HOME RULE FOR CITIES1

HOWARD LEE MCBAIN

Associate Professor of Municipal Science and Administration, Columbia University

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HE brief in the long-standing case of the People of the City v. The Legislature of the State of New York has, during the last fifty years, been repeatedly filed and argued at the bar of public opinion in this state. It was first formally filed in behalf of the cities of the entire state by members of the ill-fated convention of 1867-8. It was re-filed in like behalf before the constitutional commission of 1873; again by the Evarts commission in 1877; again by the Fassett committee in 1891; and once again in the convention of 1894. It has found expression in numerous messages and vetoes of successive governors. And this is not to mention the countless recorded pleas and protests that have gone up from the corporate authorities and civic organizations of specific cities all over the state. In the case of New York city such protests have been registered, with a regularity as persistent as it has been futile, since the years preceding the Civil War when Jacob Westervelt, Fernando Wood, and Daniel Tieman were sitting in the chief executive office of the city.

In discussing the problem of home rule at this late day I take it that certain general propositions are so fairly established as to require little if any argument.

I take it, in the first place, that historical events have conclusively demonstrated the vanity of the hope that legislatures will, when subject to no specific constitutional restriction, always refrain from interfering with the affairs of cities for

1 Read at the meeting of the Academy of Political Science, November 20, 1914.

'Argument was made in the convention of 1846 in favor of general legislation for cities, but it was clearly advanced in the interest of property owners rather than in the interest of cities as such.

political or sinister purposes; or that they will, even in the absence of ulterior motives, give sufficient attention to special laws relating to the government of cities to accomplish an end that is highly to be desired, namely, that city governments should be founded upon some understandable principle of political organization, and once founded upon such principle, should not be subjected to fragmentary additions and alterations that take no account of the original design of the structure. In laying this down as a proposition that requires little to be said in its support, I am not unaware that the record of the average modern legislature, even in the states which impose no constitutional limitations upon its power over cities or which, as in this state, impose only slight limitations in that regard, stands in strikingly virtuous contrast with that of the average legislature of the two generations next behind us. The widespread agitation in this country against the outrages committed by legislatures upon cities could not have failed to produce some moral effect. It is certain that a more wholesome attitude of mind is now to be found in legislative halls; and in counting achievements, it matters not whether this attitude may be rightly attributed to conscience and increase of knowledge or simply to the fear of political consequences. Such legislative liberality, for example, as that which found expression in the so-called "home-rule" law enacted in this state in 1913 or in the optional-charter law which was passed in the spring of this year would have been well-nigh unthinkable in the state of New York not many years ago. But however grateful we may be for this comparative change of heart on the part of our legislatures, we must not be unmindful of the fact that the cities of New York are for the most part to-day governed under a veritable chaos of general and special laws that cannot but make for uncertainty and conflict of jurisdiction and impose serious handicaps in the conduct of the people's business. The charter of New York, in spite of its many admirable features, is as to its bulk and sublime disarray a statutory atrocity. Even in cities of the second class-Albany, Troy, Schenectady, Syracuse, Utica, and Yonkers-which is the only class of cities in the state under a uniform charter, it is a fact

that the government of these cities is determined in considerable part by the unsuperseded provisions of earlier charters and by special acts enacted since 1894, which are not applicable to all the cities of this class.

I take it to be settled, in the second place, that the problem of the city's relation to the state legislature cannot be solved to the satisfaction of the city by constitutional provisions which seek merely to outlaw certain specified acts of interference of the more flagrant variety. Something has unquestionably been accomplished by the introduction into certain state constitutions of clauses guaranteeing to the city the right to have its own officers locally elected or appointed, or the right to determine for itself matters relating to the vacating, opening or improvement of streets, or the laying of railway tracks in the streets, or the right not to have the legislature impose compulsory taxes for corporate purposes. But everyone knows the unhappy experience of the cities of New York under one of these specific guarantees. The constitution of 1846 specifically established the right of cities to elect or appoint city officers, but under the almost grotesque interpretation put by the courts upon this provision of the constitution, the government of the city of New York was, beginning in 1857, taken over in large part by the state itself, control being vested in a number of commissioners named in Albany. Most of the legislative practices that were sought to be outlawed in one or more states by specific provisions of this character have long since ceased to be a positive menace, even in those states which contain no such constitutional provisions. And, in a view of the matter, such provisions, aimed as they are at this or that particularly outrageous abuse, cannot furnish a complete solution of the difficult problem of the city's legal relation to the state. It would be impossible, as well as absurd, to cover the entire gamut of municipal grievances against the state legislature by a list of prohibitions directed at defined abuses.

I take it to be settled, in the third place, that the general prohibition upon special legislation for cities and the requirement that the legislature should provide for the government of cities under general laws has, speaking broadly, proved to

be a lamentable failure in the states which have adopted this policy. It has resulted in most states in the classification of cities for the purpose of legislation,' and under the usual judicial interpretation of the reasonableness of classification it has resulted in the continuation on a very extensive scale of special legislation in the specious guise of general laws. Thus, at the present time, there exist in the states which have abolished special legislation for cities at least nineteen instances of classification on the basis of population in which a single city finds itself to be the sole member of a so-called class.2 It has resulted also in the enactment of innumerable laws which have ignored even the general schemes of classification established by the legislature itself and have cloaked their true character under the thin veil of a special classification created solely for the purpose of a particular enactment. It has resulted in the passage of many laws which appear upon their face to be genuinely applicable to all the cities of a class, but which upon a knowledge of actual conditions could not, because of their subject-matter, relate to more than a single city. It has resulted in the enactment of innumerable optional laws -laws which were passed at the behest of perhaps only a single city and which were never intended for any other. With the exception of the state of Ohio from 1902 to 1913, it may be said that in no state of the Union, having important cities, has a prohibition upon special legislation for cities actu

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1 Classification is made by the constitution in Kentucky, Minnesota and New York. In a number of other states the right of the legislature to classify is recognized.

2 In the case of St. Louis and Kansas City, Missouri, and of San Francisco, Los Angeles and Oakland, California, this isolation of the city is of no great importance since each of these cities operates under a home-rule charter, but the government of the other fourteen cities is determined entirely by state laws. These are: Philadelphia, Pennsylvania; Milwaukee and Superior, Wisconsin; Indianapolis, Indiana; Louisville, Kentucky; Birmingham, Mobile, and Montgomery, Alabama; Omaha, Lincoln, and South Omaha, Nebraska; Salt Lake City, Utah; Charleston, South Carolina; and St. Joseph, Missouri.

This legislative practice, i. e., special classification for every law enacted, is no longer used so frequently as formerly.

In the general code of Illinois there is a considerable amount of special legislation that arises from classifications that are introduced.