American city progress and the law

Front matter

CLASS.

l^S"^ bookIT] \ Z. \

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Preface

This volume contains the substance of a series of lectures given upon the Hewitt Foundation at Cooper Union in the city of New York during the months of February and March, 1917. It deals with certain of the more important rules of law that are involved in some of the forward-looking movements in American cities. O Under our constitutional system neariy every so-called ^ reform mo\'ement must reckon with the law; and T municipal reforms are especially liable to be called to "^ this reckoning. For of the several important types of unit in our complicated system of government, the city , operates under the largest number of restrictions im- ' s posed by written fundamental laws. As a subordinate o agency of the state it is subject to most of those far- ^ reaching restrictions imposed upon the states by the fundamental law of the nation. It is naturally controlled also by many limitations embodied in the fundamental law of the particular state of which it is a part. And it is further subject to one and all of the usually numerous restrictions imposed by its own fundamental law — its charter.

It cannot be too greatly emphasized that the scope of this volume is limited to an examination of legal principles. In what respects does the law as it now stands facilitate or obstruct the city in its endeavor to apply this or that new policy to the solution of an existing problem? With the policy itself— whether it f^

VI

PREFACE be, for example, of home rule, or of billboard regulation, or of zoning, or of municipal ownership of utilities — we are not primarily concerned. Within the limits of this volume it would be manifestly impossible, even if it were desirable, to discuss in adequate fashion the pros and cons of the numerous controversial questions that are suggested by the topics under review. No considerable reference will be made to the theoretical, the fiscal, the political, the economic, the social aspects of the policies under discussion except in so far as the views of the courts have been predicated upon one or more of these aspects. The law is the subject of our attention.

Howard Lee McBain

Warsaw, New York August, 191 7

Contents

Chapter Page

I. Home Rule by Legislative Grant

The chief argument for municipal home rule; home rule by constitutional grant; the legal problem involved in a legislative grant of home rule; the delegation of legislative power to the corporate authorities of cities; the reference of charters to the electors; the delegation of charter-making power to the corporate authorities and the electors; legislative grants of home rule. I

Chapter I Home Rule By Legislative Grant

Congestion of population is the essential premise of city existence. Out of this premise arise economic and social problems that are manifestly localized. The city, in consequence, is a more or less natural unit of government. It is a far more logical unit than is a state of the American Union; it is even more logical than are many of the national units of the world.

In consideration of the obvious dependence of urban life upon rural activities, the city is of course not a logical unit for a completely independent government. It may be impossible to define with precision which of the problems of government within a city are inherently local in character. It seems, nevertheless, beyond dispute that there are problems that are peculiarly local. This is recognized to an extent in the naked fact of incorporation, in the mere investing of the city with legal personality. Probably no one could be found who would be hardy enough to urge that cities as corporate entities should be ruthlessly cast among our institutional discards — that their entire functions should be carried on by direct action of the state. Yet in some respects we have drifted perilously near to this, as a hasty glance at the evolution of relations between the city and the state will disclose.

The chief argument for municipal home rule

In the early days of our history municipal charters were brief and simple instruments. In somewhat general terms these charters conferred powers of local self-government. A considerable discretion both in the interpretation of these powers and in the actual working out of the scheme of city government was vested in a few prescribed authorities. It seems unnecessary to recount the steps by which all this was changed. The rule of law became firmly established that, in the absence of some constitutional provision in point, the will of the state legislature was supreme; cities enjoyed no "rights" that had to be respected. ^ From an attitude of self-imposed deference toward cities, legislatures gradually crossed over into an attitude of distrust, indifference, spoliation, and sometimes even of open hostility. Some — perhaps much — of the distrust was deser\^ed; although it must be remarked that the "guardianship" of the legislature usually left much to be desired. For the indifference there was perhaps some justification. For the spoliation and hostility there was manifestly no excuse.

This must be said also — that with the expansion of municipal functions and the consequent swelling of municipal expenditures, a very natural change came about in the concept of what a municipal charter should contain. A charter is the fundamental law of the city; and while there is probably no one who can define the term ''fundamental" as used in this connection to the satisfaction of any considerable number of persons

» McBain, The Doctrine of an Inherent Right of Local Self -Government, in 16 Columbia Law Review, 190 and 299.

Other than himself, there is no doubt that our notion of the proper scope of a municipal charter, however general it may be, has widened. \\'herever the charter-making power may be lodged, whether in the state legislature or in the local community, w^e shall probably never return to the brief municipal charters of earlier times.

