ecutive, but with some powers which have led them to
be considered the legislative authority of the county.
The courts have been forced to recognize that they
cannot be placed exclusively in any one of the three
divisions; and in some cases have used the term ad-
ministrative to include all of their various func-
tions.
One question which has arisen in some of the North-
ern states is whether they have the power to compel
witnesses to testify before them. In the states where
92
THE COUNTY BOARD
they are called courts the problem may settle itself,
but in other states very different answers have been
given. In New Jersey a board of freeholders has no
authority to summon a witness or to examine him. 1
In Michigan, a board of supervisors may subpoena a
witness, but may not punish for contempt if he re-
fuses to testify. 2 In New York the boards of super-
visors are authorized by statute to summon witnesses ;
and on refusal to answer pertinent questions any
judge may commit the defaulting witness to jail. 3
And in Massachusetts, by statute, county commis-
sioners may administer oaths, and impose petty pun-
ishments for disturbing their meetings. 4
It is difficult to make any general statement as to
the character of the members of county boards. Con-
ditions in the three thousand counties throughout the
country undoubtedly vary to a great degree; while
even in the same county better or worse men will be
elected at different times. In counties containing
large cities there has frequently been much dissatis-
faction with the county boards and sometimes serious
charges have been made against them. And in some
communities movements for political reform are
directed as much at the county boards as at municipal
authorities.
In rural counties such complaints are not frequent.
But this may be due in part to a less active spirit of
investigation. In the later months of 1905 serious com-
1 Brown v. Morris C. & B. Co., 27 N. J. Law, 648.
2 In re Blue, 46 Mich., 268.
8 County Law, 27 ; Code Civ. Proc., 855, 856.
4 Revised Laws, 1902, ch. 20, 22.
93
LOCAL GOVERNMENT
plaints and charges have been noticed from such coun-
ties in New York, Pennsylvania, Michigan and Cali-
fornia. 1 The chief justice of a Southern state writes
that county commissioners there "are incorruptible,
but as a rule weak. The voters regard almost anybody
as competent for such a place, and, therefore, vote
from personal predilection, rather than from a motive
to subserve the public good." And this statement
would probably apply to conditions in most parts of
the United States.
1 Sacramento Eecord-Union, Sept. 24 ; Utica Herald-Dispatch,
Sept. 28; Philadelphia Public Ledger, Oct. 28; Detroit Free
Press, January, 1906.
94
CHAPTER VI
JUSTICE AND POLICE
In another volume of this series, 1 the organization and
functions of the judiciary in the American system of
government has been discussed. It is necessary, how-
ever, in this account of local government to pay some
attention to judicial administration in the local dis-
tricts. The degree of centralization and decentraliza-
tion in this field is an important factor in the relative
importance of local government in different states;
while the administrative officers of the courts are for
the most part elective county officers.
Thirteen states centralize the selection of judges
for courts of general jurisdiction. These include all
of the New England states, two in the Middle- Atlantic
group, and five in the South. In the four largest New
England states and in New Jersey, Delaware, Missis-
sippi and Florida, the governor makes nominations
subject to the approval of the council, the senate or
(in Connecticut) the legislature. In Rhode Island,
Vermont, Virginia, South Carolina and Georgia, the
legislature elects, a somewhat less centralized method,
as the tendency is to distribute the places among the
members of the legislature from different parts of the
state. In three of these states (Massachusetts, New
Hampshire and Rhode Island) the judges have a life
1 Baldwin, ' ' The American Judiciary. ' '
95
LOCAL GOVERNMENT
tenure; in the others they are chosen for a term of
years.
In the other thirty-two states all judges are elected
by popular vote for definite terms, usually from six
to twelve years, but in three states for longer periods. 1
As a general rule the judges for courts of general
jurisdiction are chosen for a district including several
counties; and are usually called circuit or district
judges. 2 Thus Illinois with 102 counties is divided
into 18 judicial circuits, Wisconsin with 70 counties
has 17 circuits, and Michigan with 85 counties has 38
circuits. Often, however, the largest county in the
state constitutes a judicial district, and the judges
are elected in the same way as county officers. Thus
New York county, although only part of New York
City, is one of the eight districts into which the State
of New York is divided for the election of supreme
court judges. Cook county forms one of the judicial
circuits in Illinois, and the City and County of St.
