CHAPTER XI
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.