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.