NULLIFICATION
Every now and then we shall have to remind ourselves that the county
made the politician, rather than the other way round.
And the county in its turn, is pretty well rooted in the good graces of
human nature. When American counties had been formed and their legal
status as subordinates of the state had been established, the people
throughout the length and breadth of each of the states were pretty
much of one mind in the fundamental standards of personal conduct. A
tradition of strict morality dominated New England. Its dominion was
not seriously questioned. The South and the middle states may not have
been so strict but they were homogeneous in their own brand of morality.
Then in due time two movements took place in the northern states.
Just as the constitution follows the flag so the Puritan morality
(more or less modulated and diluted) trailed the westward drift of New
England population, first into New York, then into the Western Reserve
and finally into the Middle West and Northwest. But another force
contended for mastery with the New England influence. The growth of
the cities and particularly of the factory centers was simultaneous
with the great waves of immigration from central and southern Europe.
With the new immigration came a conflicting standard of morality. The
German and southern European immigrants particularly, brought with
them liberal ideas of Sabbath observance. They also loved their beer
and red wine. In time they upset the moral balance of the cities,
coming into sharp collision with the New England (we might also say,
American) conception of the Sabbath and with the total abstinence idea
which began to get a firm foothold in the nineteenth century. This
complex influence gave us the setting for at least one phase of that
never-ending feud that rages between New York City and “up-state.”
It pitted Chicago against rural Illinois. It made Cincinnati a more
or less alien city in Ohio. It gave us a permanent body of citizens
who resent having their conduct dictated (as they apparently view it)
from above. Preponderantly foreign in their origin, they are loud in
their proclamation of their rights as American citizens, while the
New England element, still most influential on the whole in the rural
districts, is properly horrified at the low estate of virtue in the
cities.
It was inevitable that this clash of interests should be reflected
in politics. Our curiously illogical state system lent itself most
obligingly, if albeit rather ludicrously, to a compromise; the New
England conscience should get the necessary laws and the “foreign
element,” where its political force predominated, should control their
enforcement! The state of Illinois has carried on its statute books
a law requiring the closing of saloons on Sundays, which applies
uniformly throughout the state. Never till recently was a serious
attempt made to enforce it in the city of Chicago, which was quite in
accordance with the _modus vivendi_. Then, in 1915, a new mayor
took it into his head to close the saloons up tight. On a bright Sunday
afternoon the populace, thirsty and indignant, turned out and demanded
their American rights. The mayor’s attitude came from reading the law
literally but without a due regard to the great body of voters who are
“for the law but ‘agin’ its enforcement.”
The state system regularly provides against such mistakes of official
judgment by carefully divorcing the _duty_ to enforce from the
_incentive_ to enforce. The New York laws forbid the placing of
wagers on horse races. They stand there presumably as a monument to
the enlightened conscience of a majority of the people. They were
not enacted as an expression of moral sentimentality to be ignored
at will, but as an instruction for the governor, the administrative
establishment of the state and the courts to carry out. The statute
is of course obeyed in all counties where there are no race tracks
and no facilities for placing bets! But in the other counties? The
legislature has provided no means of execution other than the locally
controlled peace officers, the sheriffs and the constables. These are
the servants of the state, to be sure, and they are sworn to protect
its laws. But in a more direct human way they are of the county, bound
to the local hotel keepers, the local retail merchants and the jitney
bus owners whose business thrives on the patronage of the race-track
crowd. Local public opinion in the race-track district flouts the will
of the people of the state and it says to the state, as President
Jackson said to the Supreme Court, “You have made your decision; now
enforce it.”
Only occasionally does moral sentiment run strong enough to force
the governor to be in fact as well as in theory the real head of the
state in the sense that he employs state instruments to enforce state
desires. Such an incident occurred a few years ago when the governor of
Indiana was compelled to order out the militia to enforce a law against
race-track gambling because he had no power to compel the elective
sheriff or other local officers to do their duty.
In practical politics this clash of moral standards produces not
only the anomalous situation referred to but often the strictly
administrative matter of law enforcement is consciously and designedly
a political issue. The popular desire to graduate or temper the
enforcement of the law is doubtless the real secret of interest which
so often centers in the election of a district attorney. Shall we have
a “liberal” administration or shall we “clap on the lid,” that is
about the form the question takes--euphony for: “Shall the prosecutor
shut his eyes and ignore the law, or shall he obey it according to
his official oath?” The liberal candidate goes before the people with
promises to go easy and the strict morality candidate to make the way
of the transgressor hard.
