Public Health

Practically the entire frame-work of public health agencies, state and local, has developed since the adoption of the last constitution. The present constitution may be examined with a microscope and no trace of the existence of such a subject as public health can be found. The extent to which the constitution should outline the frame-work of state administration is of course an open question. However, if it should seem wise to the convention to indicate in outline the frame-work of the more important administrative departments, certainly the department of health should not be overlooked. The educational chapter provides that the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated. Perhaps the time has come when the constitution should state that the legislature shall provide for a system of agencies, state and local, for the protection of the public health, the benefits of which shall be available for all the people of the state.

Flexibility

The ever recurring question in relation to constitutional provision is, what shall be put into the constitution and what shall be left to the legislature? This involves the question as to whether, on the whole, state administration tends to be too flexible or too inflexible. Things put into the constitution become inflexible. A close study of the operation of certain administrative agencies of the state for a period of over twenty years leads me to feel that the greater danger is that of inflexibility, inelasticity and tradition, rather than their opposites. Although the legislature at any time during the past twenty years could have reorganized the state commission in lunacy or the state board of charities, changing them from a paid to an unpaid body or from a small board to a large board, it has not done so in either case. Both these organs of government, in fact, have had a continuous history since their original establishment. In general, therefore, I should be inclined to say, whenever in doubt as to the wisdom of making a given matter permanent, leave it to the legislature.

THE CONSTITUTION AND PUBLIC FRANCHISES

N°

DELOS F. WILCOX

OTHING could make our paper constitutions and charters in America appear more futile-mere child's play -than to find in them sections or series of sections bravely prohibiting perpetual franchises and imposing whole pages of lucid restrictions upon franchise grants, when we know all the while that most of the actual franchises controlling the utilities in the commonwealth or the city for which the constitution or charter has been written have long since been bartered away in perpetuity and are in no respect subject to the restrictions imposed. So far as the framework of government is concerned, a new constitution or charter is effective in establishing the principles it declares. The old legislature, the old judiciary, the old counties, the old municipal departments, are superseded and displaced by the new, in so far as the constitution or charter calls for changes in the organization of government. But when we come to consider, not the forms of government, but its substantive acts, we find that a constitution drafted in 1915 is subordinate to a contract executed in 1914, or in 1814 for that matter. The result is that modern constitutions and charters, with their manifold and far-reaching provisions in regard to public utilities and public utility franchises, are often mere masks concealing rather than revealing the truth. In large measure they are theoretical and have no practical significance.

Where franchises are granted in perpetuity, a city does not have to be very old or very large before the power to control its public utilities through charter provisions or constitutional amendments applying only to the future is lost forever. Even in the case of street railways, where franchises are usually granted for specific streets rather than for all the streets within the limits of a given municipality, the early grants are almost uniformly on the down-town thoroughfares in the

strategic locations, with the result that they command the future development of transit facilities almost as much as if they covered all the streets of the municipality and were exclusive. Competition is a wholly inadequate remedy. Competition of street railways in the same streets, even though temporary, has long since been regarded as impracticable and intolerable except under extraordinary conditions. Competition in water supply and gas service, involving as it does the construction of duplicate systems of mains and the wanton tearing up of pavements and consequent interference with ordinary street traffic, is almost as unbearable as competition in street railways. In electric light and power and in telephone service, the disadvantages of competition from the standpoint of the street itself are serious, but not so forbidding under ordinary circumstances as in the case of the other utilities mentioned. From the standpoint of the public, however, competition in telephone service is theoretically intolerable, while in electric service it may have some immediate advantages.

