Need Of.—A village being one election district has only one polling place. The community may increase so in numbers as to make it necessary to have several voting places. For the accommodation of the people, these would naturally be located in different parts of the community; and to prevent fraud, voting precincts would have to be carefully defined. The council would naturally be made up of representatives from these divisions.
When, under this arrangement, the voters assemble in different parts of the community, they could not listen to financial reports and vote taxes, as they do in the town and the village. Hence it would be necessary to endow the council with increased powers, including the power to levy taxes without the direct authorization of the people.
The expenses for public improvements, for waterworks, sewers, street-lighting, etc., may take more money than it would be prudent to assess upon the community for immediate payment. In this case it would be desirable for the community to have the power to issue bonds.
Again, with increase in population there is an increase in the number of disputes over private rights, and temptations to crime become more numerous. Hence the need of one or more courts having jurisdiction greater than that possessed by justices of the peace. The conditions necessitate also an increase in the number and the efficiency of the police. And to render the police efficient it is necessary that they be under the direction of one man, the same one who is responsible for the carrying out of the ordinances of the council, namely, the mayor.
A community organized to comply with the foregoing requirements—divided into wards, having a council made up of aldermen from those wards, having a council authorized to levy taxes at its discretion, having a municipal court, having regularly employed police acting under the direction of the mayor—is a city, as the term is generally used in the United States.
Another reason for establishing a city government is frequently potent, although unmentioned. The pride of the community can be thereby indulged, and more citizens can have their ambition to hold public office gratified.
How Organized.—A city may be organized under general law or special charter from the legislature. Large cities, and small ones withgreat expectations, usually work under a charter. But the custom is growing of organizing cities at first under general law. Then if a city outgrows the general law, grows so that it needs powers and privileges not granted therein, it may properly ask the legislature for a special charter.
As a type, the principal provisions of the general law of Minnesota are here given, as follows:
"Whenever the legal voters residing within the limits of a territory comprising not less than two thousand inhabitants, and not more than fifteen thousand, and which territory they wish to have incorporated as a city, shall sign and have presented to the judge of probate of the county in which such territory is situated, a petition setting forth the metes and bounds of said city, and of the several wards thereof, and praying that said city shall be incorporated under such name as may therein be designated, the judge of probate shall issue an order declaring such territory duly incorporated as a city, and shall designate the metes, bounds, wards, and name thereof, as in said petition described." And the judge of probate designates the time and places of holding the first election, giving due notice thereof. He also appoints three persons in each ward, of which there shall be not less than two nor more than five, to act as judges of election. The corporation is established upon the presentation of the petition, and the organization is completed by the election of officers.
The usual elective officers of a city are a mayor, a treasurer, a recorder, one justice of the peace for each ward, styled "city justice," all of whom shall be qualified voters of the city, and one or more aldermen for each ward, who shall be "qualified voters therein." All other city officers are appointed.
The term of mayor, city justices and aldermen is in most states two years; that of the other officers, one year.
Any officer of the city may be removed from office by vote of two-thirds of the whole number of aldermen. But an elective officer must be given "an opportunity to be heard in his own defense."
A vacancy in the office of mayor or alderman is filled by a new election. A vacancy in any other office is filled by appointment. The person elected or appointed serves for the unexpired term.
The Mayor is the chief executive officer and head of the police of the city. By and with the consent of the council, he appoints a chief of police and other police officers and watchmen. In case of disturbance he may appoint as many special constables as he may think necessary, and he may discharge them whenever he thinks their services no longer needed.
The City Council consists of the aldermen. [Footnote: In some states the city council consists of two bodies.] It is the judge of the election of its own members. A majority of the members elected constitutes a quorum for the transaction of business.
The council chooses its own president and vice-president. In case the mayor is absent from the city or for any reason is temporarily unable to act, the president of the council acts as mayor, with the title Acting Mayor.
Passing Ordinances.—The mode of passing an ordinance is unlike anything that we have considered up to this time, and deserves special attention on account of its resemblance to the mode of making laws in the state and general governments. It is as follows. If a proposed ordinance is voted for by a majority of the members of the council present at any meeting, it is presented to the mayor. If he approves it, he signs it, and it becomes an ordinance. But if he does not approve it, he returns it, through the recorder, to the council, together with his objections. [Footnote: This is calledvetoingit, from a Latin wordveto, meaningI forbid.]The council, then reconsiders the proposed ordinance in the light of the mayor's objections. If, after such reconsideration, two-thirds of the members elected vote for it, it becomes an ordinance, just as if approved by the mayor. "If an ordinance or resolution shall not be returned by the mayor within five days, Sundays excepted, after it shall have been presented to him," it shall have the same effect as if approved by him.
Publication of Ordinances.—The ordinances and by-laws of the council are published in a newspaper of the city, selected by the council as the official means of publication, and are posted in three conspicuous places in each ward for two weeks, before they become operative.
Council Powers.—The city council has about the same powers as a village council in regard to streets, the prevention and extinguishment of fires, etc.—the same in kind but somewhat more extensive. But it can also levy taxes for public purposes, as has before been said. It usually elects the assessor, the city attorney, the street commissioner, and a city surveyor, and in some states other officers.
The recorder, treasurer, assessor, justices of the peace, and police constables, have duties similar to those of the corresponding officers in a village or a town.
Some Pertinent Questions.
If two persons should claim the same seat in the city council, who would decide the matter?
State three ways in which a proposed ordinance may become an ordinance. Two ways in which it may fail. How can persons living in a city find out what ordinances the council passes? How far are the ordinances of any city operative?
