READJUSTMENTS
So much by way of accepting counties as they are. “State guidance” goes
a long way as a palliative of unsatisfactory conditions. It is a sort
of permanent first aid to the injured.
But the county needs surgical treatment! In some cases it is well to
_fix_ responsibility. In extremities it becomes necessary to
_amputate_.
Bear in mind, to begin with, the fact that the county at bottom is
really a piece of the state, a local agency. The prevailing practice
of local election of officers and its logical sequence, local
nullification, have done much to obscure the real interests of the
state at the county court house, till the average run of citizens have
long forgotten that the distinction exists; that officers like the
sheriff, district attorney, public administrator and coroner are not
strictly local officers at all but subordinates of the general state
government.
By far the most important branch of general administration with
which county officers serve is the judiciary. Counties, except in a
few states, are the units for selection of judges having original
jurisdiction in both civil and criminal cases which involve moderate
amounts of money and less than the most serious offenses. With the
county court also is generally associated probate jurisdiction, which
is exercised in some of the eastern states by a special officer known
as the surrogate, who may be a judge as in New York, or a purely
ministerial officer, as in New Jersey.
Legally the judiciary is more nearly a part of a state system than any
other branch of the county organization. The decisions of the judges
are of course subject to appeal to a higher state court--that is an
important form of control. Sometimes, as in California, a part of the
salary of the county judge is paid from state funds. Probably too the
greater popular respect that hedges about the bench is sufficient to
set it apart from much of the sinister influence that often affects
the other officers of the county. Nevertheless, the county court in
common with other divisions of the judiciary, is subject to a wide
variety of disintegrating forces. It has a variegated allegiance: to
the people (in most of the states) for its original selection, to the
county governing body for many incidental items of financial support,
and to higher judicial authority for confirmation or revision of its
decisions. It does not control its executive agents, such as the
sheriff and the county clerk, who are usually independent elective
officers.
The readjustment of this situation can hardly be effected
satisfactorily apart from a complete reorganization of the state’s
judicial system. This will undoubtedly involve, among other things, a
much more complete central control on the part of a state chief justice
and a judicial council. The courts must be organized with a keener
appreciation that a judge in rendering just and learned decisions is a
part of a business machine--he is waiting on customers; that there is
no sound reason why the judicial department should defy the principle
of responsibility any more than a department which serves the public in
another way.
In the general overhauling of the systems, perhaps the elective county
judge will disappear. But liberty, for all that, will not vanish from
the earth. States as diverse in their location and composition as New
Hampshire, Connecticut, New Jersey and South Carolina never drifted
quite completely into the habit of “electing everybody,” and they are
good states. The Federal judiciary, too, is appointive, and it is
not more culpable, by standards of either the progressiveness or of
administrative efficiency, than most of the state courts.
The earthquake, we may hope, will also shake up the justices of the
peace, who in any self-respecting organization of the courts will
either disappear or be linked up, as the American Judicature Society
proposes, in a county system, with the county judge in control. The
justices are now associated with the town or a corresponding division
of the county and deal with very minor (but not for that reason
insignificant) civil and criminal cases, or act as a tribunal for
preliminary hearings and commitments. In cities the office has steadily
and hopelessly decayed by transfer of its jurisdiction to other courts
and through the abuses of the fee system. It was established moreover
when means of transportation were few and difficult and districts
consequently had to be made small in order to meet the convenience
of the litigants who came seeking justice. But times have changed!
Circumstances favor larger districts and infinitely better control over
this branch of the judiciary.
In making over the courts we cannot properly overlook the machinery
for enforcing judicial decisions. This is the function of the sheriff.
Where, in the reconstructed scheme of things shall he come in? Our
forefathers committed themselves to the theory of the separation of
powers, these three: the legislative, the executive and the judicial.
Under this scheme of things the duty of judges is to find or interpret
the law: nothing more. The sheriff as an executive officer is therefore
always independent of the court: he is the enforcer of state laws which
come to him in the form of very specific instructions by way of court
decisions. Such instructions are issued in the interest of parties to a
legal controversy.
But the sheriff is not the only law enforcer in the county. The state
has made the board of supervisors (or board of commissioners) and
county officers its agents in enforcing various state laws. And so
the question arises: why not bring all the enforcing agencies under a
single control? Two ways suggest themselves. If the judicial system is
to be a unified state affair, then judicial-decision enforcing should
also be a state concern and the county should keep its hands off. In
practice this would mean that the governor or some other general state
officer should appoint the sheriffs on the same principle which is
employed in the federal government, wherein the President appoints U.
