The County: The "Dark Continent" of American Politics

by Henry S. Gilbertson

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.