Compare the government of a village with that of a city.
Are school affairs managed by the city council? How is it in a village? In a town.
If a new school-house is needed in a city, and there is not money enough in the treasury to build it, what can be done?
If you live in a city having a special charter, borrow a copy of it from a lawyer or from the city recorder, and find out what powers and privileges are granted to the corporation not specified in the general law; what limitations are imposed; and, if a municipal court is provided for, what its jurisdiction is in civil actions and in criminal prosecutions.
Name the principal officers in your city. The aldermen from your ward.
What are some of the dangers of city government? Consult Macy's OurGovernment, pp. 51-53, and Nordhoff's Politics for Young Americans.
Questions for Debate.
Resolved, That for a community of 5000 inhabitants or less a village organization is better than a city organization.
Need Of.—A county organization is needed for the following reasons:
1.To establish the lower organizations. As we have seen, the organizations within the county are established by county officers. But, it may properly be asked, why not have them organized by the state directly? There are at least three good reasons: In the first place, it would be too burdensome to the state; that is, the state would act through the legislature, and to organize all the individual school districts, towns, villages, and cities, would take up too much of the time of the legislature. In the second place, the organizing could only be done at certain times, namely during the session of the legislature, and in the meantime communities would have to wait. In the third place, the records of incorporation would be inaccessible in case they were needed for reference.
2.To serve as a medium between the state and the lower organizations.The state uses the town, village, and city to value property for purposes of taxation and as election districts. But it gets its taxes and its election returns through the county. Here again may arise the question, why not send the state taxes directly to the capital and make election returns directly also? At least two good reasons appear: It would increase the work and therefore the number of officials at the capital, and if a mistake should be made it could not be so easily discovered and corrected.
3.To carry on public works beyond the power of the towns individually.A desired local improvement may be beyond the power of a town either because it is outside of the jurisdiction of the town or because of its expense. Thus, a road may be needed between two centers of population, villages or cities, which would run through several towns, while the jurisdiction of the towns individually extends only to their own borders. Or a bridge over a wide stream may be needed, which would be too expensive for the town in which it is located. The road and the bridge would better be provided by the county.[Footnote: Sometimes state aid is secured. Do you think it wise, as a rule, for the state to grant such aid?] And the poor can generally be better cared for by the county than by the individual towns, for the county can erect and maintain a poor-house.
4.To secure certain local officers not needed in every town;for instance, a register of deeds, the coroner, the judge of probate, the superintendent of schools (in most states), and the surveyor.
5.To serve as a territorial basis for the apportionment of members of the legislature.This is, perhaps, merely an incidental gain. But its convenience in defining legislative districts is obvious.
6.To make justice cheap and accessible.It is well in many ways, as we have seen, to have in every town, village, and city, courts of limited jurisdiction. But toestablish justicein any generous or satisfying sense there should be within the reach of every citizen a court competent to tryanydifference between individuals regardless of the amount in controversy, and able to punish any crime against the laws of the state. To bring such a court within the reach of every one was the original reason for the establishment of the county, and remains today the greatest advantage derived from its existence.
Establishment.—Counties are established by the state legislature.
In thinly settled parts of a state the counties are much larger than in the populous parts. A county should be large enough to make its administration economical, and yet small enough to bring its seat of justice within easy reach of every one within its boundaries. In the ideal county a person living in any part thereof can go to the county seat by team, have several hours for business, and return home the same day.
County Board.—The administration of county affairs is in the hands of the county commissioners or supervisors. This board is usually constructed on one of two plans: Either it consists of three or five members, the county being divided into commissioner districts; or else it is constituted of the chairmen or other member of each of the several town boards. The former plan prevails in Minnesota, Iowa, and other states; the latter in Wisconsin, Michigan, most of Illinois, and in other states.
The commissioners have charge of county roads and bridges, county buildings and other county property, and the care of the county poor. Through the commissioners the county exercises the usual corporate powers.
Recording Officer.—The recording officer of the county is called in some states the county auditor, in others the recorder, and in others the county clerk. As we would expect, he is secretary of the board of commissioners and the custodian of county papers; and all orders upon the treasurer are issued by him. The auditor is also bookkeeper for the county, that is, he keeps an account of the money received and paid out by the county treasurer.
In Minnesota and some other states, he computes all the taxes for the county, [Footnote: In some states, among them Wisconsin, this computation is performed by the several town clerks, and the moneys are collected by the town treasurers.] and makes the tax-lists, showing in books provided for the purpose just how much the tax is on each piece of real estate and on personal property. These books he turns over to the county treasurer to be used in collecting the taxes.
Treasurer.—The county treasurer is, in some states, one of the most important officers. He is the great financial agent, collecting all the taxes paid by the people for school, town, village, city, county and state purposes, except assessments for city sidewalks and street grading. Great care must, therefore, be taken to guard the public money. The precautions serve as a check upon weak or dishonest officials, while right-minded ones welcome them as keeping their good name above suspicion. As a type, the precautions taken in Minnesota are given, to-wit:
1. The selection of an honest man for the office, so far as possible, is a prime consideration.
2. The treasurer must give a bond for such amount as the county commissioners direct.
3. He shall pay out money only upon the order of proper authority. [Footnote: Moneys belonging to school district, town, village, or city, are paid on the warrant of the county auditor; county money, on the order of the county commissioners, signed by the chairman and attested by the county auditor; state money, on the draft of the state auditor in favor of the state treasurer.] This order signed by the payee is the treasurer's receipt or voucher.