However that may be, it is simply a fact that in the course of time the legislature has, by the enactment of elaborate and ever more elaborate charters and charter amendments, thrust its hands into the very minutiae of city government. It has occupied field after field that was formerly either wholly unoccupied or left to local action. It has regulated detail after detail that never should have been made the subject of charter provision. The fundamental law of New York State contains about 25,000 w^ords. The fundamental law of New York City, not including unrepealed provisions of early charters and many special laws applicable to the city, contains over 400,000 words. This is the prime fact upon which the argument for home rule for cities is founded. Bound in the innumerable impediments of complicated charter laws, cities have too little opportunity for constructive self-development. They must eternally appeal to an extraneous superior, the state legislature; and they must often be denied their requests. They must eternally fight against "interference" in their affairs, which is none the less reprehensible because it is legal.

There are, of course, those who urge that the city is in need of constant tutelage. This amounts to the assertion that the city is incapable of self-government.

It may be freely admitted that all of our units of government show occasional, if not indeed frequent, appearances of political incapacity. It may be admitted also that in many instances cities have been protected against themselves by state legislature. But the homely fact is that while in the fluxes of our politics state governments are sometimes superior to city governments in standards of civic righteousness and ability, they are also sometimes grossly inferior in these standards. In the face of such fluxes tutelage may be needed today and protection against tutelage, tomorrow. By and large, the capacity of the city for self government is doubtless measured directly by our capacity as a people for creating and operating democratic institutions.

Home rule hy constitutional grant

Whatever general arguments may be advanced in opposition to the plan of extending larger powers to cities, home rule is arriving fast. One- fourth of the states of the Union have by constitutional provision already conferred upon some or all of their cities the power to frame and adopt their own charters. ^ In a number of other states there is active agitation for a similar constitutional grant. It is more important to face this fact than to discuss the pros and cons of home rule as a policy.

In most of the twelve states that have adopted this system, the locally made charter is framed by an elected board or commission and submitted to a vote of the

2 Missouri (1875); California (1879); Washington (1889); Minnesota (1896); Colorado (1902); Oregon (1906); Oklahoma (1908); Michigan (1908); Arizona (1912); Ohio (1912); Nebraska (1912); Texas (1912).

people. Amendments are also made subject to a referendum. But the plan of granting home rule by constitutional provision has produced some unhappy consequences. It is easy enough to say that cities may adopt charters for their ''own government," or regulate their "municipal affairs," or exercise "all powers of local self-government," but what do these undefined phrases mean? \\'ho shall decide w^hether this or that specific matter is a proper subject for regulation and control by a municipality? And where a state law covers the same subject matter as a charter provision, who shall declare whether this matter is one of state or of local concern? It is the courts that have been saddled with the almost impossible duty of defining the vague and uncertain terms in which these constitutional grants of power have been made, and out of this situation a very considerable body of complicated case law has developed.^ It may well be asked whether a grant of home-rule powers actually necessitates so radical a step as the delegation of charter-making authority. In answer to this question several obser\^ations may be made. In the first place, it is difficult to see how any substantial grant of self-governing powers could be made without giving cities the power to alter the elaborate and often highly restrictive charters under w^hich many of them are operating. In the second place, as already remarked, our concept of the proper scope of a charter has certainly expanded. A grant of power to the people of a city is not necessarily identical with a grant to the corporate authorities of the city. A fair-sized charter,

' For an analysis of the numerous cases, see McBain, The Law and the Practice of Municipal Home Rule.

a local fundamental law, setting the metes and bounds within which these corporate authorities must operate, is doubtless so desirable that it may be said to be indispensable. In the third place, it is practically impossible in the usual modern charter to consider the powers granted as something separate and distinct from the organization of the government. Few powers are granted to the city as a city ; most powers are conferred upon specifically designated corporate authorities. In other words, powers are distributed with direct reference to the organization provided ; and the organization is created w^ith direct reference to the powers conferred. It is practically inconceivable, therefore, that a city could enjoy any considerable measure of home rule unless it were competent to alter the organization of its government, which means inescapably that it must be endowed with some portion or the whole of the charter-making power.

