lection of 1902 and

required all persons subject to a poll tax to have paid such tax before offering to vote at any election in the State. The framers of the Constitution had after much debating de­ cided to make all men between the ages of twenty-one and sixty subject to a poll tax of on© dollar to help support public schools, but the tax was not mad© a prerequisite for 168 voting. Although there was some sentiment for a tax re­ quirement for voting, it seems that the poll tax for voting purposes was defeated by the desire on the part of the majority in the Convention to reject everything that was very similar to the registration system which had been used under the Constitution of I869. Also some members feared that there would be conflicts with the National Government if the poll tax were required for voting*

They had not

76

forgotten the harsh measures of Congress which were carried 169 out during the period of Reconstruction• There was for some time a fear that certain sec­ tions of the state would be politically controlled by negroes. Also* without a penalty, such as loss of the voting privilege for non-payment of the poll tax, many peo­ ple did not pay the poll tax, and this brought forth the argument that everyone should pay some direct taxes to the State.

In favor of the adoption of the amendment it was

also said that the poll tax would enlarge educational funds and at the same time eliminate the venal and corrupt from the electorate* The Dallas Morning Hews said, nthere is little doubt that it will result in an increase of the school fund and a noticeable decrease in the power of un-

170

scrupulous brokers in politics and in the fraudulent vote.” A combination of efforts was finally successful. The tax has to be paid before the first day of February of the year in which the voter expects to vote* The amount of the tax, above the one dollar required by the Constitution, 171 Is determined by the Legislature* A proposal was defeated in a special election, luly 24, 1915a which would have permitted a qualified voter absent from his county to vote in the county of his presence on election day on any proposition submitted to the voters of the entire State, for state officers, and for district officers, so long as the voter was voting in his own dis~ 172 trlct*

77

Four years laterg in a special election May 24, 1919, the voters also turned down the first attempt to give women the same suffrage privileges enjoyed by men.

The

same amendment would also have limited suffrage to citizens 173 of the United States. The submission of this proposal marked the cul­ mination of years of effort on the part of the advocates of woman suffrage.

The following front-page editorial appeared

in The Balias Morning Hews on election day: The Toice of the People Whether the women of Texas are to become citizens or are to remain subjects is to be de­ cided by the voice of the people today. A citizen is one who participates in his own government; a subject is one whose government is prescribed for him without regard to his preferences. We welcome to the ballot box foreign-born men who can qualify for suffrage, and their character whether good or bad, is not a subject to be examined into by the election judges* But our native-born women, whose character is established and whose in­ telligence is indisputable, are denied access to the ballot box. This is a discrimination against our own women and ought to be humiliat­ ing to us who have it in our power to right the wrong. But this is not wholly a sentimental question* That taxation without representation is tyranny was decided by our revolutionary forefathers* What shall it profit a nation to gain the whole world and disparage its own women? 174 Even though the voters defeated the proposed amendment to the state Constitution, the Legislature in a special session ratified, in June, 1919, the Nineteenth Amendment to the United States Constitution.

This rati­

fication which made Texas a party to the action which

76

brought about woman suffrage on a national scale, was se­ cured only about a month after the voters had disapproved 175 the woman suffrage amendment to the Texas Constitution. With the adoption of the Nineteenth Amendment, the woman-suffrage problem was settled, but in order to make the state Constitution conform to the new provision in the United States Constitution a proposed amendment was adopted in a special election on July 23, 1921.

In addition

to authorizing woman suffrage and permitting husbands and wives to pay the poll tax of each other, It authorized the Legislature to provide for absentee voting, and ellroinated the provisions which had permitted other than full-fledged citizens to vote.

176

It seems that the chief arguments for

the adoption of this amendment centered around the citizen­ ship requirement for voting.

It was said that persons who

were not citizens of the United States should not desire to take part in our elections until they thought enough of their 177 adopted country to become citizens. Originally the Constitution had prohibited any person from holding, and receiving a salary from more than one civil office, except that of justice of the peace, county commissioner, notary public, and postmaster, unless specifically so provided in the Constitution. An amendment adopted in the general election of 1926 added to the above list the following: officers of the National Guard, the National Guard Reserve, the Officers Reserve Corps of the

79

United States, enlisted men of the National Guard, and the 178 organized reserves of the United States* Because of the original provision numerous able individuals were barred from holding state offices in Texas, and it was said that there was no good reason why men who were giving a small part of their time to an Important and worthy public service should be so barred from holding other offices in the State*

Moreover, it was said, there was

certainly no reason why the people should deny themselves the services of these men* 179 In the general election of 1932 the number of per­ sons who had permission to hold state offices was enlarged when an amendment was adopted which added to the list of military personnel who could hold state offices the follow­ ing: retired officers, retired warrant officers, and re­ tired enlisted men of the United States Army, Navy, and Marine Corps *1S