4. He shall keep his books so as to show the amount received and paid on account of separate and distinct funds or appropriations, which he shall exhibit in separate accounts.
5. The books must be balanced at the close of each day.
6. When any money is paid to the county treasurer, excepting that paid on taxes charged on duplicate, the treasurer shall give, to the person paying the same, duplicate receipts therefor, one of which such persons shall forthwith deposit with the county auditor, in order that the county treasurer may be charged with the amount thereof.
7. The county auditor, the chairman of the board of county commissioners, and the clerk of the district court, acting as an auditing board, carefully examine at least three times a year the accounts, books and vouchers of the county treasurer, and count the money in the treasury.
8. The state examiner makes a similar examination at least once a year. No notice is given in either case.
9. As security against robbers, the money in the possession of the county treasurer must be deposited on or before the first of every month in one or more banks. The banks are designated by the auditing board, and must give bonds for twice the amount to be deposited.
Register of Deeds.—Without hope of reward no one would work. To encourage frugality, people must be reasonably secure in the possession of their savings. One of the things for which a person strives is a home. Therefore, great care is taken to render a person who has bought a home, or other landed property, secure in its possession. Among the means employed are these: 1. The purchaser is given a written title to the land. This is called adeed. 2. In order that any person may find out who owns the land, thus preventing a person reputed to own it from selling it, or the owner from selling to several persons, acopyof the deed is made by a competent and responsible public officer in a book which is kept for that purpose and which is open to public inspection. This is calledregisteringthe deed, and the officer is called the register of deeds. [Footnote: Incidentally this officer records other instruments, such as official bonds, official oaths, etc.] The register may have assistants, if necessary, he being responsible for their work.
Judge of Probate.—But not only should a person enjoy the fruit of his labors while living, he should also be able to feel that at his death his property shall descend to his family or others whom he loves. Many persons before they die make a written statement, telling how they wish their property disposed of. This written statement is called a will or testament. Some who are possessed of property die without making a will. They are said to dieintestate. To see that the provisions of wills, if any be made, are complied with, and, in case no will is made, to make sure that the property comes into possession of those best entitled to it, is the important and wellnigh sacred duty of an officer called the judge of probate. If no one is named in the will to look after the education and property of minor heirs, the judge of probate may appoint a guardian. The appointee must give bonds for the faithful discharge of his duty. [Footnote: see chapter VII.] Incidentally it is made the duty of the judge of probate to appoint guardians for any persons needing them, such as insane persons, spendthrifts, and the like. He seems to be the friend of the weak.
County Surveyor.—To survey all public improvements for the county, such as roads, lands for public buildings, &c., there is an officer called the county surveyor. He is required to preserve his "field notes" in county books furnished for the purpose. Individuals frequently call upon him to settle disputes about boundary lines between their estates.
Superintendent of Schools.—Not every one is competent to teach, and to protect the children as far as possible from having their time worse than wasted by incompetent would-be teachers, is the very responsible duty of the county superintendent of schools. From among those who present themselves as candidates he selects by a careful examination those whom he deems most competent, and gives to each a certificate of qualification. He visits the schools and counsels with the teachers regarding methods of instruction and management. It is his duty also to hold teacher's meetings. He reports annually to the state superintendent of public instruction such facts as the superintendent calls for.
County Attorney.—Like railroads and other corporations, the county keeps a regularly employed attorney to act for it in all suits at law. This officer is called the county attorney. He represents the state in all criminal prosecutions and is for this reason sometimes called the state's attorney.
Sheriff.—An ancient officer of the county is the sheriff. He has three principal lines of duty: 1. To preserve the peace within the county. 2. To attend court. 3. To serve processes. He pursues criminals and commits them to jail. He has charge of the county jail and is responsible for the custody of the prisoners confined in it. He opens and closes each session of the district court, and during the term has charge of the witnesses, the juries, and the prisoners. It is his duty to carry into execution the sentence of the court. He serves writs and processes not only for the district court, but also for justices of the peace and court commissioners.
Coroner.—Another officer of the county, ancient almost as the sheriff, is the coroner. If the dead body of a human being is found under circumstances which warrant the suspicion that the deceased came to his death by violence, it is the coroner's duty to investigate the matter and ascertain if possible the cause of the death. He is aided by a jury summoned by him for the purpose.
At a time in early English history when the only county officers were the sheriff and the coroner, the coroner acted as sheriff when the latter was for any reason incapacitated. And the practice still continues. Thus, if there is a vacancy in the office of sheriff, the coroner acts till a new sheriff is chosen. And in most states the coroner is the only officer who can serve process upon the sheriff or who can arrest him.
Clerk of the Court.—The district court [Footnote: See next chapter.] is a "court of record." That is, it has a seal and a special officer to record its proceedings. He is called the clerk of the court. He of course also files and preserves the papers in each case. He has also certain incidental duties.
Court Commissioner.—Court is not always in session, and there are certain powers possessed by a judge "in chambers," that is, which the judge may exercise out of court. For instance, he may grant a writ of attachment or ofhabeas corpus. Where a judicial district comprises several counties, as is usually the case, a provision is made in some states for an officer in each county authorized to perform such duties in the absence of the judge. In Minnesota and most other states he is called the court commissioner.
Election and Term.—The county officers are in most sections of the country elected by the people of the county. The term is usually two years.
