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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.
tions. "If the classification of cities," said the court, "is in violation of the constitution, it follows of necessity that Philadelphia, as a city of the first class, must be denied the legislation necessary to its present prosperity and future development, or that the small inland cities must be burdened with legislation wholly unsuited to their needs. For if the constitution means what the complainants aver that it does, Philadelphia can have no legislation that is not common to all other cities of the state. . . . We have but to glance at this legislation [relating to quarantine, pilotage, trade, inspection, etc.] to see that most of it is wholly unsuited to small inland cities and that to inflict it upon them would be little short of a calamity. Must the city of Scranton, over a hundred miles from tide-water, with a stream hardly large enough to float a bateau, be subjected to quarantine regulations and have its lazaretto? Must the legislation for a great commercial and manufacturing city with a population of more than a million be regulated by the wants or necessities of an inland city of 10,000 inhabitants?"
2. Recognizing the necessity for putting limits to the power of the state legislature to control cities and at the same time recognizing the imperative necessity for special legislation, New York has sought to give the cities a voice in legislating upon the matters especially affecting them. This has been done by a classification of the cities of the state into three groups according to their populations and by providing that special laws—that is, those relating to a single city or less than all the cities of a class — must be passed in conformity to the following principles: When any such special law is passed, it must be transmitted to the mayor of the city affected. In cities of the first class (of over 175,000 inhabitants) it must have the approval of the mayor, and in cities of the other two classes the approval of the mayor and city council, before it can become a law. If the bill is accepted by the proper municipal authority, it is transmitted to the governor of the state, who may veto it or approve it, as he sees fit. If the bill is not approved by the local authorities, it is transmitted to the branch of the legislature in which it originated, and may become a law if it is repassed (at that session) by the ordinary majority in both branches.
1 See Readings, p. 512, on this important topic.
This constitutional provision is further elaborated by a statute which provides that when any such law is transmitted to a city, the authority which has the right of approval or rejection must hold a public hearing on the measure, after having given due notice by publication in newspapers. The design of this is to afford to the friends and opponents of the measure a right to state their reasons for its approval or rejection. This method, while it does not vest the right of final decision in the city, does guard against hasty legislation, assures publicity, and gives to the authorities of the city some weight in determining the course of state legislation. Nevertheless it does not cure the evils of special legislation.
3. A third method of controlling the state legislature was provided by the Missouri constitution of 1875, which gives each city having a population of more than 100,000 inhabitants the right to frame a charter for its own government consistent with and subject to the constitution and laws of the state. It stipulates that such a charter shall be drafted by a board of thirteen freeholders elected by the qualified voters of the city, then submitted to the approval of the voters, and go into effect on receiving foursevenths of the votes cast at the general or special election at which it may be submitted. It is provided further that all such charters shall include in the plan of government a mayor and a council of two houses, one at least elected on a general ticket.1 This plan, with some modifications, has been adopted by California, Oregon, Washington, Minnesota, Colorado, Oklahoma, and Michigan. "Probably this is the most effective method of protecting cities against legislative interference," says Professor Goodnow. "In their interpretation of these constitutional provisions, however, . . . the courts hold that the privilege of framing its own charter of local government does not affect the functions of government which, while discharged in the city, interest the state as a whole. A provision of this sort does not, therefore, prevent the state from interfering with the police force or the educational system of cities, since these branches of administration are regarded as state rather than local in character." 3 The California constitution, however, places the control of
1 There are also some special provisions for the city of St. Louis.
2 See Readings, p. 511, for the provisions of the California constitution on this point.
› Municipal Government, p. 84.
police, police courts, education, and elections within the competence of the city charter-making powers. Since this amendment was adopted as a check upon legislative interference in those matters it is to be assumed that the legislature is excluded from those fields if the city sees fit to preëmpt them.
4. Among the constitutional methods devised for checking state legislatures and at the same time permitting desirable special legislation for cities, that embodied in an amendment to the Illinois constitution, adopted in 1904, is important because it has proved effective. That constitution has the usual provision against the incorporation or organization of cities, towns, or villages, or changing or amending their charters by local or special law. To permit the legislature to give Chicago special treatment the constitution was amended in 1904 so as to permit the legislature to pass "all laws which it may deem requisite to effectually provide a complete system of local municipal government in and for the City of Chicago." However, it placed a check upon this power of special legislation for Chicago by providing that no such law can take effect until approved by a majority of the legal voters of the city voting thereon at any general, special, or municipal election. Under this provision the people of Chicago rejected a special charter passed by the legislature and submitted in 1907. This charter was, in the main, the work of a commission of Chicago citizens appointed for that purpose, but it was made obnoxious when it reached the legislature by the insertion of several objectionable features. This legislative action caused the rejection of the charter when submitted to the people. So far as one can judge, these constitutional provisions enable the people of Chicago to escape objectionable special legislation, while the way is left open for special legislation acceptable to them. They may not be able to get what they want, but they can at least escape improper legislation unless it is embodied in general laws.1
The City Council 2
Turning now from the position of the city in the state to the organization of municipal government, we are confronted by a be
1 For this statement I am indebted to Professor A. R. Hatton.
wildering variety of institutions that seem to defy all attempts at classification or orderly treatment; but certain general features may be drawn out by the comparative process.
Every city has a legislative body of some form and endowed with some powers of local government. In the beginning of our history, the city council, following the old English plan, was a unicameral body with two classes of members, common councillors and aldermen;' but after the Revolution many states began to model their city governments on the plan of the commonwealth governments by providing a council of two chambers, and indeed nearly all of our important cities have had at one time or another double-chambered councils. They did not prove to be very efficient or successful legislative bodies, however, and the plan has been slowly abandoned in favor of the single-chambered council, so that to-day a large majority of our great cities, including New York, Chicago, Cleveland, San Francisco, Cincinnati, Minneapolis, Boston, New Orleans, and Indianapolis have councils composed of only one house. Several important cities, however, including Philadelphia, St. Louis, Buffalo, Baltimore, and Louisville have retained the double-chambered council.2
The terms of city councillors range from one year to four years, but are more commonly fixed at two years, as in the city of New York. As a rule, members of the city council are elected by the district ticket; that is, the city is divided into districts or wards, and one representative is returned from each. The number of councillors varies greatly. New York has 79, including the president of the board and the five borough presidents. San Francisco has 18 (elected at large); Philadelphia, 190 in both houses; Chicago, 70; and Boston, 9 (elected at large).
Many objections have been brought against the district system, on the ground that the districts are arbitrary divisions, that there is not the same need for local representation in cities which occurs in the state at large, and, furthermore, that the district system does not make any provision for securing the representation of minorities. One of the most notable examples of the way in which the district system may exclude a powerful minority from all share in the city government is the New York election of 1 Above, p. 14.
*New York, St. Louis, and Baltimore are now engaged in charter revision. 3 Sometimes more than one.