Clearly, an experiment that has so much promise in it deserves every encouragement, and no effort should be spared to direct the movement into scientific lines.
4: Codification of Standing Clauses. The value of standardizing constantly recurring terms and provisions, which enter into or are subsidiary to the main provisions of statutes, is beyond doubt. Such standardization economizes legislative work, helps to avoid duplication and inconsistency, and makes for more perfect equality in the administration of the laws. If effected by separate statutes, it ensures a degree of care in the consideration of technical detail which is otherwise hardly possible. For subsidiary clauses forming part of statutes dealing with contentious policies are often regarded as mere technicalities and escape proper scrutiny. As separate acts their preparation is likely to be committed to lawyers specially familiar with or interested in the particular subject, and they will receive the benefit of their knowledge and experience.
We have this standardization in our codes of procedure which control the criminal and civil enforcement of statutes from the point where the aid of the courts is invoked; we have it in the provisions of general city acts which govern the operation of municipal ordinances, since the creation of new administrative powers and remedies is not as a rule within the scope of delegated authority; we have it in interpretation acts, in acts relating to the exercise of eminent domain, in acts relating to public officers, official bonds, civil service acts, and perhaps others. The practice is thus obviously not a new one, but it is capable of much more extensive application.
The Report of the American Bar Association Committee, above referred to, submitted a list of topics the standardization of which was thought desirable, if practicable and suggested the preparation of a drafting manual of instructions and model clauses. The Bar Association authorized the Committee to proceed with the work, and the Reports of 1914-16 brought some installments of such a manual. There was thus drafted an act providing the procedure for the adoption of statutes or ordinances submitted to popular vote in municipalities. The enactment of such a statute would make it possible to provide very simply in any adoptive act, that the act shall not take effect in any city until adopted by popular vote therein. Clearly the existence of such a statute could not be otherwise than beneficial. Desirable legislation has been defeated repeatedly by defective submission clauses.
The result of a series of such "clauses acts" would be the codification of an important section of administrative law. It would give occasion to consider systematically certain phases of legislation upon which neither lawyers nor legislators appear to have settled convictions. The discussion of penalty clauses in the Report of 1915 will serve as an illustration of this; no similar discussion of this ever-recurring subject can be found anywhere in our entire legal literature. In our present legislative practice the matter is left to the discretion or whim of the draftsman and unless he offers some extreme or unusual clause, his propositions will arouse only the slightest interest.
Should the Committee of the American Bar Association succeed in completing the outlined manual or a substantial portion thereof, the endorsement of the Association would add considerable weight to whatever intrinsic merit the work might possess. Care would have to be taken, however, not to misrepresent the meaning of such endorsement. For in the nature of things it is impossible that a large body can properly scrutinize such work, and it is compelled to take much of it on faith and credit. No legislative measure, however, can safely dispense with searching and even unfriendly criticism.
There is one body preeminently fitted to give this criticism: the National Conference of Commissioners on Uniform State Laws. Its endorsement of an act is nearly always the result of protracted discussion extending over a number of annual sessions, and the value of the endorsement is proportionately high. In such a body the question would of course arise whether uniformity in standing clauses is possible. The impression may exist that local peculiarities enter largely into the subsidiary phases of legislation. Careful examination and still more a practical attempt at unification will probably show this impression to be unfounded.
Clauses acts operate by incorporation into other statutes which tacitly or expressly refer to them. Their mere enactment gives them no mandatory character; that comes only from voluntary acceptance by the legislature in connection with subsequent legislation. The legislature may at any time override them and insert different provisions in a particular act. This may result even from habit, and if possible such abrogation should be avoided by construction. However, in view of this precarious status, a general subsidiary act would have to win favor by its own merits. All the more readily should it be given a chance to prove its merits, and its non-mandatcry character should be an argument in favor of its adoption.