Louis one of the circuits in Missouri. In Ohio five
counties, and in Pennsylvania 42 of the 57 counties,
are districts for the election of common pleas judges.
In Michigan fourteen counties are districts for the
election of circuit judges. In such cases, too, there
are often a number of judges elected for the county,
while in general there is only one judge for each dis-
trict.
Although elected in districts and usually holding
court within the districts, judges of, circuit, superior
1 New York, 14 years, Maryland, 15 years, and Pennsylvania,
21 years.
3 The latter term in states west of the Mississippi Eiver.
96
JUSTICE AND POLICE
and district courts are always considered as state offi-
cers, and may exercise jurisdiction in any part of the
state. Not infrequently when a judge is personally
interested in a case to come before his court, a judge
from another district will be called in to try the case.
And in the populous counties, even with a number of
judges, the courts sometimes become overcrowded, and
judges from the country districts are designated to
relieve the crowded calendars.
Whatever the district in which judges are chosen,
courts are held in each organized county, and as a rule
the county is the smallest district for which judges
with general jurisdiction are chosen. In large cities,
however, special municipal courts are established with
an enumerated jurisdiction, which sometimes is prac-
tically as extensive as the circuit courts.
In about a third of the states local courts are estab-
lished in each county, usually in addition to the courts
of general jurisdiction just noted ; and in other states
county courts are established in some counties. The
states having such courts do not fall into any geo-
graphical or population group, but include both large
and small states scattered throughout the country.
The jurisdiction of these county courts varies a great
deal. In California they are the superior courts of
general original jurisdiction; and in Pennsylvania
the common pleas judges, who are for the most part
elected in single counties, have a similar jurisdiction.
More usually the jurisdiction is limited. In New
York, county courts may try civil cases where not
over $2,000 is involved, and must try all criminal cases
arising in the county, except murder. In Illinois the
97
LOCAL GOVERNMENT
county judges have original jurisdiction in tax, assess-
ment and inheritance cases, and appellate jurisdiction
over the justices of the peace.
County courts in some states have more than judi-
cial functions, while in other states the non- judicial
duties are their only functions and they are courts
only in name. In Kentucky and Tennessee the county
court has administrative as well as judicial functions,
as was general in the Southern states in former times.
In three widely separated states, Georgia, Arkansas
and Oregon, the county court or judge has probate
jurisdiction and administrative powers, but no juris-
diction in civil and criminal cases. In most of the
Wisconsin counties and in North Dakota the county
judge has jurisdiction only in probate matters ; and in
West Virginia and Missouri the county court is a pure-
ly administrative body, and has no judicial functions.
In a few states where there is no general system of
county courts, provision is made for one or more court
commissioners in each county. These act as deputy
judges in matters which can be acted on out of court.
Such officers are found in Michigan, Wisconsin, Min-
nesota, Wyoming and Washington.
In two of the New England states the counties are
divided into judicial districts, each with a district
court. Massachusetts with fourteen counties has
forty-four of these districts; and Rhode Island with
four counties has twelve judicial districts.
To summarize, it may be said that, outside of New
England and a few other states, the selection of judges
is decentralized in local districts. To a considerable
extent the county is a district for such elections, but
98
JUSTICE AND POLICE
in less densely populated regions a larger district is
often used. In any case the administration of justice
is decentralized to the extent of being carried on in the
counties. But judicial administration differs from
most other county administration in that it is subject
to a recognized superior authority, the Supreme
Court or Court of Appeals. Through the system of
appeals the decisions of the lower courts are brought
into harmony with each other, and general rules of
law are established for each state.
Probate administration is somewhat more decentralized
than the ordinary civil and criminal jurisdiction. In
most states the settlement of estates is a county func-
tion. Where a regular system of county courts has
been established, they are usually invested with this
authority; and, as has been noted, in some cases the
probate administration is their only function of a
judicial nature. In most other states special probate
courts have been established in each county, some-
times in addition to the county courts, as in New
York, New Jersey and the larger Illinois counties.