S. marshals. But, if on the other hand, the county government is to be
considered as a general local agency of the state for enforcing all its
laws, then nothing remains but to put it up to the local governing body
or some local chief executive to select the sheriff. Such is the method
which has been applied in the city and county of Denver, Colorado,
where the mayor is the chief executive of the consolidated governments.
And what of the coroner? Every authority worthy of credence is agreed
that this office, above all others in the county, has long outlived its
usefulness. That one small head should contain the necessary skill of
criminal investigator, medical expert and magistrate is far too much to
expect of any ordinary mortal. A few states, following Massachusetts,
which abolished the coronership in 1877, have created an office under
various titles, such as “medical examiner,” “county physician” (New
Jersey), “medical referee” (New Hampshire), etc. They have modernized
the coronership by stripping it of its magisterial powers and taking
it off the ballot. In most cases the new medical officer is an expert
pathologist and his services are often of the greatest value in
criminal and civil actions and to the cause of science. In New York
City the coroners now in office in the five boroughs will go out of
office on January 1, 1918, their powers of investigation will then
be transferred to a chief medical examiner appointed by the mayor,
and a corps of assistants who will be equipped with ample laboratory
facilities. The judicial duties of the coroner will be turned over to
the city magistrates.
As for the district attorney,[16] his proper relations to a criminal
trial and to the public seem to be generally misunderstood. He is the
state’s advocate as against the breaker of the law. But it is no part
of his business to send every alleged offender to the penitentiary.
The efficiency of the prosecutor is not to be determined by a high
record of convictions. He is not, properly, a man-hunter. Nor is it his
province to decide when he shall bear down hard upon offenders and when
he shall soften justice. His functions, in short, are administrative
and not political. And when that fact is admitted every reason why he
should be popularly elected falls. In the ideal county, efficiency in
the administration of justice will not be a perennial local campaign
issue, for the prosecutor will be appointed by some responsible state
authority, such as the governor or attorney general, not as a reward
for political services but on the basis of merit and fitness. Or if,
perchance, it shall be deemed unwise so to centralize authority,
it would at least be logical to let the county authorities do the
appointing.
There remains to be disposed of the clerk of court.[17] His relation
to the bench is rather a closer one than that of the sheriff, so close
that in some jurisdictions it has not been thought a violation of the
theory of the separation of powers to allow the judge or the whole
court to appoint him. Such indeed would seem the proper course. But
in many counties the business of court-clerking is hardly onerous
enough to engage a separate officer and the duties have accordingly
been transferred to the county clerk. This officer usually performs
a variety of functions, among which are his services as clerk of the
county board and as the local custodian or register of legal papers
required to be filed under certain state laws. In counties where this
“bunching” of functions has to be resorted to, the least that should
be done by way of readjustment should be to help along the unification
of the county government by vesting the appointment of the county
clerk in the county board or a county executive to be established.
In the larger counties where the volume of county business warrants a
separation of functions, there seems to be no sound reason why such
duties as the filing of papers should not be in the hands of an officer
appointed by some state official, to represent him in the locality.
In this way certain counties at least would be completely divested
of responsibilities of which they appear never to have acquitted
themselves too well. The county’s ultimate place in the sun is being
determined by a stripping process: the state is taking up its work.
Thus in the domain of charities. We pointed out in Chapter IX that
the county was hopelessly deficient in caring for the insane, the
defectives and the criminals. Modern methods, which are humane methods,
have come to demand strict classification as the very starting point
for treatment. But unless the number of subjects for treatment is
reasonably large, the expense of such classification is prohibitive.
Most counties cannot supply the numbers. They find themselves in the
predicament of a rural sheriff who has in custody an average of perhaps
six prisoners. If his county were to obey the law it would have ready
at all times an establishment which provided special accommodations for
almost forty different classes of inmates.
Under these circumstances the only course is to transfer as many
classes of prisoners as possible to the care of a larger unit of
government that is able economically to segregate. This transfer
actually began in some of the older states in the eighteenth century.
