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treasures of future generations. Therefore, home rule must be subject to two kinds of restrictions; one, to protect the people of the state, and the other, to protect future generations in the city itself.
I want to read you a tentative provision covering the first of these difficulties, which, however, is not presented with the authority of the National Municipal League committee, because, as I said, thus far we have been unable to agree upon just what should be done in the way of restrictions:
Such powers shall not be exercised in conflict with the provisions of this constitution [referring to possible limitations in other portions of the constitution] and shall be subject to such specific limitations and restrictions as may hereafter be imposed by general law, applicable alike to all the cities, or to all the villages of the state; but the enumeration of particular powers herein, or in any general law, shall not be deemed to limit or restrict the general grant of powers herein conferred.
Under this provision cities, having received a full grant of powers, may exercise the initiative in doing anything that they desire to do, or that they deem for the benefit of their inhabitants. Then, perhaps, it may safely be left to the legislature, representing the people of the entire state, to enact restrictions upon the activity of all cities, whenever any particular city shows by its eccentricities that it is necessary to do so. The theory is that when the cities start with a complete grant of powers it will be extremely and increasingly difficult for the legislature to withdraw from all the cities of the state any powers which they might properly exercise; that the legislature will be restrained by the public opinion of the state and by the united power of the cities of the state from improperly limiting the powers granted by the constitution.
No one can tell just how this plan would work in practice, but if this power to place limitations upon home rule by general law were made subject to the referendum so that no legislature controlled by a boss or a partisan machine would have the authority to take away any powers from the cities without having that legislation subject to the popular veto, this power conferred
upon the legislature would not seem to be an unsafe grant. The cities ought to be endowed with the broadest powers and duties of home rule, and then if the people of the state desire subsequently to limit these powers in specific ways, at particular times, they should have the right to do so.
The only other point I wish to speak of to-day, and this was not touched upon at all in Professor McBain's paper, is with reference to the protection of the future. I know that the Citizens' Union, in preparing its campaign issues for constitutional convention delegates, put down, as one of its planks, a demand for a provision in the constitution forbidding the grant of perpetual franchises. I agree with that, but I feel that a prohibition of the grant of perpetual franchises means substantially nothing, unless some limitation a long way short of perpetuity is required.
In our constitutional law, we ought to make some provision limiting the grant of franchises-to refer to that subject alonein such a way as to preserve to every generation of electors in every city, the right, without undue handicaps, to undertake the acquisition, ownership and operation of their utilities, if they so desire; and of course it is wholly impossible to preserve to the future this means of home rule, if we leave the cities of the present day so much home rule that they can give away their streets forever, if they choose. Municipal home rule should be limited to the right of the cities in this generation to control the affairs of this generation.
ROBERT S. BINKERD
Secretary of the City Club of New York
feel that Professor McBain has performed a very real and friendly service to a great cause in setting forth the difficulties in the way of its achievement. We must be perfectly clear as to what conclusions are to be deduced from the experience which he has recited for us.
It seems obvious that the insertion of a few loose sentences in a state constitution does not establish a stable system of municipal government, free in all that concerns municipal
affairs. It must be equally plain that the constant attempt absolutely to eliminate the legislature transfers the whole problem to the courts, with results not in the least satisfactory. This line of endeavor also leads us to no kind of solution.
The little group of men in this state who have made the term municipal home rule" have the meaning and vitality attained by it in the last few years have realized this fact from the very start. We have realized that the great systems of stable home rule in Europe are founded not upon constitutional provisions but upon legislation, and we should have been willing to accomplish our entire program in this state by legislation were that legally possible.
Far from pursuing the loose theories, to call them no worse, followed in some of the western states, we have pursued a diametrically different policy. The West 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. Therefore, long before we thought of raising seriously the question as to the form of municipal organization, we sought to establish, for the first time in the history of the state, a common pool of municipal powers which each city of the state shared with every other city. That was the object and the partial accomplishment of chapter 247 of the laws of 1913.
It is not possible, without constitutional change, to pursue this program to its ultimate conclusion, for these reasons:
First, the rule of construction regarding municipal law has to be changed, so that instead of everything being construed as against the probability of a city having power to do anything, the municipality shall be assumed, prima facie, to have power. In order to accomplish that exact reversal of the rule of construction, we must amend our constitutions.
Second, though we should not in the least seek to eliminate the exercise of the legislative power, either in matters of state concern, or even in the definition and re-definition and expan
sion of the municipal empowering act, yet we do need by constitutional definition to confine the action of the legislature to general municipal law.
Once deprive the legislature of the opportunity to treat a particular city in a particular way, as though it had absolutely no reference to a municipal system in existence in the state, and we are entirely willing to take our chances with the legislature, because we know perfectly well that if the forty-nine cities of this state have a common interest in an identical list of powers, conferred upon them by the legislature, the legislature cannot invade that pool of powers except over our dead bodies.
Third, we need constitutional change, because the decisions of our highest court have been exceedingly technical upon the question of what is and what is not a delegation of the lawmaking power. In order to stimulate a highly desirable local initiative in re-framing the forms of our municipal organization, so that this group of powers may be well exercised, we need to clear up this question, so that the state may be able to permit the people of its cities to devise and to change their city char
The above is all that we seriously require in a constitutional I believe that Professor McBain will agree with me that the pursuit of this policy eliminates the most troublesome questions which have arisen in the general municipal experience in the United States, and that our decision to trust to the legislature the legislative power, provided it is confined to real, general legislation affecting our cities, is a safe and sane method of bringing about municipal home rule.
WALTER T. ARNDT
Executive Secretary, Municipal Government Association of New York State So much has been said about the powers of cities, and the legal and constitutional aspects of the municipal-home-rule problem, that I am not going to address myself to that at all.
I think there are some phases of the home-rule movement, however, some points in the struggle that we have been waging in this state for municipal home rule, that may well be empha
sised at this time, because they have a very direct bearing upon what we may expect after we succeed in writing into the constitution a broad, far-reaching home-rule provision. There is more than a grain of truth in the proposition that municipal home rule, its practice and its application, depends almost as much on men as on measures, and it is this personal aspect of the thing, the personal and political aspect of it, that I want to consider.
The personal equation certainly does enter into the home-rule question just as it must enter into any problem where there remains a certain amount of discretion in the enforcement or limitation of statutes. To some extent, this has been indicated in the paper of Professor McBain, who has shown that there is a great deal of difference in the actual degree of home rule enjoyed in the several states, the provisions in whose constitutions would seem to indicate that they possessed an equal share.
Home rule, to be effective, must be something more than a theory or set of principles. It is not enough to write a strong home-rule provision in the constitution, and follow it up with the enactment of laws based on that provision. That, of course, is necessary; we could not have real home rule without it; it is for that we are fighting in this state now. We must insist that these principles be incorporated in statutory form; they must be as far-reaching as possible, and as clear and explicit as they can be made. But the most far-reaching provision will be of little real value in solving the great problems of municipal | home rule unless the principles are practised. Practice is the personal aspect; that is where the personal equation comes in. It is this personal equation that we must depend on to see that the home-rule provision, once it is incorporated in the constitution, does not become a dead letter. We have got to wipe out once and for all from the minds of the men who administer the law the idea that the presumption is in favor of the power of the state in every debatable crisis, just as surely as we have to wipe off from the statute books the presumption which is now given the force of law. I believe that we can accomplish this result. I believe that the lawmakers and the municipal authori