Rites of Passage: The Evolution of the Legislative Process in Ohio, 1799-1937

• Author: David M. Gold
• Pages: 631-655

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I Introduction

An "education packet" available at the web site of the Ohio House of Representatives summarizes the seven steps in the legislative process: introduction of a bill in the first house of the legislature, referral to committee, committee hearings, placement on the calendar, floor action, proceedings in the second house, and action by the governor.¹ The web sites of many other state legislative bodies offer similar synopses. The procedure described is so familiar that most people undoubtedly take it for granted. There is little historical literature, particularly at the state level, to suggest that it has ever been otherwise. In truth, however, the modern legislative process has evolved over a long period of time-in Ohio, nearly a century and a half. During that period, major changes took place in the preparation, introduction, reading, and referral of bills; the nature and functions of committees also underwent notable transformations. This article examines the development of the enactment process in Ohio from territorial days to the twentieth century, with emphasis on the introduction and reading of bills and the elaboration of the committee system.

II The Territorial Background

The legislative process in the territorial General Assembly grew out of the American colonial and early state experience.² Most colonial legislatures were fairly small; on the eve of independence, the typical lower house had perhaps three dozen members. Outside of New England, colonial legislatures had one or two standing committees, such as a committee on privileges and elections, although all had a few select committees that were appointed at every session. By the 1770s, these regularly recurring select committees generally included one to reply to the governor's annual address, another to audit public accounts, and a third to report on the renewal of temporary laws. Select committees rather than individual members usually wrote and introduced bills. A universal rule required that every bill have three readings. Most of the deliberation on aPage 632 bill occurred in the committee of the whole house, which meant that all the members of the legislative chamber sat together as a committee under rules that permitted greater latitude for debate than when they sat as a house.

After independence, both the size of the legislatures and the amount of business they conducted increased dramatically. As the workload grew, so did the number of standing committees. Unlike earlier standing committees, which typically dealt with administrative or financial matters, the new committees often dealt with specific areas of the law: commerce, agriculture, courts, and so on. Over time, standing committees initiated more and more legislation. At the same time, several state legislatures established select committees each year to prepare an outline of work for the legislature, including a list of proposed bills.

The elected House of Representatives of the Northwest Territory, which together with the congressionally appointed governor and Legislative Council constituted the General Assembly, adopted rules that reflected the American legislative experience. The rules of the First General Assembly of the territory provided that "[e]very bill shall be introduced by motion for leave, or by an order of the House, on the report of a committee."³ Every bill had to be read three times in the order introduced and not more than once on the same day unless the House directed otherwise.⁴ (The rules would soon require readings on three different days.⁵) The first reading was "for information."⁶ If any member opposed the bill, the House could reject it on the spot.⁷ If no one opposed the bill, or if the House did not reject it, the bill went to a second reading.⁸ The speaker would announce the bill as ready for commitment or engrossment (preparation of the bill in official form).⁹ If the House voted to commit, it would have to decide whether to send it to a select committee or to the committee of the whole.¹⁰ Most bills went to the committee of the whole, which met every day.¹¹ If the House voted for engrossment, the bill would be "executed in fair round hand" and scheduled for a third reading.¹² A bill sent to a committee would be engrossed after receiving a favorable committee report, but it could be recommitted at any time before passage.¹³

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The rules of the territorial House of Representatives included guidelines for procedure in the committee of the whole but otherwise had little to say about committees.¹⁴ The speaker had the power to appoint all committees, unless the House directed otherwise.¹⁵ Committees could not meet while the House was sitting.¹⁶ The rules provided for only one standing committee, the committee of election, which was charged with examining the credentials of members.¹⁷ However, the House created several additional committees designated as standing committees, including a ways and means committee and a committee of claims.¹⁸ Other committees established early in the session included a committee to draft House rules and another on propositions and grievances.¹⁹ The House wasted no time appointing select committees to prepare legislation on the militia, elections, highways, and other matters.²⁰

The House of Representatives and the Legislative Council acted jointly in a number of areas. They adopted joint rules that provided for conference committees to work out differences between the two chambers when they could not agree on a single version of a bill and a standing enrollment committee to ensure that bills passed were correctly written in their final form.²¹ The House and Council also appointed a number of other joint committees: one to recommend someone as the territory's nonvoting delegate to Congress; another to contract with a public printer; and a third to consider the employment of a single sergeant-at-arms for the two chambers.²²

The rules left some aspects of legislative procedure unclear. For example, they did not state precisely how a bill could be introduced. Nor did they indicate whether bills had to be read in their entirety. The requirement that bills be read on three different days served to guard against hasty action, but that purpose could be accomplished without reading the bills in full. Commentators have stated that the three-readings rule originated at a time when some legislators were illiterate and printing was not widely practiced;²³ three full readings would guarantee to thePage 634 members the opportunity to become acquainted with the contents of a bill. According to one lawmaker with a scholarly interest in legislative procedure, "[u]ndoubtedly bills were read at length in the American assemblies of the colonial period and for some time after. The documents were almost invariably short, and seldom if ever printed at the time of discussion."²⁴

There is not much evidence of actual practice in early Ohio regarding the reading of bills. The original justifications for three full readings quickly disappeared; it is doubtful that many, if any, members of the General Assembly were illiterate even in 1799, and the General Assembly's rules soon called for the printing of bills early in the legislative process.²⁵ On the other hand, American lawbooks of the time recite the three-readings rule without suggesting that legislatures did not comply with the requirement that bills be read three times from top to bottom.²⁶ Nor do the early Ohio House and Senate journals record many motions to suspend the three-readings rule by a three-fourths vote, as the Constitution of 1802 allowed.²⁷ In the early days of statehood, the General Assembly generated relatively few bills, and most of them were short, so three full readings would not have been too burdensome. On the other hand, onePage 635 wonders whether the House and Senate clerks actually read the fifty-page militia law of 1804 three times in its entirety.²⁸

The number of bills introduced, including bills of incorporation and other local and private bills, increased dramatically over the next two or three decades so that three full readings of each one would have been onerous. Eventually, as the journals show, reading bills by title only became routine. It may be that the first and third readings were always perfunctory, chiefly by title, as they were even when the Ohio Constitution expressly required three "full and distinct" readings.²⁹ In any event, members of the General Assembly in territorial and early statehood days probably heard bills read in their entirety after the second reading. Most if not all bills went to the committee of the whole at that point. There, according to the rules, the clerk read the entire bill through and then read it again, clause by clause, for the purpose of debate.³⁰

III The Nineteenth-Century Legislative Process as seen in the Enactment of Usury Laws

When Ohio attained statehood in 1803, its General Assembly closely followed the rules adopted in the territorial House of Representatives for enacting legislation. Over time, the rules and the practice changed. The course of legislative evolution can be traced through the usury laws considered by the General Assembly during the nineteenth century, with an occasional look at other legislation to fill in some gaps. Usury laws provide a convenient lens through which to observe this development for a couple of reasons. First, the issues were straightforward: what ceiling, if any, should the legislature place on the rate of interest a lender could charge a...