Under the Dartmouth College decision, a private charter granted by a sovereign state becomes an inviolable contract, unless by specific reservation the grant is subject to amendment or repeal by the granting authority or its successors. In New York, where this reservation has been contained in the constitution for a great many years, the courts have distinguished between a corporation's charter and its special franchises, the latter being regarded in the nature of irrepealable grants of privileges, equivalent to the sale or gift of property, which, once made, is beyond recall by the city. This distribution, coupled with the ruling that a franchise or consent for the construction of public utility fixtures in the streets, unless specifically limited in the grant or in the laws under which the grant is made, is to be construed as being in perpetuity, has resulted in the intrenchment of public service corporations in the streets of New York so as to make their dislodgment extremely difficult.

The constitution makers have this practical situation to face. The principal streets, and in some cases all the streets, of the municipalities have been mortgaged in perpetuity to some or

all of the principal utilities, with the result that a prohibition of perpetual franchise grants written into the constitution in 1915 might remain there for a thousand years without having any direct effect upon the rights of the principal public service corporations operating in the cities now in existence, no matter how large those cities may become. Constitutions may come and constitutions may go, but Jake Sharp's Broadway franchise goes on forever, and the Eighth and Sixth Avenue purchase clauses have been abrogated for all time.

This situation is intolerable. To make a written constitution a lie is to make a mockery of our most fundamental political enactments. It not only violates the pride of self-respecting citizens of a free state, but it gives the state itself a false position in recorded history. But in addition to this sentimental and ethical reason, a constitutional provision that ignores the past and applies only to the future, that leaves the great body of public utilities unaffected and touches only the comparatively insignificant extensions and new experiments which need new franchises, creates a practical condition that defeats its own purpose. The streets of New York cannot remain permanently nine-tenths slave and one-tenth free. Short-term and indeterminate franchises do not mix with perpetual franchises. Restriction of future grants, while past grants remain unlimited, merely creates a deadlock in the development of the utilities and results in hardship to the public. It checks expansion by increasing the risk of new investments. It compels the slender outermost branches of the utility tree to carry heavier burdens than the strong trunk itself.

If perpetual franchises have proved to be contrary to public policy and a menace to the state, then the makers of the new constitution should not be satisfied to leave this menace as formidable and as threatening as ever, while at the same time depriving the people of the state of the slender advantages which may be claimed for the old system. Public utility corporations enjoying perpetual franchises will not accept partial re-locations advantageous both to the public and to themselves, if such re-locations involve the exchange of perpetual for limited rights. They will not permit the civic blacksmiths to

insert a twenty-five year link in a perpetual chain. They are very loth indeed to allow twenty-five year links to be welded onto the ends of their perpetual chain. As a result, a city, where the heart of its utility system has been constructed under perpetual franchises, finds that the enactment of stringent restrictions in regard to the grant of new franchises intensifies its distress. It is hard enough under any kind of a franchise to induce public utility corporations, operating for profit, to expand their lines as rapidly as the needs of the public demand. But when extensions and possible competing plants are made subject to stringent regulations not applying to the old lines having the cream of the business, then this reluctance is translated into violent and persistent refusal.

If restrictions are to be imposed upon future franchise grants, the only reasonable and safe policy for the state to adopt in its constitution is a policy looking toward the gradual extinguishment of all outstanding franchise rights and the substitution therefor of new grants under the restrictions considered proper for the future. Nothing is more absurd than the attempt to develop and operate a public utility under a multiplicity of conflicting franchises, and certainly the greatest absurdity of all is the attempt to leave undisturbed the perpetual franchises at the heart of the city and to develop the utility by piecing on short-term or indeterminate franchises. at the extremities. It is equally futile to attempt to dislodge an intrenched utility by the doubtful expedient of private competition, when the competitor, in addition to the normal disadvantages he would have to meet in breaking into a new field and building a plant under more difficult conditions than his older rival originally had to meet, is put to the disadvantage of having a less favorable franchise and a shorter lease. of life within which to recover his investment.

A constitution serves a double function. First, it organizes the government, adjusts conflicting political interests, and brings into action the constructive spirit of democracy. Second, it protects the future against exploitation by the present.

In the performance of the first of these functions, the constitution establishes the organs of state and local government,