Removals and Vacancies.—Provision is made for the removal of any county officer for non-feasance or malfeasance in office. The power to remove is generally vested in the governor. The accused must be given an opportunity to be "heard in his own defense." Vacancies are generally filled by the county commissioners. They appoint some one, not one of themselves, to serve until the next election.
Qualifying.—Each officer before assuming the duties of his office takes the official oath. All of the officers except the commissioners and the superintendent of schools are required to give bonds. Copies of these bonds are preserved by the register of deeds, and the originals are forwarded to the secretary of state.
Compensation.—Compensation is usually by salary or by fees. The matter is usually in the hands of the county commissioners, except so far as concerns their own compensation, which is fixed by law. This is usually aper diem.
Eligibility.—Any voter who has resided in the county a certain time (usually about thirty days) is eligible to any county office, except that of attorney or court commissioner. The former must be a person admitted to practice in all the courts of the state. The latter must be a man "learned in the law."
In some cases a person may hold two offices at the same time; thus, a person may be court commissioner and judge of probate. But no person can hold two offices one of which is meant to be a check upon the other. For instance, no one could be auditor and treasurer at the same time. In some states there is a bar against holding certain offices for two terms in succession.
Some Pertinent Questions.
What is the difference between a town road and a county road? Point out one of each kind. If you wanted a change in a county road, to whom would you apply?
Get a warranty deed and fill it out for a supposed sale. Compare with it a mortgage deed. A quitclaim deed. Compare a mortgage deed with a chattel mortgage. Account for the differences. If A buys a farm from B and does not file his deed, who owns the farm?
If a man possessing some property should get into habits of gambling and debauchery, squandering his money and not providing for his family, what could be done? On what grounds could this interference by a public officer be justified?
Who would be keeper of the jail if the sheriff should be a prisoner? Why not one of the deputy sheriffs?
Study out carefully the derivation of the words auditor, sheriff, coroner, probate, commissioner, supervisor, superintendent.
The county attorney is usually paid a salary while the register of deeds usually gets the fees of his office. What seems to govern in the matter? Name the salaried officers in this county. The officers who are paid fees.
To whom are school taxes paid? Town taxes? County taxes? State taxes? How much of the money paid at this time goes to the United States?
How does the tax collector know how much to take from each person? From whom does he get this book?
The amount of a person's tax depends upon thevalueof his property and the rate of tax. How is the former fact ascertained? To whom, then, does the assessor report when he has concluded his labors?
The rate of tax depends upon the amount to be raised and the value of the property on which it is to be assessed. Who determines how much money shall be raised in a district for school purposes during any year? When is this determined? Who records the proceedings of the meeting? To whom must he report the amount of tax voted? Who determines how much money is to be raised in the town for bridges, etc.? When? Who records the proceedings of the meeting? To whom must he report the amount of tax voted? Who vote the taxes in a village? When? Who reports to the computing officer? Who vote the taxes in a city? Why not the people? When? How reported to the computing officer? Who determines how much money is to be raised for county purposes? When? Who is secretary of the meeting? To whom does he report? Who determines how much money shall be raised for state purposes? How does the proper officer become acquainted with the facts necessary to the raising of the money?
State the gist of the matter brought out by the questions in the last four paragraphs.
How does the school district treasurer get the school district money?
Trace a dollar from the time it leaves a farmer's hand as taxes till it reaches the teacher as salary.
If you had a bill against the county how would you get your pay? What could you do if pay were refused? Make out in due form a bill against your county.
Classes of Cases.—There are three general classes of judicial business carried on in the county: probate business, civil actions, and criminal prosecutions.
Jurisdiction.—The principal business and characteristic work of probate courts is the settlement of the estates of deceased persons. Jurisdiction extends in most states over both personal property and real estate. Incidentally probate courts appoint guardians for minors and others subject to guardianship, and control the conduct and settle the accounts of such appointees.
In many states jurisdiction wholly extraneous to the characteristic work of these courts is imposed upon them, or the probate business is associated with other jurisdiction in the same court. Thus, in Minnesota the judge of probate is petitioned in the organization of cities, as we have seen. In Wisconsin, the county court, which has charge of the probate business, has civil jurisdiction also. In Illinois, the county court in addition to the probate business has jurisdiction "in proceedings for the collection of taxes and assessments." And in Kansas, the probate court has jurisdiction in cases ofhabeas corpus.
Procedure in case a Will has been made.—The proceedings of a probate court have in view two chief objects, namely, to pay the debts of the deceased and to distribute the remainder of his property among those entitled to it. In case the deceased has left a will, the proceedings are as follows:
1.Petition for probate.Within a short time, usually thirty days, after the death of the testator, the executor or other custodian of the will presents it to the probate court with a petition that it be admitted to probate. (For form of petition, see p. 286.)
2.Citation to persons interested.Acting on the petition, the probate judge publishes in a newspaper a notice to all persons interested in the estate that at a specified time, action will be taken on the petition. To afford all who are interested an opportunity to be present at the "hearing," the notice must be published for a prescribed time, and in some states each of the heirs must, if possible, be personally notified.
3.Hearing the proofs.At the time specified in the notice, unless postponement be granted for cause, the proofs of the validity of the will are presented. It must be shown that the testator is dead, that the instrument was executed by him voluntarily, in the manner prescribed by statute, and while he was of "sound mind and disposing memory." Usually it will be sufficient for the two witnesses to the instrument to appear and testify to the material facts. If any one interested in the distribution of the property thinks that this will should not be accepted as the "last will and testament" of the deceased, he should now enter objections. In case of a contest, the proceedings are about the same as those in a justice or circuit court; but there is no jury in the probate court, nor is there any plea except the petition.