Usually these are known as courts of probate and the
judges as probate judges. But in New York and New
Jersey the probate judges are called surrogates; in
Pennsylvania, Delaware and Maryland probate courts
are known as orphans ' courts ; and in Georgia there has
been revived the title of ordinary, taken from the
judge of the old English ecclesiastical courts.
In some of the New England states probate juris-
diction is exercised in districts smaller than a county.
In Vermont six counties are each divided into two
99
LOCAL GOVERNMENT
probate districts. In Connecticut there are over a hun-
dred probate judges, each with jurisdiction in a
small district containing one or more towns. And in
Rhode Island each town is a probate district. On the
other hand in some of the Southern and Western
states probate jurisdiction is vested in the judges
elected in districts embracing a number of counties.
In some of these states commissicfaers may be appointed
in the counties to act in probate matters. -
Special probate judges are nearly always elected by
popular vote, even where other methods of selection
are used for judges in the regular courts. Thus
county probate judges in Maine, and probate judges
for smaller districts in Connecticut, are elected. But
in Massachusetts, judges of probate, like all other
judges in that state, are appointed by the governor and
council.
In some states there has been established the office
of public administrator, to take charge of the estates
of persons without known relatives or friends. In
Missouri, California and Montana this is an elective
county office. In Alabama and Tennessee the incum-
bent is appointed by the probate judge or county court.
And in some other Southern states the sheriff acts
ex officio in this capacity.
PROSECUTING ATTORNEYS x
An important officer in the higher courts throughout
the United States is the official attorney who conducts
1 "American Law Review," 17:529.
100
JUSTICE AND POLICE
criminal prosecutions and represents the public author-
ities in civil suits. In most states he is an elective
county officer, but in some he is chosen for judicial
districts larger than a county. He is variously desig-
nated in the different states as prosecuting attorney, 1
state's attorney 2 district attorney, 3 county attorney 4
or solicitor ; 5 and each title is used in widely separated
states.
This office marks a striking development in Ameri-
can criminal procedure in contrast to the English com-
mon law, at which criminal prosecutions were insti-
tuted and carried on by private persons. But, at the
same time, it is an expansion of the old English office
of attorney-general, who conducted suits in the courts
on behalf of the central government. Each of the
colonies had an attorney-general ; and beginning with
Connecticut in the early part of the eighteenth cen-
tury there were established local assistants to these offi-
cers, from whom have developed the present officials.
North Carolina was one of the first to follow Connec-
a Ohio, Indiana, Michigan, Missouri, Arkansas, "West Virginia,
Wyoming, Idaho and Washington. In New Jersey, his title is
prosecutor of the pleas.
2 Vermont, Connecticut, Illinois, North and South Dakota,
Maryland and Florida. In Virginia and Kentucky, attorney
for the commonwealth.
8 Massachusetts, New York, Pennsylvania, Wisconsin, Missis-
sippi, Louisiana, Colorado, New Mexico, Arizona, California and
Oregon.
4 Maine, Minnesota, Iowa, Nebraska, Kansas, Oklahoma,
Texas, Utah and Montana.
5 New Hampshire, South Carolina, Georgia, Florida and Ala-
bama. Pennsylvania has county solicitors for civil suits in ad-
dition to district attorneys.
101
LOCAL GOVERNMENT
ticut. In New York assistant attorneys-general were
established in 1796, and the system of local public
prosecuting officers has long been firmly established
in all of the states.
While the jurisdiction of these officers is generally
confined to single counties, in a number of states it ex-
tends to judicial districts which are usually of larger
size. Most of these are in the South, North and
South Carolina, Georgia, Florida, Tennessee, Alabama,
Mississippi and Arkansas, but the same system is
followed in Massachusetts (for some cases), Colorado,
New Mexico and Oregon. In a few of these states, too,
Georgia, Florida, Alabama and New Mexico, the
office is filled by the appointment of the governor, and
in Connecticut by appointment of the superior court
judges, while elsewhere it is an elective position.
