an

already been said. It has been suggested above that state constitutions now contain a good many provisions either specifically granting power to the legislature or requiring that the legislature take certain action. A command to the legislature and authorization for legislative action have the same legal effect, because of the fact that there is no way of compelling affirmative legislative action. Commands to the legislature and grants to the legislature have both in many cases found their way into the constitutions for the purpose of enlarging legislative power, although it should again be emphasized that when they are once placed in the constitution they almost certainly come by interpretation to be also limitations upon that power.

A state constitution is largely an accumulation of provisions which have been introduced at various times. Constitutional limitations once adopted tend to persist and are joined by other provisions to meet new situations. A provision is not apt to be removed unless it occasions difficulties which seem to make such removal necessary. The provisions of Sections 29, 30 and 31 of Article IV of the constitution of 1870 have already been referred to as either commands or grants of power to the legislature. Section 32 of the same article belongs in this class. There are detailed provisions in the constitution of Illinois with respect to railroads (Article XI., Sections 9 to 15) and with respect to warehouses (Article XIII). These constitutional provisions are in reality legislation, although they also contain expressions as to what the General Assembly shall do. On the whole these provisions have been outgrown, and are useless, although they have as yet made little difficulty. The case of Hannah v. People, suggests the possibility, however, that these legislative provisions in the constitution may at some time come to be hindrances to a more progressive legislative policy than was actually thought necessary in 1870. The constitutional provisions introduced in 1870 as to railroads and warehouses have long ceased to be necessary, because the matters recognized as needed in 1870 have for a number of years come to be generally recognized as constitutionally proper, irrespective of constitutional provisions, and much further developments have taken place.

The issue presents itself to the constitutional convention of 1920 as to the type of constitution it shall frame. There are two alternatives in this respect:

(1) The state may continue in the path of providing a detailed constitution which shall itself prescribe a good deal in the way of state legislative policy, or

(2) The state may return to a brief constitution containing only matters of fundamental importance, seeking at the same time to lay down principles in such a way that they will not be construed as unduly restricting legislative power.

If the first plan is adopted of having a detailed constitution, itself embodying a good deal with respect to legislative policy,

$198 Ill. 77 (1902).

attention should be called to the necessity of a simple amending process. Placing a mass of legislative detail into the constitution substantially does away with the distinction in content between the constitution and statutes, and makes necessary to a large extent the doing away at the same time with the distinction in method of enactment of the two types of provisions. If a complex and detailed constitution is to be framed, some attention should also be paid to the effort to prevent the drawing of limitations by implication from provisions which are not intended primarily as limitations. The Illinois constitution of 1870 contains such a provision with respect to revenue by prescribing that "the specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed by this constitution." A provision in the Oklahoma constitution which seeks to avoid the drawing of implied limitations from provisions not intended as limitations declares that "the authority of the legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this constitution upon any subject whatsoever shall not work a restriction, limitation or exclusion of such authority upon the same or any other subject or subjects whatsoever."

The thing sought to be emphasized in this discussion of legislative powers is that state constitutions have come to a very great extent to perform functions not accounted for by the theory still, prevalent as to the function of state constitutions or as to the powers of state legislative bodies. If details are to be placed in state constitutions which are not intended primarily as limitations upon the legislature, this fact should be taken into account and the constitution so phrased that the courts will not draw limitations. from such provisions by implication. What may be termed implied limitations came into the judicial history of this country with the development of complex constitutions, and the principle of implied limitations is well established in the judicial decisions of this and other states. If a complex and detailed constitution is desired, and it is desired at the same time to place in it provisions which are not intended as limitations, some language must be employed to rebut the present judicial presumption that such provisions are to be construed as limitations. It should be borne in mind that it is impossible to frame a detailed and complex constitution and at the same time adhere to the theory that a state constitution is a document containing matters only of fundamental and permanent importance, and that the legislature possesses all powers not clearly and intentionally denied by the text of such a constitution. With a complex constitution it is necessary to make some adjustments in the theory as to the amount of power conferred upon the legislature and also with respect to the method of constitutional change.

See Price v People. 193 Ill. 114 (1901).