4.Admission to probate.If the proofs are satisfactory to the court, the will is "admitted to probate," that is, it is accepted as true and valid. Its validity is established by a decree of the court, and a certificate of the fact is attached to the will. A copy of the will is made in a book kept for the purpose. The original and all the papers in the case are filed and preserved by the judge of probate. (See pp. 287 and 288.)
5.Issuance of letters testamentary. The genuineness of the will being established, it is now in order to carry out its provisions. Usually the testator designates in his will the person or persons whom he wishes to act as his representative in the settlement of the estate. Such a person is called an "executor." If no person is so named, the court appoints an "administrator with the will annexed." In either case the person derives his authority from the court. Unless excused in the will, the executor or administrator is required to give bonds proportioned to the amount of the personal property in the estate, the amount of bond being specified by the court. The executor is then furnished with a copy of the will and with "letters testamentary." (The authority granted by the letters may be seen by reference to the form in the appendix, p. 288.)
6.Notice to creditors. It is a principle of law that all just debts shall be paid out of one's property before any further disposition thereof can take effect. In order that all persons having claims against the estate of the deceased may have an opportunity to present their accounts, a time for such presentation is designated by the court, and due notice thereof is given, usually by publication in a newspaper.
7.Inventory of the estate. In the meantime, the executor makes an inventory of the property, and appraisers appointed for the purpose "put a value" thereon, the several items of the inventory being valued separately.
8.Auditing claims.At the time appointed in the notice, the court passes upon the claims of creditors. Since unscrupulous persons are at such times tempted to present fraudulent claims, the judge exercises great care in examining the accounts. To facilitate matters it is required that accounts be itemized, and that they be verified by oath.
Debts are paid out of the personal property, if there be enough. If not, the court authorizes the executor to sell real estate to pay the balance.
9.Settlement of estate and division of property.The executor having collected debts due the estate and settled all claims against it, makes his final statement to the court, and the remaining property is distributed among the heirs and legatees. To continue and perfect the chain of title, the division of the real estate is recorded in the office of the register of deeds.
If there are minor heirs, the court appoints guardians for them.
Procedure in case no Will is made.—If there is no will, the four steps which have in view the establishment of the validity of the will, are unnecessary. The initial step in this case is the appointment of an administrator to do the work which under a will is done by the executor. In order that an administrator acceptable to the heirs may be appointed, the following steps are taken:
1. Someone interested in the estate petitions for the appointment of a certain person as administrator.
2. Notice of hearing is given by publication, citing those interested in the estate to appear at a certain day if they desire to enter any objection to the appointment.
3. If at the time specified for the hearing no objection is made, the person petitioned for is appointed administrator, and "letters of administration" are issued to him.
Then beginning with the sixth step the proceedings are substantially the same as in case of a will, except that the basis of distribution in the ninth is thelawinstead of thewill.
"As befits an authority which thus pervades the sanctity of a household, crosses the threshold and exposes to public view the chamber of mourning, probate jurisdiction in the United States is exercised with great simplicity of form as well as decorum." [Footnote: Schouler's Executors and Administrators.]
Some Pertinent Questions.
What is a will? [Footnote: See Dole's Talks about Law.] Why must it be in writing? Must it be in the handwriting of the testator? Why are the witnesses essential? Is the form of a will essential? Is it necessary that the witnesses know the contents of the will?
What is the difference between an heir and a legatee? May either be witness to the will? Why? If the witnesses die before the testator, how can the will be proved?
What is a codicil? If there be two wills of different dates, which will stand? What difference does it make whether a person having property makes a will or not?
Group the proceedings in case of a will into three groups.
A minor may have two guardians, one of its person and the other of its property? Why? What is to hinder a guardian from abusing his trust?
Jurisdiction.—This court has original jurisdiction in all civil and criminal cases within the district which do not come within the jurisdiction of the justice courts. It has appellate jurisdiction from probate and justice courts as provided by law.
Procedure.—The proceedings are substantially the same as in a justice court except that in criminal cases they are based upon an indictment by the grand jury, and after the arguments the judge "charges" the jury, that is, instructs it regarding its duty.
Pleadings.—The pleadings in the district court are somewhat more elaborate than in a justice court, and a few words in regard to them further than what has already been given may not be out of place here.
The defendant in making his plea may raise a question as to the jurisdiction of the court, or he may ask that the case be thrown out of court on account of some irregularity of the writ upon which it is based. Since these pleas, if successful, simply delay the trial, because a new suit may afterwards be brought, they are calleddilatory pleas.
But he may deny the plaintiff's ground of action by denying the allegations of the plaintiff and challenging him to trial. This plea is called the general issue. He may admit the plaintiff's allegations but plead other facts "to avoid their effect." This is called the plea of confession and avoidance. These pleas are on the merits of the case, and are calledpleas in bar. There are other pleas of this kind.
"Pleas in bar, except the general issue, may give rise to counter pleas" introduced by the parties alternately.
But the issue may be one of law instead of fact, and the defendant may enter ademurrer, claiming that the matters alleged are not sufficient in law to sustain the action.
Evidence.—Some of the fundamental principles or rules which govern the taking of evidence and the weighing of testimony may properly appear here. These rules are designed to exclude all irrelevant matter and to secure the best proof that can be had.
1.Witnesses must be competent. That is, in general, they must be able to understand the nature and solemnity of an oath. This will usually exclude children below a certain age, insane persons and persons drunk at the time of offering testimony.