In Maryland and Kentucky the state constitutions
require public prosecuting officers to be practising
attorneys at law, and in some other states this qualifi-
cation has been established by statute, or is held by
the courts to be involved in the nature of the office. 1
But in other states the courts have held that such a
requirement is not essential, and even that the legis-
lature has no power to add to the qualifications pre-
scribed in the constitution. 2 Whatever the law, it is
certainly necessary for the competent discharge of the
duties of the office that the incumbent should have a
legal training.
These official attorneys are paid sometimes by fees
1 People v. May, 3 Mich., 598; People v. Hallet, 1 Colo., 358.
2 People v. Dorsey, 32 Cal., 302; State v. Clough, 23 Minn.,
17 ; Howard v. Burns, 14 S. Dak., 283.
102
JUSTICE AND POLICE
and sometimes a fixed salary. In some cases their fees
depend on the cases in which they secure convictions.
This is an incentive to vigorous prosecutions, but one
which may sometimes be carried too far, and lead
to the conviction of innocent persons.
Most important among the duties of these officers
are those connected with criminal prosecutions. They
must decide whether or not to commence a prosecution.
There are cases of technical violations of law where no
public interest would be served by pressing the charge ;
and there are many criminal cases where the evidence
is clearly insufficient to secure conviction. Under such
circumstances the prosecuting officer should not insti-
tute proceedings. On the other hand, they have no
power to make an agreement not to prosecute a par-
ticular person, and they are not justified in declining
to prosecute because they disapprove of the law, or
believe the accused should be pardoned.
In most of the states criminal prosecutions, except
for petty crimes, must be based on an indictment by
a grand jury. The prosecuting attorneys, however,
usually collect the evidence and prepare most of the
cases that come before grand juries, and give advice
which has much influence in determining what indict-
ments shall be brought. But they cannot compel the
bringing of an indictment, nor prevent a grand jury
from considering charges by declaring that the govern-
ment will not prosecute.
Some of the North-Central states 1 have dispensed
with grand juries in ordinary cases ; and in these the
influence and importance of the prosecuting attorneys
1 Michigan, Wisconsin and Minnesota.
103
LOCAL GOVERNMENT
are greatly increased. Criminal trials are begun on
what is called an information, presented by the prose-
cuting attorney ; and it thus rests with him alone to
determine whether any particular case shall be
brought to trial.
Formerly public prosecutors could discontinue a
criminal trial, by entering a nolle prosequi, 1 a step
which does not prevent subsequent prosecution on the
same charge. In some states this rule is still followed,
but in others this action can be taken only with the
approval of the court. 2
In the conduct of a prosecution the attorney for the
public is not supposed to act as counsel for those who
bring complaints against a prisoner; but as a public
official aiding in the administration of justice. He
should treat the prisoner with judicial fairness. "The
prosecuting officer represents the public interest, which
can never be promoted by the conviction of the inno-
cent. His object, like that of the court, should be sim-
ply justice ; and he has no right to sacrifice this to any
pride of professional success." 3
Criminal prosecutions are brought in the name of
the state, and the prosecuting attorney in such cases
is acting as agent of the state, rather than as a local
officer. At the same time the most direct results of his
activity are in relation to the people of the community.
He can prevent malicious prosecutions, and bring
promptly to punishment those who violate the criminal
law. Or, if he is negligent and inefficient, the guilty
1 A declaration that he will no further prosecute the particular
indictment. Abbreviated nol. pros.
2 State v. Moise, 48 La. Ann., 109.
3 Hurd v. People, 25 Mich., 405.
104
JUSTICE AND POLICE
may escape and innocent parties may be put to serious
annoyance.
The criminal jurisdiction of the prosecuting attor-
ney extends to public officials as well as to private
individuals. 1 These officials are not only subject to
the ordinary criminal law, but misconduct in connec-
tion with their official duties often subjects them to
criminal penalties. The effectiveness of this judicial
control over public officers depends very largely on the
activity of the prosecuting attorneys. And the fre-
quent charges of corruption on the part of municipal
and other local officials have made this side of the
prosecutors' duties of special importance. Unfortu-
nately in many cases the close political relations of
prosecuting attorneys to accused officials have led them
to ignore or neglect such cases. In other cases vigor-
ous action in prosecuting cases of this kind has
redounded to their credit. It may be noted that in the
states where grand juries are not used in ordinary
criminal cases, they are usually summoned to present
indictments against public officials.
