271. Administrative Supervision. 272. Home Rule in Europe. tion of state boards of elections, civil service and public utilities commissions and the employment of state administrative control over municipal police and sanitary departments in a few of the states suggests the extension of this method of supervision over whatever branches of municipal activity the state may consider too important to the welfare of the whole to be left unreservedly to the direction of the people of one of its parts. "The substitution of administrative for legislative supervision," says Professor Munro, 6 that is to say, of supervision by responsible boards of trained men rather than by the desultory action of legislatures-would be an influential factor in improving the relations of the city to the state, and would thereby have a beneficial reaction upon the affairs of the city itself. A sharp distinction ought to be made, however, between state administrative supervision and direct state control of municipal activities. The latter, especially when the city is forced to pay the bills, is never popular and cannot be looked upon as affording a permanent solution of local problems. Bearing in mind this warning, it is helpful to note for a moment the continental European form of home rule, the prin ciple at the bottom of which, according to President Goodnow," finds expression in the rule of law that the municipal corporation is not an authority of enumerated powers, but rather one of general powers, and that, in order to show the authorization to exercise a specific power, all that the municipal corporation shall be obliged to do is to prove that it has not been forbidden to act by the legislature of the state, either directly, or indirectly through the grant of the power to some other authority. This alone would endanger the unity of the state governmental organization, but legislative decentralization is accompanied by administrative centralization and the action of cities, whether affecting the whole state or merely themselves is checked by state officials. That is to say, the city is given prima facie freedom, subject to veto of specific actions by the state authorities in case of misuse of powers. President Goodnow concludes that "Government of American Cities, 76. Municipal Home Rule, an address before the Civic Conference, Portland, Ore., Aug. 18, 1905-21 Political Science Quarterly, 77 (84, seq.). the continental method of assuring to cities a reasonable home rule is to be preferred, not only because it would appear to afford them greater freedom of action, but also because the control over those functions of government attended to by city authorities which is exercised by the state is, under the continental method, less liable to be influenced by partisan political considerations. 273. Home Rule a City. Profiting by the European example of administration, Mr. Robert S. Binkerd, Secretary of the City Club of New York, and the Legal has taken the position that stable home rule is not a matter of Powers of constitutional provisions allowing cities to control the organization of their government, but of the powers which all cities shall share in common with all other cities. These should be defined by the legislature for all cities alike, as in the European countries. "The West," he says, has placed its entire emphasis upon the right of a city to control the form of its municipal organization. Those of us in the state of New York who have been working on this problem recently have put our whole emphasis upon the fact that home rule is essentially a question of the breadth and sufficiency of the legal powers with which a municipal corporation is clothed.' Constitutional change "so that instead of everything being construed as against the probability of a city having power to do anything," it should be presumed in the first place to possess the power it wants to make use of, is recommended by Mr. Binkerd, as is also complete abolition of special laws dealing with cities and provision to clarify the question of precisely what is a delegation of the law making power by the legislature. Similarly Mr. Laurence A. Tanzer, of the Municipal Government Association,' believes that the grant of home rule should not be in the form of power to frame a charter, but should in general terms confer power to regulate the city's municipal affairs. This broad general grant of powers should operate to reverse the presumption of law heretofore established that a municipality, like a private corporation, has no powers other than those expressly granted and those incidental thereto, and to establish the opposite presumption that a city is presumed to have all powers over its own local affairs not expressly Proceedings of Academy of Political Science, V, 333-5. "Acts of N. Y., 1913, ch. 247, partially accomplishes the club's ideas. Proceedings of Academy of Political Science, V, 306. 274. Suggestions for Constitutional Provisions. 