Chapter I

• Published date: 01 May 1918
• Date: 01 May 1918
• DOI: http://doi.org/10.1177/0002716218077001S02

1

CHAPTER

I

THE

LEGISLATURE’S

INHERENT

POWERS

IN

MATTERS

OF

PROCEDURE

The

methods

and

forms

by

which

legislative

business

is

carried

on

are

notoriously

lax.

Rules

designed

to

protect

the

rights

of

the

minority,

to

secure

due

deliberation

and

publicity

for

all

legislative

acts,

and

to

introduce

order

into

the

performance

of

legislative

duties

are

known

to

be

frequently

disregarded.

Judgments

of

presiding

officers

in

direct

contravention

of

the

rules

have

been

sustained

by

majority

vote,

and

legislative

houses,

in

flagrant

violation

of

their

own

law,

have

overruled

correct

decisions.

To

such

loose

and

chaotic

practice

was

due,

in

no

small

degree,

the

growing

popular

distrust

which

so

boldly

marked

the

nineteenth

century

attitude

towards

our

state

legislatures.

Successive

constitutions

reflect

the

decline

of

confidence

in

representative

assemblies

by

defining

and

restricting

in

great

detail

the

powers

which

the

legislature

may

exer-

cise.

Relief

from

the

prevailing

extravagance

and

recklessness

was

sought

by

designating

the

forms

and

procedure

by

which

the

legis-

lature

must

act.

Thus

the

newer

constitutions,

in

an

effort

to

in-

sure

order

and

deliberation

in

the

work

of

the

legislatures,

or

at

least

to

prevent

repetitions

of

certain

gross

frauds,

came

to

include

specific

provisions

governing

parliamentary

practice.

Today

pro-

visions

that

a

bill

must

be

read

three

times

on

separate

days

are

common,

and

numerous

regulations

concerning

introduction

of

bills,

signing

by

presiding

officers,

functions

of

committees,

et

cetera,

occur

in

many

organic

laws.

Occasionally

the

legislature

itself,

in

the

spirit

of

repentance,

elevated

a

rule

of

procedure

to

the

plane

of

statute

law.

Thus

the

requirement

that

local

or

private

bills

must

be

published

in

the

dis-

trict

which

they

affect

found

a

place

on

the

statute

books.

In

like

manner,

improved

methods

of

handling

contested

election

cases

were

attempted

by

acts

delegating

disposition

of

them

to

the

courts.

The

purpose

of

course

was

to

establish

by

legislative

action

a

few

fundamental

parliamentary

rules

to

control

the

whims

of

the

legis-

lature

without

the

observance

of

which

no

action

could

be

deemed

legal.

2

INHERENT

POWERS

DEFINED

But

when

the

aid

of

the

courts

was

summoned

to

apply

these

provisions,

whether

embodied

in

the

constitution

or

occurring

merely

in

the

statute

law,

the

doctrine

of

inherent

powers

a,nd

priv-

ileges

of

legislative

bodies

was

seen

to

be

involved.

Historically

this

is

a

very

ancient

doctrine.

It

takes

its

source

in

the

long

strug-

gle

in

England

between

King

and

Parliament,

when

the

matter

of

gaining

and

securing

recognition

of

a

privilege

was

a

tremendously

important

thing.

A

privilege

once

established,

the

Commons

were

at

that

point

secure

from

royal

interference;

either

directly

by

agents

of

the

king

or

through

the

processes

of

the

courts.

But

it is

one

of

the

curious

developments

of

history

that

a

principle,

em-

ployed

to

protect

the

representatives

of

the

people

against

coercion

and

intimidation

by

an

autocratic

power,

should

today

remove

them

from

all

legal

liability

so

far

as

the

forms

by

which

they

conduct

themselves

are

concerned.

Legal

theory

recognizes

that

each

department

of

government

possesses

certain

inherent

powers

of

which

it

cannot

be

deprived

by

a

co6rdinate

branch.

This

is

the

doctrine

of

inherent

powers.

Speaking

generally,

these

powers

are

such

that

if

the

free

exercise

of

them

were

obstructed

the

effective

discharge

of

the

duties

of

the

constituent

branch

would

be

seriously

impaired.

It

is

generally

accepted

that

no

explicit

constitutional

provision

is

necessary

to

the

exercise

of

these

powers

and

privileges

upon

the

part

of

the

legisla-

ture,

but

that

they

are

implied

in

the

general

grant

of

legislative

power

and

are

necessary

if

that

body

is

to

fulfill

its

function.

The

broadest

expression

given

to

such

rights

describes

them

as

inherent

in

the

law-making

branch

and

capable

of

being

ascertained

primarily

by’an

examination

of

common

parliamentary

law.

They

are

not

de-

rived

from

express

provisions

in

the

constitutions.

On

the

contrary,

they

arise

from

the

very

nature

of

a

legislative

body.

Indeed

the

constitution

is

not a

grant

but

a

restriction

upon

this

power.’

In

1

Ex

parte

McCarthy,

29

Cal.

395.

This

follows

closely

the

English

theory

of

lex

et

consuetudo

Parliamenti

as

outside

the

common

law.

See

Blackstone’s

"Commentaries,"

Bk.

I,

c. 2;

"But

the

maxims

on

which

they

(the

two

houses

of

Parliament)

proceed,

together

with

the

method

of

proceeding,

rest

entirely

in

the

breast

of

parliament

itself

and

are

not

defined

or

stated

by

any

particular

stated

law."

Coke

also,

4

Inst.

15,

"Judges

ought

not

to

give

any

opinion

of a

matter

of

privilege,

because

it

is

not

to

be

decided

by

the

common

laws

but

secun-