In addition to criminal cases these public attorneys
also act in civil matters. As attorneys for the state,
they may be called on to represent the state in any
civil suit to which it is a party, and, at least in the
states where they are elective county officers, they
represent in the same way their counties or other
county officers in civil suits, and also act as their legal
advisers. In such civil suits the prosecuting attorney
may appear on either side of a case.
^oodnow, "Administrative Law of the United States,' ' 298,
411.
105
LOCAL GOVERNMENT
Of recent years the importance of this office has
come to be more fully recognized in the larger com-
munities, and effective service has brought the officers
into political prominence. Governors Deneen of Illi-
nois and Folk of Missouri were elected on their records
as prosecuting attorneys in Cook county and St.
Louis, respectively. Mayor Weaver of Philadelphia
was formerly district attorney, and District Attorney
Jerome of New York is known through the length and
breadth of the land.
In rural counties the office is apt to go to a young
attorney of little experience. The work to be done is
less burdensome, and certain forms of opposition to the
faithful performance of the duties are less active. Yet
even in these districts there is need for honest and
efficient officials.
THE SHERIFF x
Every county has a sheriff; and the office may be
called the constituent office of the county. "Without
a sheriff there is no shire. ' " He is defined as a county
officer representing the executive power of the state
within his county. 3 More specifically he is the chief
conservator of the peace and chief executive agent
of the judicial courts for his county, while some traces
of his fiscal powers remain with other duties varying
to some extent in the different states. The position
1 ' American Jurist, "2:1;" Albany Law Journal, " 8 : 398 ;
22:146; "Central Law Journal," 10:81; "Edinburgh Ee-
view," 13:170; "Century," 14:39.
2 Howard, ' ' Local Constitutional History, ' ' 455.
3 Bouvier, * ' Law Dictionary. ' '
106
JUSTICE AND POLICE
has lost much of the dignity and importance of the all-
powerful Norman sheriff, and is of less significance in
the United States than in England at the present
time, but is nevertheless one of the principal county
offices.
With the exception of a single state sheriffs in this
country are elected by direct popular vote in each
county. In Rhode Island they are chosen annually by
the general assembly of the state. The prevailing term
of service is two years; in a few states it is three
years; 1 and in a few others four years. 2 In many
states re-election is restricted. In Maryland, Dela-
ware, West Virginia and Missouri, no sheriff may be
re-elected for two terms in succession ; in Michigan a
sheriff can serve for only two successive terms; and
in Tennessee no person may act as sheriff for more
than six years in any period of eight years.
In England a sheriff must be a landed proprietor,
and this requirement establishes his responsibility
for damage suits in connection with his ministerial
functions. But in the United States the only qualifi-
cations required are of citizenship, adult age and resi-
dence in the county. As a substitute for the security
of the landed estates in England, the American sheriff
is required to furnish bonds for the faithful discharge
of the duties of the office.
Every sheriff is assisted by a number of deputy
sheriffs. They are appointed by the sheriff and act
under his control. Deputy sheriffs may perform any
1 Massachusetts, New York, New Jersey and Pennsylvania.
2 Connecticut, Illinois, Virginia, West Virginia, Kentucky,
South Carolina, Alabama, Mississippi and Florida.
107
LOCAL GOVERNMENT
ministerial act within the powers of the sheriff; and
the latter, as a general rule, is held personally liable
for the errors and mistakes of his deputies.
At the common law there was no compensation
allowed to sheriffs. But statutes now authorize the
payment either of fees or a fixed salary to the sheriff
and his deputies. Under either system the office is
among the best paid of the county posts; and where
the fee system is retained in counties with a large
city the net compensation is often excessive. In New
York county the position is said to yield $50,000 a
year. In Cuyahoga county, Ohio, the sheriff receives
$15,000 a year. In other Ohio counties under the fee
system the total income of the sheriffs ranged from