IV. MUNICIPAL HOME RULE.

Legislative Home Rule: In contrast with the prevailing practice of detailed legislation on municipal government, there are a few instances where state legislatures have enacted measures providing in comprehensive terms that cities should have power to amend their charters or adopt new charters. Thus the Iowa Act of 1858 for the incorporation of cities and towns, passed after the prohibition of special legislation in that state, provides for the amendment of existing city or town special charters on petition of one-fourth of the voters, or submission by the local legislative body, and approved by a referendum of voters. This Act was upheld by the Supreme Court of Iowa, and is still part of the statute law of the state, though it does not appear to have been used very much. 1

Reference was made to this Iowa law in the Illinois Convention of 1869-70; but no similar act has been passed in this state. It may be noted, however, that it has been suggested, in a Supreme Court. opinion in Illinois that: "The legislature *** might provide a system by which municipalities should become incorporated, or for changing and amending existing charters, in the discretion and through the agency of those to be affected." 2

Laws somewhat similar to that of Iowa have been enacted more recently in a number of other states: Louisiana in 1896, South Carolina in 1899, Mississippi in 1900 and Florida and Connecticut in 1915. The Mississippi Act has been applied in several cases, and has been upheld by the Supreme Court of the State. *

3

1 Laws of Iowa, 1858, ch. 157; Code of 1897, S. 1047; Ex parte Pritz, 9 Iowa 222 (1870); Davis & Bro. v. Woolnough, 9 Iowa 104 (1859); Hetherington v. Bissel, 10 Iowa 145 (1859); Voss Phul v. Harmer, 29 Iowa 22 (1870). It may be noted that in the last of these cases, the original special charter of the city (Newton) contained a provision authorizing its own amendment, although this is not referred to in the judicial opinion.

People v. Cooper, 83 II. 585, 590.

3A Louisiana Act of 1896 provides that new charters may be adopted and promulgated by any city or town except New Orleans, on petition of a majority of the property owners and ratification by popular vote. No test of this act appears to have been made in the courts; and it may be doubted if it has been used.

Acts of the General Assembly 1896. p. 190; Revised Statutes, 1915, Secs. 4865-70.

In South Carolina a similar act for the amendment of town and city charters was passed in 1899, with a provision that the amendments adopted should be filed with the Secretary of State.

Acts of the General Assembly 1899, No. 42; Civil Code 1912, Sec. 2985. See Hill v. Abbeville 59 S. C. 407 (1901).

The Mississippi act of 1900 provides for the amendment of independent charters by the mayor and council on the approval of the governor and attorney general as consistent with the constitution and laws of the United States and the state constitution; but on protest by one-tenth of the electors, the amendments must be submitted to popular referendum. This act has been applied in several cases and has been upheld by the Supreme Court of Mis

The provisions of these laws are brief and crude, and do not attempt to solve the difficult.problems which arise as to the scope of municipal powers; while very little has been done under their authority. It is, of course, always possible for the legislature to repeal the act, or to override any locally adopted charter provision by subsequent legislation of its own.

Somewhat similar acts, passed in Michigan (in 1899) and Wisconsin (in 1911) have been held to be invalid, as an unconstitutional delegation of legislative power.5

A New York "home rule" law of 1913, granting an extended list of powers to all cities, enumerated in 23 articles, has been largely ineffective, first because of the doubt as to the legal capacity of the legislature to devolve so much power of local legislation, and second because of provisions in existing charters."

Constitutional Home Rule: Beginning with Missouri in 1875, thirteen states have adopted constitutional provisions authorizing cities (and in some cases also villages and counties) to frame and adopt their own charters of municipal government. These provisions have been frequently used; and an examination of this development and its operation will be of service in relation to the problem in Illinois.

In the Missouri Constitution of 1875, provisions were adopted authorizing any city of over 100,000 population to frame and adopt a charter, with special provisions for the city of St. Louis. Under these provisions, new charters were prepared and adopted by St. Louis in 1876 and by Kansas City in 1888; and revised charters were prepared and adopted by Kansas City in 1908, and by St. Louis in 1914.

sissippi, one case holding that under it a city having a special charter might adopt an amendment providing for the owning and operating of an electric railway and issuing bonds therefor.

