the courts have been spared the necessity of resolving coherence out of incoherence.

From this inadequate review of the constitutional provisions upon this subject and of their history before the courts, it is obvious that there are grave difficulties to be encountered in the phrasing of a clause which will prevent the city from becoming completely independent of the state in those matters which the courts have held in many branches of the law of municipal corporations to be primarily of state-wide rather than of local concern and which many thoughtful persons believe should not be given over to the exclusive control and determination of cities. I cannot discuss here whether the state or the city, presuming that one attempts to occupy the particular field in its laws and the other in its charter, should have paramount authority in such matters as those pertaining to public education, to public health, to police and public safety, to the regulation of public utilities, to elections, to finance. Every one of these questions is a large and intricate question of public policy. Among students and statesmen there is no common agreement upon any one of them. The point that I wish to emphasize is that there must be agreement if we would have the metes and bounds of the right of home rule clearly defined. Most of the states have vaguely set these metes and bounds by declaring that locally made charters shall be subject to or in harmony with "general laws;" and such a restriction has been read into at least one constitution from which it was omitted. But, as we have seen, this indefinite phrase "general laws" has been given a variety of constructions, not one of which is wholly satisfactory. The phrases "municipal affairs" and "local self-government," as used in the California and Ohio constitutions, are not more precise on the other side.

I regret that it is impossible here to discuss the problem of how this difficulty might possibly in part at least be overcome. I do not know that it can be completely overcome. I have some notions as to how the problem should be approached at least, but it would unduly prolong this paper to set these forth even in brief outline. My purpose here has been to lay stress

upon the inherent difficulties that lie in the way of phrasing a satisfactory clause upon this subject. We cannot profitably discuss the solution of any problem until we have a clear understanding of its difficulties. I could not in the brief time allotted to me attempt both to explain the difficulties and to discuss the possible modes of meeting and conquering them. As between performing the function of an expositor of difficulties and constructive proposer I have elected to appear here in the former rôle; first, because proposition without exposition would be foolish, and second-I am frank to admit itbecause the rôle of the expositor of difficulties in such a matter is the far easier and simpler of the two.

On one point, however, I feel profound conviction. This difficulty of mapping out a safe yet full sphere of local autonomy is a real one. We have no right to close our eyes to obvious facts nor to ignore in our enthusiasm the lessons we can easily learn from the experience of other states. But if this problem is a difficult one, its solution is no more difficult, and is certainly far more appropriate, for a constitutional convention than for the courts of law. The courts already have a sufficiently onerous task in construing and applying the time-honored vague and elastic provisions of our fundamental law. We directly impose this duty upon them of making law and determining policy-a duty from which they cannot escape while we retain these undefined clauses in our constitutions. But we do not hesitate to criticize them with great severity and sometimes with acrimony when their views of economic and social policies do not happen to agree with our own. I should regret to see incorporated into the 1915 constitution of the state of New York a new indeterminate clausea clause granting a wholly unspecific measure of home rule to cities. I should regret it for the sake of the cities, who will be uncertain of their rights, and will, I feel certain, in this state, be drawn into an endless amount of litigation. I should regret it for the sake of the courts, who will be compelled against their will to give precise definition to terms which have no precision of meaning. I should regret it for the sake of the convention itself, for this would be a frank confession

of incapacity and a very unjust and unreasonable transference of obligation to be carried by the judicial branch of the government in the years ahead.

And yet I say this with due forethought-if the convention is unable or unwilling to face this problem with all that it involves, and attempt to give accuracy and definitive meaning to the right which they grant-if, in other words they can find no solution of the problem that does not entail the employment of indefinite terms which of necessity the courts must ultimately define and apply, I am nevertheless convinced that the right of home rule should be conferred. For I am fully persuaded that, even under such circumstances, the advantages far outweigh the disadvantages. We must recognize, however, that in doing so we are, to a considerable extent at least, merely transferring the power of negation upon cities from the legislature, where, it now lies, to the courts.

In conclusion, I beg to present very briefly my views on a few less important matters connected with the subject of drafting a constitutional provision extending home-rule powers:

1. I think that whatever provision is framed should be selfexecuting. It should not be within the power of the legislature to nullify the right conferred by failure to act or by surrounding the exercise of the right with provisions that render a working scheme difficult or impractical. The unhappy experience of Portland, Oregon (where the constitution merely confers a naked legal right), in her efforts to secure a charter through the agency of private civic associations at loggerheads with one another is a sufficient argument in favor of the fixing of an orderly procedure within the fundamental law.

2. I think that nothing can be gained by requiring, as in California, that the charter be submitted to the legislature for approval or rejection in toto, or, as in Oklahoma and Arizona by constitutional provision and in Michigan by law, that it be submitted to the governor with like power.

The net result of such provision in California, where legislative approval early became a thing of trite formality, was to introduce into judicial decisions a wholly unnecessary degree of chaos and confusion of utterance. It is obvious that

the governor cannot, will not, and should not be required to examine every charter and amendment to see that it is in harmony with the general laws of the state. Nor would his ratification be at all conclusive that such harmony actually existed.

3. I am convinced that the convention should be at special pains to examine all other provisions of the constitution with particular reference to the home-rule rights conferred. In more than one state other provisions, framed with no thought of or regard for the article conferring the charter-making power, have been raised to defeat its purpose in cases where a careful wording or the introduction of an exception would have saved the situation.

4. And finally, I would urge that, wholly within the article dealing with cities, it should be remembered in the phrasing of every section that in all probability some of the cities of the state will organize under charters of their own making and some will not. The effect of every word that is used should be weighed with reference to this possible and highly probable situation.

(300)

HOME RULE: A PROPOSAL FOR A REVISION OF THE MUNICIPAL ARTICLE OF THE

T

HE need of home rule for the cities of the state has been

amply demonstrated in the addresses delivered at the sessions of the Academy. The difficulties to be overcome in framing a constitutional grant of municipal home rule have been fully presented in Prof. McBain's paper with a wealth of material gathered from the experience of other states. It may be appropriate to consider the means of meeting those difficulties, which the Municipal Government Association of New York State has embodied in a proposed revision of the article of the state constitution relating to cities. This revision was prepared after three years' study of the subject and with reference to the experience of other states. It was presented to the legislature of 1914 in the form of a joint resolution amending the constitution, a copy of which is appended. It was endorsed by the New York State Conference of Mayors, the Citizens Union, the City Club and a number of authorities. on the subject; it passed the assembly and narrowly failed of passage in the senate. The amendment applies not only to cities, but also to villages and to counties wholly within a city.

The first difficulty-that of defining the extent of the powers granted to cities-is inherent in the nature of the subject. The advocates of home rule all agree that a city should have power over its own municipal affairs-but what are its own municipal affairs? That question is a practical political question, not one to be answered by a precise legal definition.

The impossibility of framing a complete definition of this subject was pointed out by the court of appeals of this state in

1 Discussion at the meeting of the Academy of Political Science, November 20,

1914.

2 Cf. infra, pp. 52 et seq.