Municipal franchises

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MUNICIPAL PROGRAA

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Municipal Development in the United States ..... John A. Fairlie i

The Municipal Problem in the United States .... Horace E. Deming 36

Conclusion

We have noted the growth of urban population and the development of municipal government in the United States from the petty colonial borough to the vast metropolitan municipality of to-day. We have seen the evolution from the simple and unorganized council government to the complicated administrative machinery of municipal departments. In the process, the central direction of municipal affairs has passed from the council, and in most American cities authority is distributed and dissipated on no fixed principle between council, mayor, and State legislature, while the influence of national and State political contests in municipal elections, and the operation of the spoils system in municipal ofliceholding have served to deteriorate still further municipal administration. In recent years, however, we see certain tendencies toward a more scientific distribution of authority, toward the separation of municipal from national and State elections, and toward a more permanent and efficient subordinate service ; and while these tendencies have not as yet become widespread, yet it is along the lines already indicated that further advances of a permanent nature may be most rationally anticipated.

THE MUNICIPAL PROBLEM IN THE UNITED STATES

Horace E. Deming

Municipal government in the United States is, on the whole, less satisfactory than our State or national governments. It has been confidently claimed by many that the conspicuous failure of democracy as a form of government under the exacting conditions of our modern industrial civilization is demonstrated by the American city. In several States there have been elaborate investigations and reports by specially appointed State commissions upon the subject of municipal government, and the evils have been pictured again and again. Literally thousands upon thousands of statutes and not a few constitutional amendments have been enacted in the search for remedies. Still the evil remains with us.

Is, then, the search for a remedy hopeless? Does the democratic-republican form of government make impossible the honest, efficient, economical, progressive conduct of municipal affairs ? In Great Britain and on the continent of Europe under the widely varying governmental systems of England, France, Germany, Austria-Hungary, and Belgium, the cities are the most conspicuous examples of efficiency, economy, and progress in the field of government. In each of those countries, also, the city, as a scheme of government for the determination of matters of local policy and the administration of local concerns, is far more democratic, not only in its conception, but in actual practice, than the general government itself. The failure of municipal government in our own country, therefore, can hardly be attributed to the democratic character of our institutions. To what, then, is this failure due? In our judgment the principal causes are not difficult of statement, and in saying this we recognize that these causes are themselves the result of dr complicated with yet other causes. There is no short or easy road to the goal of efficient, economical, progressive municipal government. There is no one specific for the municipal evils from which we suffer.

A necessary condition precedent either to an intelligent comprehension of the municipal problem or to well-directed effort toward its solution is a correct conception, first, of the nature of municipal government ; and, secondly, of the proper relation of the municipality to the general government of the State.

Municipal government considered in reference to the physical area embraced within its corporate limits and to the dwellers within those limits has two chief functions : ( I ) The determination of the local public policy ; (2) the administration of the local policy, i. e., the carrying into practical effect of the local policy that has been decided upon.

Municipal government considered in reference to the general government of the State, unless charged by the State government with the administration of general laws, has, properly speaking, nothing to do with the State government save as the source from which its own corporate life and powers are derived ; and the State is under no compulsion to delegate to the municipal corporation the administration within its corporate limits of the general State laws, i. c, the carrying into practical effect within its corporate limits, of the State policy that has been decided upon. The State may and often does appoint its own agents directly for such purpose, e. g., the State Banking, Insurance or Excise Departments may administer the State laws on those subjects within the municipal limits without resort to any municipal official ; on the other hand, the State may find it convenient to delegate to the municipality the authority and duty of enforcing within it the State policy, e. g., as to the care of the insane, of the poor, the preservation of the peace. The point to be noted is, that whenever the municipality is charged with such a duty it is acting as a subordinate administrative agent of the State, and has properly no more lot or share in determining the policy of the law it is administering within its corporate limits than if directly appointed State officials were administering the same law within those limits.

The only fundamentally necessary connection, then, between the municipality and the State government is as the source from which the municipal corporation, as every other corporation, derives its corporate powers. It needs no assistance from the State to exercise its corporate powers. Its necessary connection with the State begins and ends with the grant of power to act, just as an insurance corporation once granted the power to engage in the insurance business has no need of further resort to the State to conduct its business. Where, however, the municipality is made a subordinate administrative agent of the State it is necessarily and properly under the constant supervision and subject to the constant control of the State.

We are now prepared for the statement of two of the principal causes of the failure thus far in the United States to secure efficient, economical, progressive municipal government, viz. :

The municipality is not granted sufficient power to determine for itself all matters of local public policy and to settle for itself the details of its scheme of internal local administration ;

The municipality as a subordinate administrative agent of the

State is placed partly or wholly under the supervision and control not of any State administrative department, but of the State Legislature.