The legal problem involved in a legislative grant of home rule

It is well known that the attitude of state legislatures toward cities has undergone something of a change within comparatively recent years. It is probable that many legislatures would be willing to grant a considerable measure of self-governing power if they considered that they were competent to do so under the usual terms of our state constitutions. A grant of home rule by statute rather than by constitutional provision has many arguments in its favor. Imperfections in the machinery for the exercise of such power could be much more easily rectified. The scope of matters to be regulated by the locally made charter could be defined by the legislature instead of by the courts; and, after all, it seems clear that the determination of the actual extent of powers to be exercised is wholly a question of policy and not at all a question of law. As such, it is a question calling for legislative rather than judicial settlement. When it is considered, moreover, that our methods of dealing with governmental problems must of necessity be subject to change — that a function which at one time may be regarded as primarily one of local concern may at another time call for regulation and control by the state — is it not apparent that readjustments between the city and the state in the matter of their respective spheres of control are from time to time indispensable? Is it not also apparent that such readjustments may be more easily and more satisfactorily effected by the amendment of a statute rather than by the process of constant tinkering w4th the state constitution? On the whole, it seems not to be denied that if an adequate measure of home rule for cities can be secured by legislative grant, this would be preferable to the plan of cementing a possibly large but unquestionably vague grant of power in the fundamental law of the state.

The question before us, then, is w^hether the legislature, in the absence of a specific grant of authority, has the constitutional power to institute this reform for which there is so much clamor. This question brings up for consideration a fundamental rule of American constitutional law — the rule which declares that the legislative power that is vested in two designated houses of legislation may not be delegated. The books are full of cases involving the application of this rule in one connection or another. It would be impossible, even if it were desirable, to attempt here anything like an exhaustive analysis of all that the courts have said upon this subject.* A few points, however, are of especial interest.

If it be conceded that a grant of adequate home rule to cities necessitates a devolution of some portion or the whole of the charter-making power, it is manifest that this power must be conferred either upon some ordinary or specially chosen corporate body of the city, or upon the local electors, or upon a combination of the two. This being so, it is of importance to consider the rule of non-delegation of legislative power, first, in its application to the powers that may be delegated to the corporate authorities of cities, and second, in its application to the reference of legislative charters to the local voters for acceptance or rejection.

The delegation of legislative power to the corporate authorities of cities

It has been universally conceded that the legislature may delegate to the corporate authorities of a city the power to enact by-laws and ordinances which have the force of law — which are, indeed, nothing more nor less than laws, regulating, as they often do, precisely the same subjects that are regulated by acts of the legislature itself. The practice of delegating such power as this is of ancient origin, and it is well-nigh inconceivable that a city without such power could operate as a

* For a more detailed discussion of this entire subject, see McBain, The Delegation of Legislative Power to Cities, in Political Science Quarterly, XXXII, pp. 276 and 391.

municipal government at all. Here, then, is at least one universal exception to the rule against the delegation of legislative power. Nor have the courts been at any pains to define or delimit the scope of subjects that might be given over to regulations by local ordinance. The legislature has been at complete liberty to cover this or that subject by statute or to delegate control over it to the municipal authorities.

In a few cases, however, it has been held that the legislature may not delegate to the corporate authorities of cities the power to alter in any respect the provisions of the charters under which they are operating. ^ Two recent New York statutes are of especial interest upon this point. One of these, the so-called home rule act of 1913,6 apparently attempted to confer upon cities powers not only in addition to those already granted by their charters but also in conflict with existing charter limitations. This law was so broadly drawn and embodied so much of uncertainty that the cities of the state did not hasten to avail themselves of the opportunities which it may possibly afford. However, in the opinion of the attorney general of the state ^ the law did not intend to allow cities to regulate all matters relating to the conditions and relationships of the local corporate authorities or to delegate the power to change the form of government of the city. Further than this, the view was expressed that ''such power would he in-

5 Haywood v. Mayor, etc. of Savannah, 12 Ga. 404 (1853); State v. Field. 17 Mo. 529 (1853); Dexheimer v. City of Orange, 60 N. J. L. iii (1897). See also Attorney General ex rel. Booth v. McGuinness, 78 N. J. L. 346 (1909).

^ Report of the Attorney General of New York, 1913, II, p. 375.

effectual if attempted to he granted.'^ In other words, it was evidently the attorney general's opinion that the power to amend the local charter and thus to repeal a state law had not been granted by this law and could not be constitutionally delegated.

