if in conflict with a general statute. It may be said to begin with that the constitutions of most of the home-rule states declare that the charter shall be subject to the general laws of the state and impose no restrictions upon the enactment of general laws. On the other hand, Colorado expressly declares that the charter and ordinances made pursuant thereto as to municipal and local matters shall supersede within the jurisdiction of a city or town any law of the state that conflicts with it. Oregon ordains that its legislature shall not enact, amend or repeal any charter, and California that it shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws.5 Just what “municipal affairs" may include has been a puzzling question for the courts, and, indeed, every phase of the question of power in making charters presents questions of difficulty that have not as yet been satisfactorily adjudicated. It must be confessed, however, that no court could find easy the task of determining between two provisions seemingly so contradictory as those existing in most of the constitutions, conferring the power upon cities to make what presumably were intended to be home-rule charters and at the same time taking away home rule by making the cities unrestrictedly subject to general legislative enactment. The experience of Washington furnishes perhaps the most interesting example. The legislature assumed the authority to enact a law setting forth in detail the precise limits to which cities could go in making their charters. The city of Tacoma undertook to regulate its gas rates -a power not specifically conferred by the statute-and the court, notwithstanding the urgent plea that this power was, Ariz., XIII. 2; Mich., VIII, 21; Minn.. IV. 36; Mo., IX, 16, 20, St. Louis; Neb., XIa, 2; Okla., XVIII, 3a; Tex., XI. 5; Wash., XI, 10. See, also, Cal., XI, 8; Colo., XX, 5; Md., XI-A, 3, 4; 0., XVIII, 3; Ore., XI, 2. Acts of Washington, 1889-90, p. 215. nevertheless, inherent in the city's constitutional prerogative to frame its own charter, dismissed the subject with the pronouncement that the legislature having passed a general law upon the particular subject, the power to fix such rates must be found therein, if at all.' "In other words," as Professor McBain says, the city's power under a direct constitutional grant of home rule was just as large and just as small as the legislature chose to make it. Astounding doctrine!s In Minnesota the constitutional authority is express that "the legislature shall prescribe by law the general limits within which such charter shall be framed"-an obligation only partially fulfilled, but in Michigan,' where similar power is conferred, the legislature has set an example by enacting a very elaborate statute minutely governing municipal charter-making. Texas has closely followed this example, which manifestly leaves the legislature with ample power "to reduce the homerule right to a hollow shell." The legislatures of Oklahoma and Arizona apparently appreciative of this paradox have passed laws declaring that in case of conflict between a city-made charter and a statute relating to cities, the provisions of the charter shall prevail and be in full force, and shall be as a repeal or suspension of the state law to the extent of the conflict,-an enactment that puts beyond question the fact that a statue passed for the purpose of regulating cities has no application to those which have adopted home-rule charters. The enormous amount of litigation which in the absence of constitutional or legislative pronouncement on this subject, has flooded the courts of Missouri, places it in striking contrast to the last-named states. At the outset, according to Professor McBain, the courts seem to have been "inclined to assert that "Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash., 288 (1896). Proceedings, op. cit., 16. DIV, 36. 1VIII, 21. Must be by a general law. 2XI. 5. Where the charter must not only be consistent with "general laws enacted by the legislature" but "subject to such limitations as may be prescribed by the legislature," query, would the provisions of an enabling act be void if in conflict with a "general" law? McBain, Proceedings, op. cit., 34. a home-rule charter was subordinate in every respect to any law that the legislature might enact." Eventually, however, they came to see that such a construction transformed the constitutional right of home rule into a rapidly disappearing shadow. In general effect, therefore, and not without much hesitation and many excursions into by-ways of argument and discourse, the court may be said to have read into the provision a qualification which asserts that the controlling laws of the state must be laws relating to matters of general or state concern as distinguished from local concern. The evolution of judicial thought in Missouri is probably typical of the general development of popular ideas upon the subject of home rule for cities. Only gradually has appeared the conception of home rule as a constitutional right with which, in its recognized limits, the legislature can do more to interfere than with recognized rights of individuals, like due process of law and trial by jury. It is evident that, under general constitutional provisions granting to cities the power to frame their own charters, there has resulted no nice balance of prerogative between city and legislature. The distinct subordination of the former to the latter has continued. In addition, however, to the declarations of Colorado and Oregon, already noted, and the gradual development of legislative and judicial thought upon the subject, several of the constitutions enumerate certain powers which may or must be included in home-rule charters and so are declared to belong to cities. Among the more interesting of these are the Colorado mandate that the charter shall provide the initiative and referendum for ordinances passed by the city council and the optional powers granted to the cities of California, the only state in which the specific enumeration has undergone any notable development. Among them are—(1) the establishment and regulation of municipal courts; (2) to determine the manner of election, terms, qualifications and compensation of members of the board of education; (3) provision for boards of police commissioners and for the government of the municipal Cal., XI, 6, 8, 82, XX, 13; Colo., XX, 2, 3, 4, 5; Minn., IV, 36; Mo., IX, 17, 20, 23, St. Louis; Neb., XIa, 3, 4; Ore., IV, 1a; Tex., XI, 5. See, also, O., XVIII, 3. police force; (4) full control over municipal elections and election officers; plenary authority in regard to the terms and compensation of both appointed and elected officials and employes and for their recall and removal and for their assistants; (5) authorization of the separation of any city having a popu lation of 50,000 from the county in which it is situated and its formation into a consolidated city and county; (6) the annexation to any consolidated city and county of contiguous territory under certain specified circumstances. The enumeration of certain powers must not be construed to limit the general grant of powers under the charter-making right. Control. This practice of enumeration immediately and very pointedly Necessity raises the question of what powers may be declared to belong for State to cities without infringing upon those prerogatives for the exercise of which a prior right in the state government may be necessary to protect the interests of the state as a whole against its individual parts. Constitutional specification is clearly a means of obtaining home-rule rights that the courts are bound to respect and follow with the utmost strictness, and while its use has not as yet been attended with any untoward experience, there is certainly need-if the opinions of commentators are worth regarding-for the state to guard with great diligence the superior authority of its own government in such matters as taxation and public debts, control of elections and of the police, and, where several cities are situated near each other, the purely municipal concerns, like water-supply and sewage disposal, in which one should not be allowed to prejudice the interests of the others. Municipal history furnishes too many instances of graft and police corruption, of excessive tax rates and borrowing to bankruptcy to make advisable as yet the utter withdrawal of the paternal arm of state interference. On the other hand, however, it may well be claimed that with home rule there comes an increase of civic education and of civic consciousness and responsibility, together with a divorcement of municipal from external politics, that may be trusted to develop in cities greater ability to stand alone. Whatever control the state retains may probably be exercised in some other way than through its legislature. The crea 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," 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 principle 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.). |