2.Witnesses must testify of their own knowledge. Usually they are barred from telling what they simply believe to be the fact or what they have learned from hearsay.
3.Evidence must go to prove the material allegations of the pleadings. It must be confined to the question at issue. It is to be observed that the evidence must not only go to prove the matter alleged, but it must be thematerialnot the superfluous matter. What is material and what superfluous will depend upon the case. Thus if it is alleged that a suit of clothes was obtained by the defendant at a certain time, his obtaining the clothes is the material fact and the time may be superfluous or immaterial. But if a note is in controversy its date is material as establishing its identity.
4."The evidence must be the best of which the case is susceptible."Thus, in case of a written instrument the best evidence is the instrument itself; the next best, a copy of it; the next, oral statement of its contents. And a copy will not be accepted if the original can be produced.
5.The burden of proof lies on the affirmative. In civil cases the party affirming is usually the plaintiff. In criminal cases it is the state. Harmonizing with this principle is the constitutional provision that in criminal cases the accused shall not be required to give evidence against himself.
These are the principal rules of evidence, but they have many applications. Learned volumes have been written elaborating them.
Grand Jury.—A grand jury may be defined as a body of men returned at stated periods from the citizens of the county, before a court of competent jurisdiction, chosen by lot, and sworn to inquire of public offenses committed or triable in the county.
The number of grand jurors was formerly twenty-three. By statute many of the states have fixed upon a smaller number, Oregon having only seven. A common number is fifteen. Some states have no grand jury. In some others the grand jury is summoned only when requested by the court.
The United States constitution and most of the State constitutions declare that no person shall be held to answer for a criminal offense, except a minor one, "unless on the presentment or indictment of a grand jury." This is to save people from the vexation and expense of arrest and trial unless there is reasonable presumption of their guilt. On the other hand, a grand jury should aid in bringing to justice persons who indulge in practices subversive of public peace, but which individuals are disinclined to prosecute, such as gambling. Incidentally the grand jury examines into the condition of the county jail and poor-house.
The mode of selecting grand jurors is in general the same in all the states. The steps are three: first, the careful preparation of a list of persons in the county qualified to serve; second, the selection, by lot, from this list of the number of persons needed; third, the summoning of the persons so chosen. The number of persons in the first list is from two to three times the number of jurors. The preparation of the list is in some states entrusted to the county board; in others, to jury commissioners; in others, to the local boards. The names are reported to the clerk of the court, who in the presence of witnesses, makes the selection by lot. The summoning is done by the sheriff.
On the first day of the term, the court appoints one of the jurors foreman. The jury is then sworn, and, after being charged by the court, retires to a private room and proceeds to the performance of its duty.
The deliberations of the grand jury are conducted in secret. It may, however, summon and examine witnesses, [Footnote: Witnesses for the accused are not usually examined by the grand jury.] and may have the advice of the court or of the county attorney.
The fact that a crime has been committed within the county may be brought to the notice of the grand jury by any member thereof or by any other person. If upon examination there seems to be reason for believing that it was committed by the person accused, the county attorney is called upon to frame a formal accusation against him, called anindictment, which is endorsed with the words "a true bill," and sent to the court. Upon the indictment the person accused is arrested and tried.
If the evidence against the accused is insufficient to warrant indictment, but yet his innocence is questionable, the grand jury may bring apresentmentagainst him. This is an informal statement in writing addressed to the court setting forth the offense and stating that there is a reasonable probability that a certain person, named, has committed it. A person arrested on a presentment is examined before a justice of the peace or other magistrate, as if arrested on a complaint. Neither an indictment nor a presentment can issue except upon concurrence of the number of grand jurors specified by statute. Under former practice the jury numbered twenty-three and the concurrence of twelve was necessary.
The grand jury is bound to investigate the charge against any one held by a justice "to await the action of the grand jury;" also any charge brought by a member of the grand jury. And conversely it is the sworn duty of each member to report any crime known by him to have been committed within the county. Any outsider may file information or bring charges, but the grand jury may use its own judgment as to the necessity of investigating them.
Petit Jury.—A petit jury is a body of twelve men impaneled and sworn in a district court to try and determine by a true and unanimous verdict, any question or issue of fact, in any civil or criminal action or proceeding, according to law and the evidence as given them in court.
The mode of selecting petit jurors is in general the same as that pursued in selecting grand jurors. The "list of persons qualified to serve" is, however, usually larger. The "selection by lot" is made thus: slips of paper, each containing one of the names, are folded and deposited in a box. The box is shaken, and the prescribed number of slips is drawn. The persons whose names thus appear are summoned as jurors.
When an action is called for trial by jury, the clerk draws from the jury box the ballots containing the names of the jurors, "until the jury is completed or the ballots exhausted." If necessary, the sheriff under direction of the court summons bystanders or others in the county to complete the jury. Such persons are calledtalesmen.
To secure an impartial jury, each party may object to or "challenge," a number of the jurors. The challenge may be "peremptory" or "for cause." The peremptory challenge, as its name implies, is one in which no reason need be assigned. The number of such challenges must, of course, be limited. In civil suits it is usually limited to three by each party. In criminal cases, the state has usually two peremptory challenges and the defendant five. If the offense is punishable with death or state prison for life, the state has in Minnesota seven peremptory challenges and the defendant twenty.