The so-called optional city government law, enacted by the legislature of New York in 1914,^ has also been under review by the attorney general of the state in respect to this same point. This law, which allowed any city of the second or third class to adopt any one of six forms of government, clearly vested in the corporate authorities of such city the power to repeal by ordinance certain portions of the old charter that were not directly repealed by the adoption of the new law. The attorney general held that it was beyond the power of the legislature to ''authorize a municipal corporation to repeal by ordinance a statute of the state." There was, in consequence, insuperable objection ''to any attempt to delegate to the council of such city the power to say which part of the existing charter shall be retained and which part of it rejected."^

Now there is no question that the legislature is fully competent to make the charter of a city a very brief instrument, vesting in the corporate authorities created by such instrument large powers to elaborate the local government by ordinance. In the case of existing charters the legislature may certainly accomplish this by direct repeal of specified charter provisions. Why, then, may not the legislature vest in the local authorities of a city the power to repeal designated provisions

• Opinion of the Attorney General of New York, January 11, 1916.

LEGISLATIVE HOME RULE II

of the charter under which the city is at the time operating? "It makes no difference," says the attorney general of New York, "whether they [city charters] contain provisions which the legislature might in the first instance have delegated the power to enact to the local council. The answer to that is the legislature did not delegate the power in the existing charter, but made its own special provisions." If one regards the substance of things, this argument is certainly somewhat attenuated. It amounts to this — that having occupied a particular field through the medium of a charter provision, the legislature cannot thereafter retire from that field by delegating to the local authorities power which it might in the first instance have delegated with impunity.

Of course it is clear that the corporate authorities of a city would never be vested with power to repeal a charter in toto. Only a partial power w^ould be conferred. Otherwise, since whatever the corporate authorities enact is in the nature of ordinance, and therefore subordinate, the distinction between the charter and the ordinances of the city would be completely destroyed. Something of the charter enacted by the legislature would have to remain, even though it were nothing more than the pro\'isions creating those corporate authorities who were empowered to repeal the rest of the charter, and thus reduce its provisions to the status of local ordinances. State constitutions occasionally contain regulations that are expressly made subject to alteration by the legislature. WTien the legislature acts under an authority of this kind it does not, strictly speaking, amend the constitution ; it merely transforms a subject of constitutional regulation into one of statutory regulation. But if the legislature were empowered to do this with every provision of the constitution, there would no longer be any distinction between the constitution and the statutes of the state. And so it would be in respect to the alteration of charters by action of the corporate authorities.

Over against the few opinions of record in which it has been denied that the legislature is competent to authorize the local authorities to transform specified provisions of a charter into ordinances, may be set many important instances in which the legislature has actually exercised this competence without any resulting judicial controversy. If, for example, this rule of law is sound, then numerous provisions of the present building code of the city of New York are void ; for the charter which created Greater New York in 1897 expressly provided that upon the enactment of a building code by the municipal assembly (now the board of aldermen) all statutes relating to buildings should be repealed; but "such repeal," declared the charter, "shall not take effect until such 'building code' shall be established." ^^ Many other provisions of this charter were made subject to transformation into local ordinances. ^^ Moreover, when the charter of the city was fundamentally revised and re-enacted in 1901, no less than fifty-six sections were expressly scheduled as "sections to remain in force until changed by the board of aldermen." ^^ 5q^ 2X^0, when the charter of the city of

^^ Laws of New York. 1897, III, sec. 647.

^^ Salaries, for example, could be fixed by ordinance "irrespective of the amount fixed by this act." Ihid., sec. 36. ^2 Laws of New York, 1901, IH, p. 663.

Boston was remodeled in 1909, the mayor and city council were \'ested with far-reaching power, subject to certain specified exceptions, to reorganize the administrative departments of the go\'emment, and to redistribute powers regardless of unrepealed provisions of the existing charter. ^^

Instances might be multiplied, but these are doubtless sufficient. If there exists in the body of our constitutional law a rule that the corporate authorities of cities may not be granted the power to reduce specific provisions of a municipal charter to the grade of ordinances, it is passing strange that this rule has escaped attention in the important instances mentioned. The only explanation is that it has been applied in too few cases and rests upon too insecure a foundation in reason to warrant the assertion that it is an established rule of law.

There is probably no doubt that, with the legislative practice in this regard fairly established, a considerable measure of home rule could be granted to cities by vesting in their corporate authorities the power to regulate by ordinance certain matters that are now regulated by charter pro\ision. This would undoubtedly be a means of simplifying some of our overgro\\Ti city charters. But if this policy were adopted only upon a niggardly scale, it would scarcely satisfy the reasonable demands for municipal home rule. If, on the other hand, it were adopted upon an extensive scale, it would run counter to the prevailing notion that the corporate authorities of a city ought to be held in the leash of a fair-sized fundamental law. As has been said, home rule for

" Acts and Resolves of Massachusetts, 1909, ch. 486, sec. 5.

cities does not necessarily imply that large unrestricted power shall be placed in the hands of a few corporate ofificers. Many earnest advocates of the principle of home rule would hesitate to urge that the charter of a sizeable city be decreased to a document of a few pages, and that enormous powers be vested in the few authorities established by this greatly abbreviated fundamental law.