Laws of Mississippi, 1900, ch. 69; Code of 1906, Sec. 3444: O'Flinn v. Mc. Innis, 80 Miss. 125 (31 So. 584) (1902); Yazoo City v. Lightcap, 82 Miss. 148 (33 So. 949) (1903). It was noted that the Mississippi Code of 1857 had provided that applicants for corporate charters (including municipal corporations) should prepare a charter, stating the powers to be exercised, and on approval by the Governor and Attorney General these powers should be vested in the corporation. Similar provisions had been continued in later laws and the Code of 1892. Adams v. Kuykendall, 83 Miss. 571 (35 So. 830) (1904); Love v. Holmes. 91 Miss. 535 (44 So. 835) (1907). "The Act of the Legislature has given municipalities operating under special charters the power to so amend their charters as to do anything they may wish, provided only that the amendment does not conflict with the enumerated laws."

In 1915 two other state legislatures passed acts of the same nature. A Florida act authorizes every city and town to change the provisions of its charter as to organization and powers of offices and boards, but not to enlarge its corporate powers, by means of an elected charter board and a popular referendum. A Connecticut act provides that any town governed under a special act, or any borough or city, may amend its charter, through a charter commission and a local referendum. Acts relating to local or police courts may not be amended in this way

Florida Acts and Resolutions 1915, ch. 6940 (No. 134); Connecticut Public Acts, 1915, ch. 317.

Elliott v. City of Detroit, 121 Mich. 611 (1899); State v. Thompson, 149 Wis. 488 (1912)

Seth Low in New York Constitutional Convention (1915) Revised Record IT, 1968.

Four years after the Missouri Constitution, a similar provision was adopted in the California Constitution of 1879; but San Francisco (the only city of over 100,000 population) did not adopt a new charter until 1898. In the meantime the population limit in the California Constitution was reduced in 1887 to 10,000 and in 1892 to 3,500; and, beginning with Los Angeles in 1889, more than thirty cities. have framed and adopted new charters. In 1911, a constitutional amendment was adopted in California authorizing counties to frame and adopt local charters; and this has been acted on by two counties. In 1889 the constitution for the new state of Washington included a provision authorizing cities of over 20,000 population to frame and adopt their own charters. Seattle and Tacoma adopted new charters under this plan in 1890; and these have since been followed by Spokane and Everett, all but one of the cities of over 20,000 population in the state.

The next state to adopt this method was Minnesota, where a constitutional amendment was ratified in 1896, authorizing any city or village to frame and adopt its charter. Within a few years new charters had been adopted by St. Paul and Duluth, and several smaller cities; and more than forty cities and villages have now adopted charters by this method.

In 1902, a constitutional amendment was adopted in Colorado, forming a consolidated City and County of Denver; and authorizing it, and also each city or town with 2,000 population, to make, amend and revise or replace its charter. Under this provisions Denver, Colorado Springs, Pueblo and several other cities have adopted new charters.

Thus far the movement for constitutional home rule had progressed but slowly; and of the five detached states where local charters were authorized only in two (California and Minnesota) had many cities acted under the provisions. But beginning in 1906, more rapid headway was made. Oregon adopted a home rule provision in 1906, Oklahoma in 1907, Michigan in 1908, four states (Arizona, Nebraska, Ohio and Texas) in 1912, and Maryland in 1915. In Oregon, Michigan and Ohio these provisions apply to all cities and villages; in Oklahoma to cities of more than 2,000 population; in Arizona to cities of over 3,500 population; in Texas to cities of over 5,000 population; and in Maryland only to the city of Baltimore and to counties.

Active use has been made of this authority in all of these states except Arizona and Nebraska. In each of the states of Oregon, Oklahoma, Michigan, Ohio and Texas, more than a score of cities and villages have adopted new charters; and other cities and villages (in Oregon, Michigan and Texas) have amended earlier legislative charters. Among the larger cities in these states with home rule charters are Cleveland, Cincinnati, Dayton, Detroit, Portland, (Oregon) and Baltimore.

Altogether more than 200 cities and villages in the United States. are now operating under home rule charters, framed and adopted

under constitutional provisions. These include fifteen of the thirty largest cities in the country.