Which is right? For the present it matters little. It remains simply to
point out that since the organization of the state and county provides
no organ of expression for local policy, the people in their infinite
capacity to adapt themselves to a hard condition proceed to make a
policy-determining body out of a strictly administrative officer, like
the district attorney or the sheriff.
Nullification shows itself also in the administration of the tax law.
Most of the states derive a portion of their revenues from the general
property tax. But the power of taxation lies in the legislature and
no state has its own local agents directly and fully responsible to
a central authority for fixing the valuations upon which the levy
is based. The county (except where state revenues are derived from
distinct sources) is required to contribute its proportionate share to
the central treasury and is left to do the right thing by the state,
with such supervision as will be hereafter noted. The people of the
county are allowed to select their own assessors, on the theory that a
man on the ground knows valuations better than any outside impartial
person and that no one is more competent to select such a man than his
own neighbors.
And so it happens, just as in the case of the sheriffs, that the local
tax officers are confronted with conflicting obligations. They must
take their choice, on the one hand, between strict observance of the
law and unpopularity, with the probable loss of their jobs at the end
of their term, and popularity with prospects of possible political
advancement and a more or less assured living, on the other. Inasmuch
as there is never any question as to which of these courses is the
more practical and immediately profitable, the tax assessors of the
county invariably find it infinitely to their personal advantage to
serve the locality that pays their salaries. Assessors in the sister
counties do likewise; with the ultimate result that general competition
arises among the counties as to which shall value property lowest and
thus pay the smallest proportion of the state’s tax. The system is
ideally designed to reward dishonesty and perjury and punish faithful
obedience to the law. For, as a former New York State Tax Commissioner
has said, “Under assessment is the rule throughout the state, and in
nearly all the tax districts intentionally and purposely so.” The range
of these assessments is well known to be anywhere between twenty-five
and ninety per cent. of the full value of the property. And the
assessors “make their own laws as to the basis of assessing property,
in deliberate violation of the statutes and then proceed to make oath
to the assessment rule that they have assessed all property at its full
value.” That what is true of New York is equally true of most other
states where an analogous system prevails, is the testimony of tax
authorities.
These frailties of human nature the states have weakly connived at by
the provisions they have made for equalization of assessments. It is
the old story of reform via complication and, as one county attorney in
New York has testified, “equalization in this state is an abomination,
a joke, a cover for deals and trades, a means of purchase and sale,
in its results most unfair and unjust, based on the assumption of
accomplished perjury, in itself a chief cause of the perjury.” A
Missouri authority corroborates by remarking:
“The county board of equalization ... does little to improve the
situation as it is affected by the same conditions which influence
the acts of the assessor. Much the same is true of the state board
of equalization which consists of the Governor, Secretary of State,
State Auditor, State Treasurer and Attorney-General. This board has
authority to equalize assessments among the counties, but not among
different persons or property within the county. The officials who
make up this board have neither the time, information nor powers to
adequately correct the evils. _Political considerations also affect
the solution of the problems._”
But the way to a sincere and logical system is not easy. Popular
sentiment seems to favor the _status quo_. For the first time in
the history of this country, Governor Cox of Ohio in 1913 persuaded
the legislature to establish a unified plan of organization for local
assessment. Inasmuch as taxation is the prerogative of the state
government, he proposed a system of tax assessment which would have
made this idea an actual as well as a legal fact. The law would have
abolished the locally elected assessor in the counties. Full control
would have been placed in the hands of the state government, since
the Governor would appoint the local officials. There would probably,
in the nature of things, have been an end to log-rolling and to
competition between the counties to “beat” the state. The law was
passed, but it was so unpopular that Governor Cox’s opponent in the
succeeding election used it for political capital. One of the earliest
and proudest achievements of his administration was the repeal of this
law.
And so our old friend the “average citizen” finds it often acceptable
to have a county government that is not built in strict conformance
with logic. It is a complicated mechanism to be sure, but what matter,
if he can employ a chauffeur to run it? To meet just such specific
demands as this the professional politician and his illogical system
have arisen and continue to exist.