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In view of the long-established attitude of the courts of this country toward the rights of persons in property rights which must be protected by the strong arm of the judiciary against assaults made by the so-termed political departments of the government—it is scarcely surprising that these same courts should view with some illiberality the attempted exercise by cities alone of powers which directly affect the rights of persons and of property under the law. I refer here, of course, to powers other than police powers, which time out of mind have been exercised by municipal corporations.
I have indicated, then, the character of some of the questions that have actually arisen in other states as to the scope of powers included in the grant to a city of the authority to frame a charter for its own government. I could easily elaborate the list with supposititious questions that would be neither academic nor foolishly theoretical. But enough has been said to demonstrate that the phrase, "a charter for its own government," does not describe a concept that is capable of exact legal definition. Nor should there be occasion for astonishment at this. Every thoughtful or observant person has a tolerably clear general notion of what functions are appropriately municipal in character. But most sensible persons would hesitate before the task of translating that general notion into precise definition. The courts have had no more and no less difficulty in the task of specifically defining this general phrase than you or I would have, were the obligation imposed upon us, although it may be that each of us feels certain that he could have given far readier and far more satisfactory answer to some of these questions.
You may have noticed that I have found answers to the concrete questions propounded far more frequently in the decisions of the Missouri and California courts than in those of the other states in which the right of home rule has prevailed for some time. And you may naturally ask: why this difference in the amount of litigation? The answer for Washington has already been indicated. There the legislature early assumed the authority to determine for all cities what powers they might exercise, and this asumption of authority was recognized as
valid by the courts, though the reason does not appear. Apparently the four home-rule cities of that state, upon the basis of this view, have not attempted to overstep the bounds of their competence as thus marked out by the legislature. It may be remarked also that the statute in question was in point of fact fairly liberal in its enumeration of the powers that might be exercised. The absence of litigated controversies upon this point in Minnesota may be attributed in large part to a somewhat similar cause. The important difference, however, between Minesota and Washington is that the provision of the Minnesota constitution expressly declares that "the legislature shall prescribe by law the general limits within which such charter shall be framed." To a partial extent at least the legislature has fulfilled this obligation of setting the limits of the city's legal capacity.1 The Michigan constitution confers precisely the same authority upon the legislature
-an authority which has been acted upon by the enactment of an elaborate statute prescribing the powers which the city must exercise, the powers which it may exercise, and the powers which it may not exercise. Little controversy upon this point, therefore, need be expected in that state. That there have been only one or two adjudicated cases in Colorado must be ascribed to the fact that the cities of that state have, as to their powers at least, followed the beaten and indisputable path, or to the highly improbable fact that the vast host of ever-present persons who are potentially interested in defeating the progressive activities of cities have been marvelously passive in Colorado. I know of no other causes to which the almost total absence of controversies upon this point may be attributed.
It is doubtless unnecessary for me to define and explain the distinction between the functions of a municipal corporation as an agent of the state and as an organization for the satisfaction of local needs-a distinction which has been laid down
1 It was early contended that the legislature had not performed its duty in this respect in sufficient detail. But this contention was disallowed by the court. Evidently, however, as in Washington, the commission form of government was valid only because the legislature had permitted it.
by the courts as a premise for the formulation of governing rules in many branches of the law of municipal corporations. I cannot pause to point out the hopeless inconsistencies of utterance into which the courts have drifted in their efforts to apply this distinction in the numerous and highly various circumstances in which necessity for its application has arisen. I can only say that if you have patience to read broadly in the cases, you may find that you can follow the reasoning of many —perhaps most of them with considerable concurrence, but you will also find in the end that this much-reiterated distinction varies very nearly all the way from something of great vitality and importance to nothing at all. It may be that as to some of its aspects it is a distinction that rests upon nothing more substantial than the theoretical and somewhat arbitrary
views of judges. But however variant a legal concept it may be, and whatever may be the soundness of its foundation in logic, it is a distinction that is woven deeply into the fabric of our law.
