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265. Incorporation by General Law;
In the second place, even if the legislature had sufficient leisure to consider the affairs of cities, its members, usually in large part from rural districts, are ill-acquainted with the conditions of city life and, what is worse, often predisposed to think that cities should be ruled precisely according to rural standards. "So long as the State Legislature can control the powers of the cities through special enactment, there is," as the late Professor Karns, with unsuspected magnitude of truth, remarked," "a possibility that the will of the people may be defeated." The upshot of the whole practice is that the legislature impedes the development of the cities and the cities impede the work of the legislature.
It is not surprising therefore that constitutions of the present disclose a variety of efforts to protect the cities and the legislatures from each other. First among them is the prohibition Classification. of special or local legislation for the incorporation of cities, found in about one-third of the constitutions, most of which cautiously include within the prohibition the amendment of city charters. Some additional states seem to accomplish the same end by a general clause forbidding special or local laws or by requiring that legislation for the incorporation of cities shall be by general laws. No fewer than fifteen states,1 indeed, contain the latter provision, some of them, however, merely in addition to the prohibition of special laws. The end sought by these provisions has not been attained; means of evasion have as a rule been discovered by the legislature and its control over the cities continued. A favorite method of evasion has been developed from the obvious necessity of classifying the cities of the state in order that general laws may contain different provisions suited to the needs of cities of different sizes, situations and economic interests-a necessity recognized, indeed, in a num
"Government of Tennessee (1896), p. 102.
8Ala., IV, 104; Ariz., IV, 19, 17; Ill., IV, 22 (except, under specified conditions, Chicago-IV, 34); Ia., III, 30; Minn., IV, 33; Mo., IV, 53; Neb., III, 15; N. M., IV, 24; N. D., II, 69; Okla., V, 46; Pa., III, 7; S. C., III, 34; S. D., III, 23; Tex., III, 56; W. Va., VI, 39 (applies only to cities of less than 2,000 inhabitants); Wis.. IV, 31; Wyo., III, 27. See, also, Va., IV, VIII, 116, 117. Utah, VI, 26, 12, forbids amendment by private or special legislation.
9e. g., Ark., V, 25.
1Ariz., XIII, 1; Ark., XII, 3; Cal., XI, 6; Colo., XIV, 13; Ida., XII, 1; Kan., XII, 5; Ky., 156, 166; Mich., VIII, 20; Mo., IX, 7; Nev., VIII, 8; O., XIII, 6; XVIII, 2; Okla., XVIII, 1, Sched. 10; Utah, XI, 5; Va., VIII, 116, 117; Wash., XI, 10; see, also, Miss., IV, 88; S. C., VI, 1; Wyo., XIII, 1.
ber of constitutions,2 by general clauses authorizing classification. No especial astuteness on the part of legislators is required to arrange the classes so that each city of importance is in a class to itself and special legislation, disguised as general laws relating to a class of cities, goes on as formerly.*
To prevent this several states have designated their classifi- 266. cations, according to population, in the texts of their constitu- tional Clastions.5 The most elaborate of these, Kentucky's, divides the cities and towns of the state "for the purposes of their organization and government" into six classes (1) those having 100,000 or more people; (2) 20,000 and less than 100,000;7 (3) 8,000 and less than 20,000; (4) 3,000 and less than 8,000; (5) 1,000 and less than 3,000; (6) less than 1,000. An arrangement of this kind, while arbitrary from the point of view of the actual conditions and needs of particular cities, possesses the advantages of having fewer and more general-hence better considered-laws regulating the government of cities and of freeing the cities from the dictatorship of local delegations.
New York, which has a constitutional classification of 175,000 or more people, 50,000 and less than 175,000, and, finally, all other cities, provides that
laws relating to the property, affairs of government of cities, and the several departments thereof, are divided into general and special city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those which relate to a single city, or to less than all the cities of a class. Special city laws shall not be passed except in conformity with the provisions of this section. After any bill for a special city law, relating to a city, has been passed by both branches
2Legislature by general laws to provide for classification in proportion to population subject to provisions of this article. (Ariz. XIII, 1; Okla., XVIII, 1). Legislature may provide for classification by general law. (Ark., XII, 3). Legislature to provide by general laws for classification in proportion to population, which laws may be altered, amended or repealed. (Cal., XI, 6; Utah, XI, 5; Wash., XI, 10).
The same adding "by general laws",-(Ida., XII, 1). Colo. (XIV, 13) and Mo. (IX, 7) provide for classification by general law and that the number of classes shall not exceed four.
The relative merits of special and general charters are discussed in the introduction to the Municipal Code of Ohio, (1901) edited by W. H. Ellis. The experience of Ohio with legislative evasion of the constitution is thoroughly illustrative.
The courts have been exceedingly hesitant about interfering. See, however, State v. Jones, 66 Ohio, 453 (1902).
"Ky., 156; Minn., IV, 36; N. Y., XII, 2; see, also, Va., VIII, 117.
Includes Louisville only.
Includes Covington, Lexington, Newport and Paducah.