If on the other hand, a simple constitution is to be adopted containing matters only of fundamental importance, or matters which are today regarded as of fundamental importance, it may be possible to return to the older legal theory that a constitution is to be construed favorably to state legislative power and that a state legislature has all powers not clearly denied. But the mere framing of a simple constitution may not accomplish this purpose if broad provisions in such a constitution continue to be construed so as to prevent legislation which the people of the state may desire..

X. ANALYSIS OF PRESENT

LEGISLATIVE ORGANI

ZATION AND WORK.

A state legislature is essentially the affirmative organ of the state government for the development of new policies, or for the establishment of new principles. The executive has little or no authority to establish new policies, and the courts have less power to do so. The legislature, as the organ of the state government for affirmative action, should of course be so organized that it may operate effectively for this purpose.

During certain periods in the development of English law, legislative action was perhaps the most decisive influence in the development of the principles of private law. However, on the whole, the English legal system has in its main lines developed as a result of judicial action, and the legislature has normally limited itself to the meeting of new problems which could not be satisfactorily handled by the courts, or to the problem of restating in statutory form the results of judicial action. Occasionally important acts, such as the negotiable instruments act, the uniform sales act, and the uniform partnership act, are enacted by the General Assembly summing up and seeking to codify the existing law, with such changes as may seem desirable. Such an effort at legislative restatement of the whole law upon a particular subject is not frequent; and within the field of private law a session of the Illinois General Assembly ordinarily deals with only a small number of problems in which some specific difficulty may have presented itself.

The work of the Illinois General Assembly may, therefore, be said not to relate primarily to the development of rules for the regulation of relations between private individuals. Sir Courtney Ilbert remarked some time ago of the English Parliament that not one-tenth of the work of a session related to matters of private rights, and that the remainder related to matters primarily administrative in character. The same statement may be made regarding the work of the Illinois General Assembly. The great mass of its work relates to matters other than those which have to do with the relations between private individuals. Of course, the appropriations for the support of the state government and legislation regarding the administrative functions of the state and of the local subdivisions of the state are equally as important to the citizen as is legislation regulating the private rights of one citizen as against another. However, legislation which is primarily administrative in character involves problems of a distinctly different sort from that with respect to matters of private right.

An analysis of the legislative work of the General Assembly of Illinois in 1917 and 1919 indicates that of the 338 laws enacted by the General Assembly at its regular session in 1917, only seventeen can be classed as regulating primarily the private rights of parties among themselves. Of the 429 laws enacted at the regular session of the Illinois General Assembly in 1919 only fourteen belong to this class. A table is given below indicating in a rough fashion the types of matters dealt with by legislation in Illinois at these two sessions:

Acts containing new substantive matter of legislation and merely containing appropriations incident thereto are not classified as appropriation acts. It is difficult to make a distinction between state and local administrative matters, and doubts have been resolved in favor of classification as local matters. The numerous acts readjusting local tax rates in 1919 are responsible for the large proportion of laws for that year classified as relating to local administrative matters.

This table probably indicates with sufficient clearness that the problems of legislation are primarily problems connected with the operation of state and local governments, and not problems having to do primarily with the rights of private individuals among themselves. In the case of state appropriations and of substantially all legislation regarding state administration, the information upon which legislation is to be based must be obtained primarily from the existing executive governmental agencies of the state, and with a better organization of the executive government the information for such legislation will be much more easily available than at the present time.

For matters relating to local administration, information again. must to a great extent come from the state executive offices which have a general supervision over the different functions of local government. For example, with respect to schools and with respect to local charitable administration, a good deal of the impulse for legislation may come from the local communities, but this centers largely upon the state executive offices having supervision over these matters. Comment is made later in this discussion upon the fact that there is no constitutionally recognized relationship between the General Assembly and the executive department with respect to the enactment of legislation, although perhaps fully nine-tenths of the work of the General Assembly at each of its sessions must be devoted to legislation or proposed legislation having to do with the administration of government.

The chief problems of legislation coming before the General Assembly are problems of a technical character, requiring information regarding the actual operation of government and regarding the operation of similar institutions elsewhere. Legislation is a technical expert task and in the states of this country it is performed by a body, the length of whose session is in most cases narrowly limited. In Illinois where there is no constitutional limit, the General Assembly meets for