Now the point that I wish to make in this connection is that the courts have been called upon in very few cases indeed to apply this distinction in the determination of the competence of the city which drafts a home-rule charter. And the reason is patent. In respect to those functions in the performance of which the city has been held to be acting as an agency of the state, the legislature has commonly enacted many laws of general application. The controversies that have arisen, therefore, have involved questions of conflict rather than merely questions of power. On the whole, this has been fortunate, for otherwise the courts might have been called upon in numerous cases to decide whether a city in providing for its "own government" had authority to provide for departments of fire, police, health, education, elections, charities, corrections, or even streets. In respect to one and all of these functions the city has been held in one or more branches of the chaotic law of municipal corporations to be acting merely as a representative of the state. It would certainly have reduced the right of home rule to a ludicrous farce had the courts asserted that a city in providing for its "own government" had no power
to regulate any of these matters. And yet it may not unreasonably be asked: if the city in its control of such matters is merely an agent of its creator-the courts have seldom gone so far as to declare even that its agency relation is one that is coupled with an interest—how can it be held that such matters pertain to its "own government?" As I have already said, there has been scarcely any determination upon this point for the reason that in the controversies that have arisen there has nearly always been some state law that has given rise to the much more obvious contention that the city was attempting to controvert some general established policy of the state.
And this brings me to a consideration of the second and far more important of the difficulties to be encountered in drafting a constitutional provision upon this subject. This is the difficulty of wording a restrictive phrase that will prevent the city from overruling the will of the state upon a matter of state-wide interest and concern. Let me briefly review for you the existing constitutional phrases upon this subject and indicate quite inadequately, I regret to say, because of time limitations-something in regard to the manner in which our judges have interpreted them.
The constitution of Missouri expressly declares that the charter framed by a city "should always be in harmony with and subject to the constitution and laws of the state." 1 Elsewhere the legislature is prohibited from enacting special laws relating to cities; but since under court adjudication each of the home-rule cities-St. Louis and Kansas City—is in a class by itself, this prohibition is of no material consequence. It is practically impossible to describe briefly the definition which the courts of the state have given to this phrase, “laws of the state," which charters must be "in harmony with and subject to." In 1904 the supreme court itself admitted that it was a wholly futile undertaking
to tread the maze of adjudication, perhaps to become lost in the
1 It also declares that "notwithstanding the provision of this article, the general assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this state."
labyrinth of the ingenious and divergent reasons which pervade the cases in respect to the power of the state at large over municipalities incorporated under article nine of the constitution, and in respect to the power of municipalities to adopt charters regulating matters of mere local concern, with which the state at large has no concern, which have the effect of repeating prior general state laws on the same subject, or which place such cities in respect to such matters beyond state control.
"Exhaustive investigation" had, in the court's own opinion, "led to such poor results" that "repetition and reiteration had become "offensive." This is certainly an amazing confession either of the absurd and hopeless ambiguity of the constitution itself or of judicial incompetence. But it has the commendable virtue of frankness.
Attempting, then, what the court itself declared to be a futile undertaking, I think it may be said in a general way that at the outset the courts were inclined to assert that a home-rule charter was subordinate in every respect to any law that the legislature might enact. This, you will see, was a perfectly literal interpretation of the terms of the constitution. But ultimately the court came to see that such a construction transformed the constitutional right of home rule into a rapidly disappearing shadow. In general effect, therefore, but 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. And here are some of the concrete examples of the manner in which this qualification has been applied either specifically or by fair implication :
A state law supersedes a charter provision in any matter relating to the police department. (It may be remarked parenthetically that the police departments of both St. Louis and Kansas City are still controlled by state-appointed commissions, as they were prior to the adoption of home-rule charters.) A law regulating the issue of liquor licenses takes precedence over a charter provision on the same subject. So does