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than nine in a thousand took an appeal; of these, less than a third were successful.' But the cases that attract public notice because of their sensationalism are generally the ones in which delays incident to appeals occur. In a good many instances in which verdicts have been reversed, obvious injustice had been done to the appellant. This is particularly true where evidence offered in his defence has been wrongfully excluded by the trial judge, where the prosecution has failed to make out a prima facie case and show facts sufficient to constitute the offence, and where the trial judge has made a serious mistake in his charge to the jury. Nevertheless, in a considerable number of reversals, the errors are purely technical and do not involve at all principles of strict justice.

The remedy, however, does not consist in a narrow limitation of the system of appeals. If the prisoner has no absolute right to appeal, there will be cases of wrongs committed at the trial which will never be righted. But the appellate courts should adopt the practice of refusing to reverse a verdict if the errors complained of are not of such a nature as could have prejudiced the defendant in the eyes of the jury. Finally, a good many of the delays and technicalities of legal procedure will be avoided if at the trial the judge exercises a greater amount of control over the proceedings, as is done in England, and to a less extent in the federal courts."

Harvard Law Review, Vol. XVII.

2 Taft, Four Aspects of Civic Duty, p. 50.

CHAPTER XXVII

THE ORGANIZATION OF MUNICIPAL GOVERNMENT

MR. BRYCE, in his chapter on the working of American city governments, remarks that "there is no denying that the government of cities is the one conspicuous failure of the United States." If we accept this statement even without qualification, we must remember the special difficulties which are associated with municipal government in the United States. In the first place, our cities are of recent and rapid development, and are intimately involved with the remarkable and heedless advance of industry and commerce which accompanied the opening up of the country. When Washington was inaugurated, only about one-thirtieth of the population lived in cities of over 8000, and in a little more than a hundred years one-third of the inhabitants have become city dwellers.

It must be remembered, also, that a great portion of the city dwellers are collected from all the nationalities of the globe. The census of cities of 25,000 inhabitants and over, in 1900, showed that no less than 26 per cent were of foreign birth, to say nothing of those who were of immediate foreign descent. In New York City, the percentage of foreign-born was 37; in Chicago it was 34.6; in Lawrence, Massachusetts, 45.7; and in Woonsocket, Rhode Island, it reached 44.4. To this alien group must be added the negroes, who, while numerically insignificant in many northern cities, constitute a large portion of most southern cities 56.5 per cent in Charleston, South Carolina. To the cities have been attracted also large numbers of the shrewd and ambitious inhabitants of the country districts largely in pursuit of economic gain.

1 In spite of these astounding figures it must also be noted that the percentage of aliens is really declining in our cities. See Goodnow, Municipal Government, pp. 25 ff.

Thus our cities are really vast conglomerations, composed of peoples of every nationality, and of the keenest and most enterprising natives; their populations are constantly shifting, besides being augmented by the inflow of foreigners. They are largely without civic traditions; their governments offer unparalleled opportunities for spoils and private gain to the politicians and sharp hunters of franchises and special privileges; and it is small wonder, therefore, that up to the present time the problem of American municipal government has not been solved to the satisfaction of any one.

The City and the State

Before taking up the study of the structure of municipal government in the United States, it is necessary to consider the position of the city as a local unit in the government of the state. The American city, in all except a very few commonwealths,' is largely subject to the state legislature, which creates its charter in the first place, establishes its form of government, fixes its powers, and from time to time imposes new institutions on top of those created under the charter. Thus the city lies completely at the mercy of the legislature, save where protected by constitutional provisions, and thus municipal affairs are drawn inevitably into the current of state politics. This situation has raised the vexatious question of municipal "home rule." 2