Massachusetts led the movement by erecting a special prison on
Castle Island for the most desperate type of convicts. In 1796, New
York began the construction of two state prisons in New York and
Albany. In 1816, Ohio built a state penitentiary at Columbus and in
1839, Michigan completed its first state prison at Jackson. Reform
institutions in this country began to be established in Massachusetts
in 1846 when juvenile offenders were removed from local jails and
state prisons. Since then separate institutions for boys and girls
have been established in nearly all of the eastern states. New York in
1877 erected the first reformatory to which adult convicts could be
committed under an indeterminate sentence.
As for the care of the insane, this was the first department of
public welfare administration that was taken over by the whole state,
beginning with the establishment of the first hospital in Utica, New
York, in 1843. From time to time other states have followed New York’s
example until nearly every state has one or more hospitals. With
the increase in the number of institutions in a given state further
segregation and classification of inmates has been possible. State
institutions now furnish the means for appropriate education for the
mentally defective who formerly were left to shift for themselves in
mismanaged county almshouses. The deaf, dumb and blind have been taken
care of in similar fashion. Indeed, the function of county poor relief
would now seem to approach as its ideal, the complete transfer to the
state of all charity functions except possibly a certain amount of
temporary “out-door” relief. But even this rather narrow field has been
invaded, for, in New England and New York, at least, a class of “state
poor” is known to the statutes.
That the county has often sadly broken down in the guardianship of
life and property is a fact which has come into prominence within
very recent years. As the police force of the big cities become
more and more efficient the field of operation for criminals is
transferred to the suburbs, to the small towns and villages and to
the open country and the police problem in the rural sections takes
on a semi-metropolitan aspect. Good roads, the automobile and the
telephone have facilitated the business of thugs and burglars as well
as of honest citizens. Said the district attorney of Niagara County,
New York, recently, “Nearly every post office safe in Western New
York has been robbed, and I do not now recall anybody having been
convicted for these crimes. The ordinary constable or deputy sheriff
can serve subpœnas and make a levy under an execution providing he is
feeling well, but as a general rule he is incapable of coping with even
a third-class criminal.” Numerous other equally forcible official
statements of the same tenor have been collected by the New York
Committee on State Police.
To cope with these crimes of violence and cunning the untrained,
politically selected sheriff of the typical rural county is but
sadly equipped. He is a temporary elected official to begin with,
unschooled in the ways of criminals and unfamiliar with any of the
vast paraphernalia of investigation that go to make up a modern police
system. Certain parts of the country moreover have peculiar periodical
disturbances on a larger scale than criminals operate--riots, lynching
parties, flood disasters, strikes. These occasions demand the temporary
mobilizing of a comparatively large, well-organized and disciplined
force to handle the situation with firmness and fairness. It is no
place for the crude old-fashioned sheriff’s posse.
At the present time it is the frequent practice on such occasions to
call out the state militia. But while this organization has often
doubtless rendered effective service, police duty is not its proper
occupation. Every year enlistments fall far below the adequate figure
because young men in business and professional life deem it obnoxious
to leave their appointed tasks to do a professional policeman’s work.
In the discussion of “preparedness” measures it has frequently been
proposed that the militia be enlisted solely for national defense and
that a special fighting force be developed for state police duty. If
such a force were organized on a permanent basis it would practically
relieve the sheriff and the constables from police duty.
A model for such a force is found in the Pennsylvania State
Constabulary, which has been in existence since 1902. This is an
organization of two hundred and twenty mounted policemen formed
into four companies under a superintendent of police. Every year it
patrols 660,000 miles of rural roads and not only keeps the rural
sections singularly free from criminals but has performed numerous
other distinctive services. It has prevented disastrous fires and mine
explosions, quelled riots, stopped illegal hunting and maintained
quarantine during epidemics of disease. It was this constabulary that
handled the tremendous crowds at the Gettysburg Centennial in 1913.
The force is made up of picked men who are taught the laws of the
commonwealth and schooled to enforce them with absolute impartiality
against offenders of all classes. It has been free from politics and
has won the respect of all classes of the people.
In the domain of highways[18] the county, under the pressure of the
good-roads movement, has been rapidly yielding its control to the
central government. The good-roads problem simply outgrew the county.