Challenges for cause may be either general or particular. A general challenge of a proposed juror may be made on the basis of his incompetency or unworthiness to act in such capacity inanyaction. A particular challenge may be based on some bias in this particular case which would unfit the proposed juror for rendering an impartial verdict.
Habeas Corpus.—Not connected directly with trials but related to the district court is the writ ofhabeas corpus. This is the most famous writ in law, and has been styled "the chief bulwark of liberty." It was designed originally to secure a person from being detained in prison without due process of law, and it served as a mighty check upon arbitrary power. Its operation has been extended so as to include any detention against the will of the person detained. The writ, as will be seen by reference to the appendix (p. 290), commands the person holding another in custody to bring him before the judge and show cause for the detention. If the judge finds that the prisoner is detained for cause he remands him to custody; if not he orders his discharge.
Concluding Remarks.—This discussion might easily be continued. Volumes have been written on the administration of justice. But perhaps enough has been given to show that great care is taken to protect the interests of the innocent and to do equal and exact justice to all. In view of flippant remarks sometimes made regarding courts of justice, it is pertinent and proper to go at least so far into detail. The study of Civil Government will have been pursued to little purpose if respect for law be not one of its fruits.
Some Pertinent Questions
How many judicial districts in this state? [Footnote: Consult Legislative Manual.] How many counties in the largest? In the smallest? How many have more than one judge? Why not let each county constitute a judicial district?
If some one owed you $40 and refused to pay, in what court could you sue?If he owed you $250? If the suit involved $1,000,000?
What is the relation of the plea to the action? Can anything be proved which is not alleged in the plea? Show the purpose of each rule of pleading. Of each rule of evidence.
What are the differences between a grand jury and a petit jury? Why is each so named?
If a person accused of crime is examined and held by a justice of the peace, as stated in a previous chapter, must he be indicted by a grand jury before he can be tried? Why? May a person's acts be inquired into by the grand jury without his knowing anything about it? May grand jurors reveal the proceedings of the jury? Why?
Why is there such a thing as a peremptory challenge of a juror? Why so many given to a person accused of crime?
Are lawyers officers of the court? What oath does each take on admission to the bar?
Questions for Debate
Resolved, That trial by jury has outlived its usefulness.
Resolved, That capital punishment is not justifiable.
References.—Dole's Talks about Law; Lieber's Civil Liberty and Self Government, 234-6; The Century, November 1882; Atlantic Monthly, July 1881; North American Review, March 1882 and July 1884.
[Illustration: Papers—Prepare with care the "tabular views" of the town, village, city and county, as follows]
Old England.—Not only our language but also very many of our political institutions we have inherited from England. But the country now called by that name is not the realoldEngland. The fatherland of the English race is the isthmus in the northern part of Germany which we now call Schleswig. Here dwelt the old Angles or English. To the north of them in Jutland was the tribe called the Jutes, and to the south of them, in what we now call Holstein and Friesland, dwelt the Saxons. "How close was the union of these tribes was shown by their use of a common name, while the choice of this name points out the tribe which at the moment when we first meet them, in the fifth century, must have been the most powerful in the confederacy." [Footnote: Green's History of the English People.] Among themselves they bore in common the name of Englishmen.
Among the characteristics of those German ancestors of ours are the following: They were very independent; the free landholder was "the free-necked man." The ties of kinship were very strong. "Each kinsman was his kinsman's keeper, bound to protect him from wrong, to hinder him from wrong-doing, and to suffer with and pay for him if wrong were done." [Footnote: Green's History of the English People.] They were very much attached to home. "Land with the German race seems everywhere to have been the accompaniment of full freedom…. The landless man ceased for all practical purposes to be free, though he was no man's slave." [Footnote: Green's History of the English People.] Among themselves they were quite social. Though tillers of the soil they lived, not isolated, but grouped together in small villages. This may have been partly for mutual protection. They were lovers of law and order.
The Township.[Footnote: See American Political Ideas, pp. 31-63.]—The derivation of the word "township" shows us to whom we are indebted for the institution itself. The word is derived from the Anglo-Saxontun-scipe.Tunmeant hedge, ditch or defense; andscipe, which we have also in landscape, meantwhat may be seen. Around the village before mentioned was thetun, and beyond were the fields and meadows and woodlands, the whole forming the tun scipe or township.
To administer justice and to take any other action for the common good, the freemen gathered infolk-mootaround the moot hill or the sacred tree.
Though the proceedings of these assemblies differed in detail from those of our town meetings, both contain the great principle of local self government.
The County.[Footnote: See American Political Ideas, pp. 31-63.]—Although with us the state is divided into counties and the counties into towns, the order of formation was originally the other way. The towns are the oldest institutions in our system. Later, from uniting forces in war came a union of action among adjoining towns during peace. Thus grew up what was called the Hundred.
When in the fifth century the English invaded Britain, many of the chieftains or military leaders rose to kingship over small areas. On the completion of the conquest these kings struggled among themselves for leadership, until finally England became united into one kingdom, and the little kingdoms were reduced to shires ruled by earls. With the growth of the king's power, that of the underkings or earls grew less. Then other shires were formed, and this institution became simply an administrative division. After the Norman conquest the French terms count and county came into use.
The earnest student will find both pleasure and profit in looking up the origin and history of the trial by jury, the criminal warrant, the writ of habeas corpus, bail, common law, the general rules of parliamentary practice, etc.
Town and County in America.—In New England the most important division of the state is the town; in the South it is the county.[Footnote: An excellent discussion of this may be found in "Samuel Adams, the Man of the Town Meeting," John's Hopkins University Studies in History, Volume II, Number 4.] In other states the relative importance of the two organizations depends upon the influence to which the state was most strongly subjected.
