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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.
Profiting by the European example of administration, Vr. 273. 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
a City 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.
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.
274. Suggestions for Constitutional Provisions.
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 McBain” 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 selfexecuting; (3) that the charter shall not be required to be submitted to the governor or leg. islature 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 efl'ect 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,
?Proceedings, op. cit., 298, seq.
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 rela- . tion 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 oificers; furtherniore, 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,
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.*
TENNESSEE NOTE.-Home rule for cities is a thing unknown in Ten
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.”
*Brooks, R. C., Metropolitan Free Cities, 30 Political Science Quarterly, 222,
Luehrman v. Taring Dist., 70 Tenn., 425.
TYPES OF CITY GOVERNMENT.1
A municipal charter in whatsoever manner framed, bears
The City the same relation to the city that a constitution bears to the Charter. state. It is the city's organic law, its grant of governmental authority from the people of the state or their representatives in the legislature; and it determines the type of governmental organization which the city must accept. Notwithstanding the fact, therefore, that only two constitutions in any way dictate features of the framework of government which the sub-constitutions or city charters must set up, a study of the state constitutions may well include brief mention of the chief differences between the common types of municipal government. These are known respectively as the council, the commission and the city manager plans of municipal government.
The constitutions of the states are copious, if not generous, in their attention to cities, and the legislatures' freedom of Constitutions
and City action in dealing with them, irrespective of home-rule provi. Government. sions, is consequently not a little abridged. Detailed mandates concerning the city officers, notably such items as their election, qualifications and removal, concerning the city finances, espe. cially minute restrictions relating to municipal indebtedness, and concerning franchises and other matters relating to public utilities occur with great frequency. But they by no means exhaust the varied and miscellaneous provisions which peculiar experience or the whims of constitution-makers have dictated. The last-mentioned clauses include, among others, prohibitions
1General References : Munro, W. B., Gorernment of American Cities ; Gorernment of European Cities : Fairlie, Jno. A., Municipal Aulministration : commission Government for Cities, Annals of the American Academy of Political and Social Science, 38, pp. 671. seq. (1911): Robbins, E. Clyde. (Compiler) Commimssion Plan of Municipal Government; Bradford, E. S., Commission Gouernment in American Cities; Toulmin, II. A., Jr., The City Manager: A New Profession.
An interesting, though not typical, example is the Kentucky (160) clause forbidding the chief executive officer and officers whose chief duty is the collection and holding of public moneys to be eligible for a succeeding term in cities of the first and second class.
By far the most numerous of the constitutional restrictions, see, e. g., Ala., IV, 94, XII, 222, 225, 226; Cal., XI, 13/2, 18.