It could not be handled efficiently through so small a unit. In the
course of railway development everywhere the old lines of tributary
traffic by wagon road from the farms to the shipping centers were
greatly modified. Their objective point came to have no particular
reference to the boundaries of the county or the location of the county
seat. Traffic from one county destroyed the roads of another without
supplying any compensatory advantages to the latter. Modern road
construction, particularly since the advent of the automobile, created
technical engineering problems far beyond the capacity of the local
officials to solve. Without the aid of better equipped agencies than a
unit so small as the county could afford most of the rural roads of the
county must have gone to rack and ruin, to say nothing of their meeting
the demands of present day traffic. But forty-two state governments,
up to 1915, had come to the rescue, either by supplying financial aid,
authorizing the employment of convict labor or by furnishing expert
advice founded upon scientific research. Up to the year 1914 only
Florida, Indiana, Mississippi, South Carolina, Tennessee and Texas had
made no provision whatever for state participation in road work.
But the significant point to be noted here is the strong tendency
to take entirely out of the hands of the county the whole burden,
financial and otherwise, of the great trunk lines and in many cases
to impose standards and specifications for construction even where the
county does its own road building. Thus, Massachusetts, up to January
1, 1914, had completed more than one thousand miles of state highway
through the issuance of state bonds and the levying of automobile
taxes, the counties being required to refund the state twenty-five
per cent. of the cost of construction. New York established a highway
department in 1898 and has authorized bond issues of $100,000,000 for
a state system of roads which has already reached an advanced stage
of construction. Virginia, Ohio, Maryland and California have made
much progress toward a state road system, the California plan calling
for two main highways running the length of the state and a system of
laterals connecting the county seats with the trunk lines. The state of
Iowa has gone so far as to place all road work in the state under the
direction of its highway department.
And so, the dominion of the county is being invaded at sundry points.
The unification of the judiciary (which it must be admitted has not
yet progressed very far), the gradual transfer of the charity and
correctional work to the state government, the establishment of a
state police and the more imminent abridgment of county control over
highways--these movements unmistakably and definitely seem to point the
ultimate displacement of the county as an important agent of public
service in particular fields.
But that is but one side of the story. For while, on the one hand, the
importance of the county is threatened in particular fields there seems
to be before it in other directions a career of greater usefulness than
ever before. This present observation, however, applies only to those
states where the town or township has come in for particular emphasis,
or where, as will be suggested later in the discussion, the principle
of federation may be adopted by a number of contiguous municipalities
as a step toward consolidation of local governments.
In a number of states where the New England influence has been strong
the town is frequently the unit (though not always exclusively) for
the custodianship of certain records such as deeds and mortgages, for
public health administration, for commitment of paupers, for road
construction and maintenance or for tax assessment and collection.
The relation of the county to the town in these concerns is analogous
to that of the state to county in such matters as the care of the
insane and the control of trunk-line highways. It is a question of
finding a unit large enough (and not too large) to fit the problem in
hand. Public health, for example, is largely a matter of controlling
sources of disease in milk and water supply, which under modern methods
of living are usually much more widely distributed than the area which
is served. Effective control in that case would simply mean control
through a unit larger than the town, to wit: the county, unless control
on a still wider scale should prove feasible. Similarly in the matter
of police protection: the town constable is an anachronism in these
days of rapid transit. The county is a more appropriate police unit
than the town. Town custodianship of records means duplication, lack of
standards and waste. Town commitment of paupers to the county almshouse
or poor farm is a temptation on the part of the smaller locality to
shift its burdens on to the shoulders of the whole county.
When it comes to highway construction, the high technical skill which
needs to go into the work is a commodity which comes too high for a
town and even, as we have pointed out, for the county.
But the most serious misfits of town government are the local agents
of tax administration. Wherever the town is the smallest tax unit not
only is the number of officials needlessly multiplied, but diverse
standards of property valuation are set up and competition is resorted
to between towns with a view to escaping their just share of taxation.
Without a dissenting voice the recognized tax experts of the county are
firmly of the opinion that the town as a unit of tax assessment and tax
collection must give way to the county.
And so, the readjustments that are working out the ultimate destiny of
the county are not wholly of a negative sort. It is not all a matter of
trimming the county’s wings.
[16] Variously designated in different states as state’s attorney,
prosecutor of the pleas, county attorney and solicitor.
[17] In Pennsylvania known as the “prothonotary.”
[18] This discussion of highway matters is based principally upon a
monograph by J. E. Pennybacker, Chief of Road Economics, Office of
Public Roads, Department of Agriculture. Y. B. Separate, 1914.