The reason for the difference is found in the character and circumstances of the early colonists.
In New England, the church was the center of the community. The severity of the climate and the character of the soil made it impracticable to cultivate large farms. The colonists had come mainly from the towns of England. These considerations and the presence of fierce and unfriendly Indians caused the settlers to group themselves into compact settlements. Their self assertion prompted them, and their intelligence enabled them, to take active part in public affairs. Hence the importance of the town in New England.
In the South, the colonies were planted largely in the interests of the proprietaries. The leading spirits had been county gentlemen in England and they naturally favored the county system. The mass of the people were unaccustomed and indifferent to direct participation in the government. Again, the warm climate and fertile lands were favorable to large plantations and a dispersed population; so that the character of the people and the circumstances under which they lived were alike favorable to the establishment of the county system pure and simple. To quote the pithy statement of Professor Macy, "The southern county was a modified English shire, with the towns left out. Local government in New England was made up of English towns with the shire left out."
Subsequently counties were formed in New England for judicial purposes, but the towns retained the greater number of their functions; and in the south, the counties were afterwards subdivided into election and police districts, but the administrative power remained with the county.
The Middle States divided the local power between the town and the county.
Migration is chiefly along the parallels of latitude. And people from habit and instinct organize new governments largely on the plans to which they are accustomed. Hence we are not surprised to find that in the states formed south of the line of the Ohio, the county is the principal division; while in the northwestern states the town is the important factor. Though in the Northwest the county is more important than in New England, the influence of the towns in county affairs is generally maintained by the selection of members of the county board from the several towns.
Illinois is a good example of the truth of the generalizations at the beginning of the preceding paragraph. The state is very long and reaches far to the south. The southern part of the state was settled first, and almost pure county government prevailed. By and by the northern part began to settle, and it grew in population faster than the southern part. The town was introduced, and now prevails in all but a few counties.
Can you see the relation of these facts to the generalization? Can you tell where the people of the two sections of the state came from?
1.Historical reason. We have states now because we had such organizations at the time this government was established. The colonies, founded at different times, under different auspices, by people differing in religion, politics, and material interests, remained largely independent of each other during colonial times, and on separating from England became independentstates.
2.Geographical reason. Different climatic and topographic conditions give rise to different industries, and therefore necessitate different regulations or laws.
3.Theoretical reason. The theory of our government is that ofdecentralization of power.[Footnote: There being a constant tendency to centralization, this thought should be emphasized. See Nordhoff's Politics for Young Americans. (71)] That is, we think it best to keep power as near as possible to the people. If a certain work can be accomplished fairly by individual enterprise, we prefer that it be done so rather than through any governmental agency. If work can be done by the town just as well as by the county, we assign it to the town. And as between the state and the general government, we assign no duty to the latter which can be performed as well by the former.
4.Practical reasons. There are many practical reasons. Among them may be mentioned the following:
We need the state as a basis for the apportionment of members of congress. This is a federal republic, and representation in the national councils can be had only through statehood.
We need the state to establish a system of education, to control corporations, to put down riots when the local authorities cannot do so, to establish the smaller organizations, etc. These are some of the things referred to in paragraph three, which the state can do better than the general government.
There is in the state also a high court of justice to which cases may be appealed from the courts below.
The "old thirteen" originated in revolution. Theydeclaredthemselves "free and independent states," and maintained the declaration by force of arms. Each became a state "in the Union" by ratifying the constitution. Under the constitution states have been admitted into the Union on terms prescribed by congress. The plan in general is as follows:
1. When the number of people in a territory equals or nearly equals the number required to secure a representative in congress, the inhabitants thereof may petition congress, through their delegate, for an act authorizing the formation of a state government.
2. If the petition is granted, an "enabling act" is passed. This usually defines the territory to be comprised in the new state, provides for the calling of a constitutional convention, requires that the state government to be framed shall be republican in form, states the number of representatives in congress which the state shall have until the next census, and offers a number of propositions for acceptance or rejection by the convention. Among these are proposals giving land for the support of common schools and of a university, and for the erection of public buildings; and offering a portion of the net proceeds of the sale of public lands within the state for internal improvements. These offers are conditioned upon non-interference on the part of the state with the holding and selling by the United States of the lands within the state owned by the general government, and their exemption from taxation. The enabling act for Minnesota is given in the appendix, pp. 355-8. It is in a large measure typical. Students in most of the states can find the enabling act for their state in the legislative manual thereof.
Michigan, Kansas and Oregon formed their constitutions without an enabling act.
3. The constitutional convention provided for in the enabling act, having ascertained that it is the wish of the people to form a state, frames a constitution and submits it to the people of the proposed state for adoption.
4. If it is adopted, [Footnote: Wisconsin rejected the constitution of 1846, and New York that of 1867.] copies of the constitution are sent to the president and to each house of congress.
5. If the constitution framed is in accordance with our institutions, it is accepted and the state is admitted. [Footnote: The acts of congress of 1866 and 1867, admitting Colorado, were both vetoed by president Andrew Johnson.]
Kentucky, West Virginia, Maine, California and Texas became states in theUnion without having been territories. The first two were detached fromVirginia, and the third from Massachusetts, and admitted at once asstates. California and Texas had been independent states before admission.
As typical of the mode of restoring the southern states to their old place in the Union, the act restoring Tennessee is given on page 358.