275. denied it by the constitution itself or by legislation validly enacted under its provisions. This general grant of powers, he continues, should be in these words, Each city and each village shall have full power to regulate matters relating to its own property, affairs and government, subject to this constitution and the laws of the state. Interesting and highly significant as these suggestions undoubtedly are, it nevertheless remains true that current discussion of the problem of home rule for cities centers about the power of the city to frame its own charter and so to some careful suggestions to constitutional conventions seeking the best obtainable results from this method, a few concluding paragraphs may well be devoted. Recognizing how preferable it is for the convention to settle as many points as possible in order not to throw upon the courts what are properly its burdens, Professor McBain2 advises (1) that grants of power to cities shall be specific and not merely general; (2) that whatever the home-rule provision, it shall be self-executing; (3) that the charter shall not be required to be submitted to the governor or legislature for approval or rejection in toto; (4) that especial pains should be taken to examine all other provisions of the constitution with particular reference to the home-rule rights conferred; (5) 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. In partial conformity with this counsel is the latest pronouncement of a constitutional convention-that of New York in 1915. After providing that cities shall have exclusive power to manage, regulate and control their "property, affairs and municipal government," subject to general laws of the state, its proposed instrument continues, 2Proceedings, op. cit., 298, seq. "Proposed Const., XV, esp. sec. 3. See, also, supra, p. 95. Such power shall be deemed to include among others: (a) The power to organize and manage all departments, bureaus, or other divisions of its municipal government and to regulate the powers, duties, qualifications, mode of selection, number, terms of office, compensation and method of removal of all city officers and employees, including all police and health officers and employees paid by the city, and of all non-judicial officers and employees attached to courts not of record, and to regulate the compensation of all officers not chosen by the electors and of all employees of counties situated wholly within a city except assistants and employees of district attorneys and except officers and employees of courts of record. (b) The power, as hereinafter provided, to revise or enact amendments to its charter in relation to its property, affairs or municipal government and to enact amendments to any local or special law in relation thereto. A city may adopt a revised charter or enact amendments to its charter or any existing special or local law in relation to any matter of state concern the management, regulation and control of which shall have been delegated to the city by law, until and unless the legislature shall enact a law inconsistent therewith. The term "charter" is declared for the purpose of this article to include any general city law enacted for the cities of one class in so far as it applies to such city. The legislative body of a city is then empowered to enact amendments, subject to approval by municipal administrative officers; furthermore, every amendment which changes the framework of the government of the city or modifies restrictions as to issuing bonds or contracting debts shall be submitted to the legislature, but shall take effect as law sixty days after such submission unless in the meantime the legislature shall disapprove the same by joint resolution. Every eighth year every city is empowered, either at a general or a special election to submit to the electors thereof, the question "shall there be a commission to revise the charter of the city?" and may at the same time choose seven commissioners to revise the city charter in case the question be answered in the affirmative. After making especial provisions for New York City, the proposed constitution enacts that if the revision is ratified by the electorate, it must be submitted to the legislature and will become operative if that body fails to disapprove it. Apparently nothing of an essential character was added by the New York convention to the home-rule principles that were already familiar. Finally mention should be made of the recent suggestion that great metropolitan centers shall become separate states and in this way achieve completely and once for all a perfect degree of home rule.1 TENNESSEE NOTE.-Home rule for cities is a thing unknown in Tennessee. On the other hand, cities are held to be under the absolute control of the legislature. The constitution makes no mention of them except to authorize the legislature to vest jurisdiction in "corporation courts" and to regulate the finances of incorporated towns and authorize for them additional justices of the peace. The clause providing that no "corporation" shall be created by special laws is held not to apply to municipal corporations. In practice every city of any importance has a charter granted by special enactment and usually amended at every session of the legislature. Provision has been made, however, under general laws, whereby any part of a county not already incorporated may become so on petition of "any number of legal voters over fourteen" ratified by two-thirds of the legal voters of the territory involved. 4Brooks, R. C., Metropolitan Free Cities, 30 Political Science Quarterly, 222. "Luehrman v. Taxing Dist., 70 Tenn., 425. 6VI, 1; II, 29; VI, 15. "Williams v. Nashville, 89 Tenn., 487. Shannon's Code, 1881, seq.; concerning taxing districts, see 1998, seq. |