It is urged by the champions of municipal home rule — practical autonomy for each city — that the state legislature is unfitted to exercise control over many questions which affect only urban dwellers because it does not have the requisite time to look into the details of city government or the requisite knowledge of the problems of such government, and does not feel the proper responsibility to urban constituencies. Owing to the constitutional discrimination against cities in favor of the rural districts," the representatives of rural minorities are able to impose upon the cities laws and institutions wholly unsuited to urban conditions. In the next place, it is contended by the advocates of ho ne rule that there are a number of purely city problems which cannot have any

1 Below, p. 583.

See Goodnow, Municipal Home Rule, and Deming, The Government of American Cities. 3 Above, p. 520.

considerable interest for the people of the state at large. They say, for example, that the paving and lighting of the streets, the provision of means of transportation, the establishment of waterworks, the maintenance of markets, and many other similar matters, should be left entirely to the determination of the municipal voters.

To these contentions the reply is made that there are few, if any, purely municipal functions which have no general interest for the state at large. If the city wishes to establish waterworks, it must go sometimes, as New York City has gone, a hundred miles or more into the country, and must, therefore, secure watersheds by a state concession. With the growth of the means of rapid communication, our city populations have spread far beyond the boundaries of municipalities, and the system of municipal transportation accordingly covers far more than the areas under city government. A notable example of this is New York City, which is really the urban centre for a vast area extending fifty miles or more in every direction. Owing to the large number of voters in the municipalities, the integrity of the whole state election may depend upon the effectiveness with which the municipal police uphold the election laws and secure an honest count. Finally, the tenements, industries, health, and progress of each city are inextricably woven with larger state and even national problems of the land, taxation, natural resources, labor legislalation, and social control. Speaking generally, therefore, the state at large has a fundamental interest in the health and wellbeing of the city dwellers, and accordingly there is hardly a problem of municipal government that is not vitally connected with the larger problems of state government.

Indeed, Professor Goodnow has shown, by a survey of the historical development of cities, that the whole tendency of modern ti nes is away from that autonomy enjoyed by cities in the Middle Ages. He points out that matters which were once of purely local interest have now become general; that in modern life commerce and industry have become state concerns; and that it is impossible to determine arbitrarily the point at which state interest ends and municipal interest begins. He cites the example of Massachusetts, where the competition of many cities for sources

Readings, p. 509.

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of water-supply became so keen that the state had to interfere and assume general control. He also shows that what may be a municipal function in one city may not be in another, citing, as an example of this, Chicago and New York-in the disposal of sewage Chicago uses one of the rivers which flows through the state, and thus the sewage question becomes a matter of state concern; while New York is differently situated in this regard, owing to the fact that it can discharge its sewage into the ocean. Professor Goodnow concludes: "Municipal home rule, unless those words are used in a very limited sense, has no just foundation in either history or theory until the conditions of city populations are very different from what they are at present. Municipal home rule without limitation is a shibboleth of days that are past. On account of the reverence in which it is held, it is often used by those who have not the true interests of urban populations at heart, or by those who, while possessing good intentions, perhaps are not sufficiently acquainted with the conditions to which they would apply it, and certainly do not consider the problem in the light of the history of western municipal development.'

"1

It is clear, therefore, that the limits of municipal government cannot be fixed for any state or any city by a general rule of law; but it is also clear, in the light of great abuses which cities have suffered at the hands of our state legislatures, that some check must be placed upon the power of the legislature to control municipal affairs. Several plans have been devised to meet this difficult problem.

1. The constitutional convention of Pennsylvania, in 1873, sought to solve the problem by adopting the rule that the state Legislature should not pass any local or special laws regulating the affairs of counties, cities, townships, wards, boroughs, or school districts; but this restriction was found to be entirely too narrow, and when the general assembly sought to legislate for the city of Philadelphia alone by passing a law which should apply to all cities having a population of at least 300,000, the court pronounced this action constitutional. The court held that it could not have been the intention of the framers of the constitution to bolt and rivet down, by fundamental law, the machinery of state government in such a way that it could not perform its necessary func

Municipal Government, p. 94.

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