POLITICAL SCIENCE QUARTERLY. 'No MUNICIPAL HOME RULE. TO principle of law is more firmly established than that municipal corporations are the creatures of the legislature, which may enlarge, abridge or entirely withdraw their powers in its own discretion.1 With the single exception that municipal property owned by the corporation in its own right may not be taken from it, the legislature has, by common law, absolute power over municipal affairs. While the early constitutions. of nearly all the commonwealths contained bills of private rights, municipal corporations were considered as so completely governmental in character that they could not safely be protected against legislative interference, except in so far as such protection was afforded to them as owners of private property. The existence of such a rule of law makes it possible for the legislature to exercise control not only over such of the functions discharged by the city as interest the state as a whole, but also over matters of a purely local and quasi private character. That the legislature has, as a matter of fact, controlled both these fields, needs no demonstration. In some of our commonwealths its attitude has been more worthy of censure than in others; but in all alike it has failed. to distinguish between matters of a public character, in which its interference is justified, and matters of a private character, which should belong within the realm of municipal local autonomy. 1 Meriwether vs. Garrett, 102 U. S., 472-511; Rogers vs. Burlington, 3 Wallace, 654. The attitude of the legislature toward municipal corporations is, however, very largely excusable, and for several reasons. In the first place, under a system of constitutional law which relies upon a written constitution and its maintenance through the courts, rather than upon the wisdom of the legislature, for the protection of the sphere of individual freedom, the legislature is liable to throw off the responsibility for its action upon the courts; and the habit thus formed with regard to ordinary private rights becomes extremely disastrous when applied to legal persons like municipal corporations, which are not, like natural persons, protected by the constitution. In the second. place, the fact that many functions of central concern are discharged by municipal corporations or by their officers, makes it absolutely necessary for the legislature at times directly to interfere in the administration of city affairs, so far as they involve matters which affect the state as a whole. The habit of interference is then insensibly extended to matters which do not at all affect the central government of the state or the interests of the community at large. This from the scientific point of view-unwarranted extension of the legislature's control is further a natural result of the rule that has been almost universally adopted as to municipal powers. No better or more authoritative statement of this rule can be found than that given by Judge Dillon and approved by many of the latest judicial decisions: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words. Second, those necessarily or fairly implied in or incident to the powers expressly granted. Third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.1 The necessary result of such a rule of law, with the accompanying strict construction which is usually adopted,2 is that 1 Dillon, Municipal Corporations, fourth edition, p. 145. 2 Ibid., 148. municipalities must often apply to the source of authority, that is, to the legislature, for an increase of power, in order to remove any doubt as to the existence of particular powers which it is desired to exercise, but which are not clearly conferred by the charter. This condition of things has been aggravated by the fact that originally in this country all city charters were to be found in special acts, the passage of which, with their amendments, necessitated frequent action by the legislature with regard to municipalities. The legislature, being called upon continually to legislate thus with regard to purely local matters, easily became accustomed to consider itself the proper authority to regulate such matters, as well as those in which the municipality acts as the agent of the state governThere has been an utter failure to distinguish any sphere of municipal home rule into which the legislature should not intrude. ment. The undoubted and well-recognized evil of continual legislative interference in purely local matters has caused a resort to the remedy which had before been employed in protecting the sphere of freedom of private citizens. We have in many instances incorporated into our later constitutions provisions which limit very largely the power of the legislature to interfere with the affairs of municipal corporations. Thus the constitutions of many of the commonwealths direct the legislature to provide by general laws for the incorporation of cities. In others the legislature is forbidden to pass special laws relative to particular matters of local concern, e.g., relative to highways and streets. Finally, in some of the constitutions it has been enacted that the officers of municipal corporations shall be elected by the people thereof, or appointed by the municipal authorities in such manner as the legislature shall provide. In a few states the constitutional provisions are even more stringent. Thus in Missouri, California and Wash 1 See Stimson, American Statute Law, I, p. 110, sec. 500; p. 102, sec. 441; p. 95, sec. 395; p. 47, sec. 210 E 5. See also the constitution of New York, art. x, sec. 2; art. xii, sec. 2. ington it is further provided that cities of a certain size shall have the right to frame their own charters.1 This method of securing to these quasi-public persons called municipal corporations their sphere of individual liberty and freedom of action has the usual disadvantage of drastic remedies: it is liable to produce greater evils than those which it was intended to remove. Thus, there is usually in a state at least one city whose institutions, resulting from its situation, are so peculiar as to render almost impossible the application to it of a rule which may be applied with advantage to the cities of the state as a whole. The dangers of the Procrustean procedure necessary in such cases are, it is true, avoided in a measure by the method adopted in Missouri, California and Washington, where cities of a certain size have the power to frame their own charters; and such dangers completely disappear under the system of securing municipal home rule adopted in the recent constitution of New York, which provides for a suspensive veto, to be exercised, after a public hearing, by the municipal authorities of the city affected, upon all special legislation relating to municipal property, affairs or government.2 But in all these cases of constitutional restriction we are confronted by an extremely important and perplexing legal problem. Before any restriction has been inserted in the constitution, the question as to the limits of the sphere of municipal activity is a question largely of academic interest; but just so soon as such a restriction becomes a provision of the positive law, the determination of the sphere of municipal activity which is to be protected against encroachments by the legislature becomes a problem of supreme legal importance; for upon its solution depends the constitutionality of many acts of the legislature relative to municipal competence. The most important provisions contained in the commonwealth constitutions relative to the power of the legislature to create and regulate municipal corporations are of two kinds : 1 See Oberholtzer, "Municipal Home Rule," in the Annals of the American Academy of Political and Social Science, III, 736. 2 New York constitution, art. xii, sec. 2. First, those which forbid the legislature to grant corporate powers by special act; second, those which forbid the legislature to pass special acts regulating "county, city or town affairs" or the "internal affairs of counties, cities or towns," or which assure to municipalities the right to elect their own officers. Often we find at the same time a positive injunction laid upon the legislature to provide for the incorporation of cities by general law. These constitutional provisions do not, indeed, attempt so much to limit the regulative power of the legislature over municipal corporations as to insist upon the exercise of this power in a particular manner. At the same time, they tend indirectly to strengthen the position of municipal corporations over against the legislature; for the prohibition of special laws often prevents the legislature from interfering in matters of purely local concern affecting some particular municipal corporation, and obliges it to delegate much greater powers than it otherwise would delegate to local bodies. The exact degree of limitation upon the power of the legislature over the localities that results from these constitutional provisions can be determined only by the answers to two questions: First, what is a special act under the constitution? and second, what are the corporate powers which may not be conferred by special act, or what are the "affairs" or the "internal affairs" of the corporation which may not be regulated by special act? I. What is a Special Act? 1 The recent constitution of New York is almost the only one which specifically defines a special act. Such an act is said to be one which affects less than all the cities of one of the classes of cities for which the constitution provides. In the other commonwealths the answer to the question is left to the courts in their construction of the constitution. It is to be noticed here, in the first place, that the courts do not hold themselves precluded from investigating facts by the passage of an act which is general in form, but which is actually special in its application. The Illinois constitution |