It is nevertheless true that, so far as the practice of our legislatures is concerned, the corporate authorities of cities have not infrequently been vested with power to transform specified charter provisions into ordinances subject to their control; and not only has the competence of the legislature to delegate such power been seldom questioned but it can also be supported by considerable force of logic. Strictly speaking, this practice cannot be referred to as a delegation of the charter-making authority; it is rather the delegation of power to unmake parts of the charter. The practice is, however, of obvious interest, even though not of controlling influence, in any consideration of the competence of the legislature to delegate the charter-making power to cities.

The reference of charters to the electors

It is a well-knowTi fact that in numerous instances legislatures have submitted laws for approval or rejection by the voters. Such laws have sometimes been submitted to the voters of the entire state and sometimes to the voters of local units, such as counties, towns, and cities. Many of these laws have been contested before the courts upon the ground that, in providing that a law shall depend for its existence or enforcement upon the will of the voters as expressed at the polls, the legislature in effect delegated its own power of legislation. Without attempting to make anything like a complete examination of all the intricacies involved in this proposition, it seems obvious that the competence of the legislature to refer to the local voters at least certain kinds of laws can be readily sustained. For example, it is universally conceded that the power to prohibit or regulate the sale of intoxicating liquors, or to levy a tax or issue bonds for a local public improvement can be delegated to the corporate authorities of cities, to be exercised by ordinance. But since these authorities are merely the agents of the local voters, surely there can be no logical reason why the power to accept or reject a liquor law or financial law may not be delegated directly to the local voters. It is simply a fact that the reference of such laws to the local voters has been almost universally upheld, although it ought to be said that not all of the courts have relied solely upon the line of argument thus indicated.

There is, however, another class of laws which the courts have permitted the legislature to refer to the local voters for acceptance or rejection. These are municipal charters and charter amendments. Almost from the beginning of our history as a nation, legislatures have on occasion allowed municipal voters to ratify or reject charters and similar laws affecting them. This practice has been far more prevalent in some states than in others, and although it has been far from uniform in any state — has, indeed, been far more excepl6 CITY PROGRESS AND THE LAW

tional than otherwise — it has, nevertheless, had a considerable vogue.

Most of the diverse arguments that have been put forward by the courts in support of referenda on charters and analogous laws have been directed to showing that in voting for or against such a law, the voters do not in fact participate in the making of the law and do not, therefore, exercise legislative power. It seems wholly unnecessary to attempt an analysis of all of the arguments that have been employed to this end. Perhaps the principal of these has been that in accepting or rejecting a charter or similar law, the voters do not act as legislators but as corporators. Their action, say the courts, is precisely the same as the action of a group of natural persons who accept or reject articles of incorporation for the carrying on of some private undertaking. From the historical point of view there is something of force in this argument. From the modem point of view it is manifestly the thinnest sort of fiction. The charter of a private corporation is a contract between the state and the incorporators. No group of private persons can be compelled to incorporate, and, once being incorporated, the obligation of their contract with the state cannot be impaired by subsequent legislation. The charter of a municipal corporation is not a contract between the state and the voters of the city. Such a charter can be forced upon the community against its will, and, once in operation, it can be 'Violated" by the legislature without the slightest regard for the wishes of the people of the locality. It is impossible to follow with conviction a line of argument which asserts, on the one hand, that the legislature may allow the voters of a city to accept or reject a municipal charter for the same reason that it may allow persons to accept or reject a private charter of incorporation; but that, on the other hand, the legislature may compel the acceptance of a municipal charter for the reason that such a charter lacks the most essential element of a private charter; namely, its contractual character. In view of the mandatory character of most of the laws regulating the governments of modem American cities, the average voter would doubtless be surprised indeed to discover that he has any capacity as a corporator of the city. As a citizen, as a voter, as a taxpayer, as a person, he of course has rights which he may defend before the courts under the guaranties of the fundamental laws of the state and nation. As a corporator of the city in which he lives, he obviously has no such rights.