8XII, 2, originated in constitution, 1894.
of the Legislature, the house in which it originated shall immediately transmit a certified copy thereof to the mayor of such city, and within fifteen days thereafter the mayor shall return such bill to the house from which it was sent, or if the session of the Legislature at which such bill was passed has terminated, to the Governor, with the mayor's certificate thereon, stating whether the city has or has not accepted the same. In every city of the first class, the mayor, and in every other city, the mayor and the legislative body thereof concurrently, shall act for such city as to such bill: but the Legislature may provide for the concurrence of the legislative body in cities of the first class. The Legislature shall provide for a public notice and opportunity for a public hearing concerning any such bill in every city to which it relates, before action thereon. Such a bill, if it relates to more than one city, shall be transmitted to the mayor of each city to which it relates, and shall not be deemed accepted unless accepted as herein provided, by every such city. Whenever any such bill is accepted as herein provided, it shall be subject as are other bills, to the action of the Governor. Whenever, during the session at which it was passed, any such bill is returned without the acceptance of the city or cities to which it relates, or within such fifteen days is not returned, it may nevertheless again be passed by both branches of the legislature, and it shall then be subject as are other bills, to the action of the Governor.
Following this unique method of retaining the means for enactment applying to individual cities without allowing the legislature complete sway over them, Illinois has adopted an amendment requiring that enactments relating to the Chicago charter and special laws affecting the city must be submitted to a referendum of the municipal voters. Michigan1 more generously stipulates that
no local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.
Interesting and important as this method of clearing the atmosphere between legislature and city undoubtedly is, it falls far short of effective home rule. Its effect is merely negative. It blocks legislative tyranny, it makes difficult city control by inimical political factions or selfish and bigoted rural members, it makes unprofitable the consumption of the legislature's time upon frivolous local measures, but it gives the cities no method of obtaining measures that they consider necessary to their prog
91904, IV, 34.
ress. This has been obtained only by independence of the legis lature. The privilege of ruling their destinies without consulting the legislature has been acquired by cities in so far as it at present exists, through the constitutionally granted right to frame their own charters, together with the powers, express and implied, accompanying such a right. This is what present-day writers consider the most advanced phase of municipal home rule that has been put into practice in the United States.
The Missouri constitution of 18752 was the first to authorize the cities of a state to frame their own charters; its popula- Cities to tion requirements were such, however, that it was in effect a Their Own grant of power to St. Louis only. Before 1900 only three other states had granted permission to make use of this plan, but at present thirteen constitutions authorize it: four of them to all cities and the others to a particular city' or to cities having more than a specified population. A few of the states, without constitutional provision on the subject, have passed statutes conferring upon cities the charter-making prerogative."
The constitutional provisions vary considerably. The most important difference is between those which are self-executing and those which can become effective only after legislative action. Thus Colorado specifically declares that its home-rule charter clause is self-executing, and Minnesota forbids any city to incorporate under its provision until the legislature shall have prescribed the general limits within which the charter may be framed.
For details a few lines have sufficed the constitution-makers in some of the states, whilst in others several finely-printed pages are devoted to home-rule charters. The methods laid down for initiating a movement to frame a charter for a particular city are (1) legislative provision for an election by the citizens, (2) similar provision on the part of the city government, and
2IX, 16, 17.
3Now applies also to Kansas City; from 1900-1910 applied to St. Joseph. 4Cal., Minn., Wash.
5Ariz., XIII, 2; Cal., XI, 8; XI, 71⁄2 (applies to counties); Colo., XX, 4, 6; Md., XI-A; Mich., VIII, 21; Minn., IV, 36; Mo., IX, 16, 20; Neb., XIa, 2; O., XVIII, 7; Okla., XVIII, 3; Ore., XI, 2; Tex., XI, 5; Wash., XI, 10.
"Mich., Minn., O., Ore.
'Md. Baltimore. The provision applies also to counties generally. $2.000-Colo., Okla.; 3,500-Ariz., Cal.; 5,000-Neb., Tex.; 20,000—Wash.; 100,000-Mo. 9e. g., La. Results have been insignificant.
(3) petition for an election by a percentage of from five to twenty-five per cent. of the municipal voters that is mandatory upon government officials. All but three1 of the states specifically entrust the framing of the charter to a board of from thirteen to twenty-one2 citizens-usually freeholders-appointed by the judges of the district court in Minnesota, but elsewhere elected by the voters, sometimes at the same election at which they determine whether or not to authorize a charter3 In some of the states the time allowed the board for preparing and presenting a scheme of city government is limited, varying from ninety days to six months. On the completion of the charter a copy must usually be filed with a designated official and, frequently, published in one or more newspapers. In Ohio the clerk of the municipality must mail a copy to each elector.
As a rule, ratification by a majority of those voting thereon is sufficient for the adoption of the charter, but four-sevenths is required in two states and another requires the approval of the legislature before the charter shall go into effect; in two states it must first be submitted to the governor who "shall approve the same if it shall not be in conflict with the constitution and laws" of the state. The very apparent impossibility of the governor's having either the time or the requisite knowledge to decide intelligently whether a charter is in conflict with the constitution and laws of the state makes the latter restriction equivalent to a simple veto power. In Colorado in case the charter submitted by the board of freeholders is rejected by the people the process of electing a board and submitting a charter to the people must be repeated until one is finally adopted. Amendment of the charter is usually provided for, sometimes in very elaborate clauses; submission by the municipal law-makers or upon petition of a stated percentage of the voters is the general rule.
1Mich., Ore., Tex.
2Okla. requires two from each ward.
In case of an adverse vote on framing a charter, the election of the framers would, of course, be a nullity.
*Minn., Mo. (except St. Louis).
5Cal. No charter has been rejected.
6Ariz., Okla. Likewise in Mich. by statute.
"In Mich., by statute, the charter must be submitted to the governor.
The same is expressly permitted in Neb.