A constitutional amendment authorizing home rule charters was submitted in Wisconsin in 1914, but failed of adoption. The proposed New York Constitution of 1915 contained a series of complicated provisions for home rule city charters; but this constitution was defeated.

A proposed amendment authorizing legislative home rule was approved by the New York legislature in 1917, but has not been repassed as required. A proposed home rule amendment has been approved by the Wisconsin legislature in 1919, but must be repassed at a later session. In Utah a proposed amendment, submitted by the legislature in 1919, will be voted on in 1920.

Charter-making Procedure: In most of the constitutional pro visions for municipal home rule, the main emphasis has been laid on the authority to frame and adopt charters. In most cases the procedure for charter-making is prescribed in the constitution; but this is not done in Oregon, Michigan and Texas; and in Michigan and Texas the constitutional provisions have been supplemented by legislation regulating the procedure and methods to be followed.

It is urged in support of detailed constitutional provisions on procedure, that unless these are definitely set forth in the constitution the grant of municipal home rule is merely formal and directory, and remains subject to legislative control in the enabling act. On the other hand it may be said that the grant of substantive powers is of more importance than the details of procedure; that the variations in the procedural provisions in the various constitutions and their frequent amendment indicate the absence of agreement as to the best system of procedure; that none of the constitutional provisions is entirely self-executing; and that in the states where the procedure is regulated by statute workable provisions have been adopted and there has been no serious complaint that the legislature has abused its power, while changes in detail may be more readily made.

In ten of the thirteen home rule states (all except Minnesota, Oregon and Colorado) the local councils may initiate charter-making proceedings; in eleven states (all except Missouri and Washington), the initiative may be begun by popular petition; and in eight states (all but the five named above) either method may be used.

All of the home rule states except Oregon provide for a special body to draft the charter, styled a board of freeholders or charter commission. These bodies consist of from 11 to 21 members, elected at large, except in Oklahoma and Michigan (where members are elected by wards) and in Minnesota where they are appointed by the district judges. In Oregon proposed charters or amendments are

presented by initiative petition or by the local council. In Maryland county charter boards have only five members.

In seven states, only freeholders may be members of the charter boards. In several states there are special residence requirements. In some states any qualified voter may be chosen. Most states provide no compensation for the charter board; but compensation is authorized in Colorado and Michigan.

Most states fix a time limit for the preparation of the charter, ranging from 30 days in Washington to one year in Ohio. From 90 days to six months are the more common periods.

In all the home rule states proposed charters and amendments must be submitted to popular ratification. In six states provision is made for publication in local newspapers; in California charters must also be printed in pamphlet form for distribution on application; and in Ohio, Oregon and Texas a copy of proposed charters must be sent to every voter before the election. It is usually provided that the ratification election must come within certain time limits after publication-generally from 20 to 90 days.

A majority of those voting on the charter is in most cases sufficient for ratification. In Texas, however, there must be a majority of the total vote at the election. Missouri and Minnesota require three-fifths or four-sevenths, respectively, of those voting at the election, a provision which has increased the difficulty of adopting charters.

In several states provision is made for submitting charters to state authorities before they go into effect. In California, all charters are transmitted to the legislature for approval or rejection as a whole. In Arizona and Oklahoma, charters are submitted to the Governor, who shall approve them unless in conflict with the constitution or [and] laws of the state. In Michigan the legislative act provides that proposed charters before ratification shall be submitted to the Governor, and if he disapproves a two-thirds vote of the charter commission is required. Thus far no charters have been disapproved in these

states.

Most states provide that official copies of charters and amendments shall be filed with the Secretary of State; and in several states it is specifically provided that the courts shall take judicial notice of such charters.

Amendments to former legislative charters may be adopted under the home rule procedure in Oregon, Michigan and Texas, without first adopting a new charter by this method. In the other home rule states, amendments may be made only to home rule charters. The procedure for amendments is similar to that of framing a new charter, except that a special charter board need not be organized. In most cases amendments may be prepared either by the local council or by popular petition. In Missouri and Washington amendments may be proposed only by the council; and in Colorado only by petition. The proceedings for the submission and ratification of amendments is the same as for new charters.