If, now, we turn once more to the relatively successful experience of European cities we find that, as compared with American cities, the European cities are conspicuous examples of self-governing communities as to all local matters, and that without attempting to draw any hard and fast line of demarcation between what may be properly denominated State functions and city functions, whenever the State does exercise any supervision over the municipality, it is an administrative, not a legislative, supervision. In a broad, general sense it may be said that the European city is self-governing, that the American city is State-governed. The citizens of Glasgow govern Glasgow ; the Legislature of New York governs Buffalo.

This dual character of the city as a scheme of local government and as a subordinate administrative agent of the State has caused and still causes much confusion of mind when municipal problems are considered. There has been too often a failure to recognize the profound distinction between the two radically different functions which the city is called upon to perform in its relation to the locality upon the one hand and to the State on the other. Even when this distinction has been recognized it has usually been as a pure matter of theory; or the value of the recognition has been lost in attempts to classify municipal governmental functions and State governmental functions into separate categories in the vain and futile expectation that by so doing some rule or formula could be established, by the observance of which the State could be kept out of the local field altogether. Those impressed with the importance of preserving the supremacy of the State have been willing enough to admit as a matter of theoretical analysis of governmental powers that the city as to its purely local affairs should not be interfered with by the State, but their practical conduct is inspired by the dread that an imperium in imperio would be created if such interference were prohibited. Those convinced that the city should be assured absolute independence in the conduct of its own affairs often find it impossible in a given case to draw the line between the jurisdiction of the State and the jurisdiction of the city. For example, the State must see to it that the public health is cared for and good order preserved in every part of its territory whether within or without the corporate limits of a city ; the same may be said of public education. The duty and the right of the State to determine and enforce a general State policy everywhere within its borders in sanitary, educational, and police matters are unquestioned. One does not hesitate a moment to class these among the functions of the State government. Yet we know as a matter of everyday experience that these are among the very subjects with which municipalities are most intimately concerned and that within their corporate limits the local public policy must be based upon a higher standard and the local administration of the policy must be more elaborate in its details and more strictly enforced than is required by the State at large. It would seem, therefore, as if these wrere municipal governmental functions as well as State governmental functions ; and such is the fact.

It does not follow, however, that the State should prescribe or control the municipal policy as to the matters mentioned beyond the point required to enforce the general policy of the State at large. The State may be satisfied to require only elementary education throughout the State generally ; the city may desire high schools and free colleges ; is it a State function to decide this question ? The

State may select its own officials to enforce and administer within the city the State policy as to elementary education ; or, if it prefer, may delegate such enforcement and administration to the municipality under State supervision ; but is the State not an interloper when it goes beyond that and defines the city policy as to education of a higher grade as to which the State has no general policy whatever? The determination, in the case supposed, of the public educational policy within the municipality as to the higher grades of education is as purely a local governmental function as is the decision of such matters as street grading and paving, the height of buildings, the maintenance of parks, the construction of a bridge, the erection of a city hall, the establishment of markets.

How, then, can this dual character of the functions performed by a municipal corporation be recognized in practice so as to preserve, on the one hand, its due subordination to the State when acting as the State's administrative agent and, on the other, its local independence when determining or administering matters of local policy?

The distinction to be noted and scrupulously maintained between State functions and city functions is not in any real or imaginary difference of the two considered as governmental functions. The municipality is as truly government as the State. Its field of operation may, as we have seen, be in part identical with that of the State. In so far as it operates within this field it is performing State governmental functions ; and the State just to the extent that it has a general policy within this field applicable throughout the State may compel the municipality to adopt and enforce that policy, or, if it chooses, may select some other agent than the municipality for the purpose. But when there is no such general

State policy in force, and outside of the limits of such policy, the municipality is not properly subject to State supervision.'

The test, then, of the propriety or impropriety of any given instance of interference or control by the State in the local public policy of a city is this : Does the local policy conflict with the general public policy of the State as determined by the policy-determining authority of the State and which as such general policy is embodied in laws equally applicable to every part of the State ?

T'he application of this test will, we think, go far to remove the difficulties which are encountered in the effort to divide into categories the governmental functions of the State and of the city. It is obvious that in the nature of things a purely local function can not be the subject of a general State policy. The mere effort to embody a policy suited to a particular locality into a general law applicable throughout the State will convince anyone of the force of this statement. No truly general law can interfere in any way with a purely local concern. On the other hand, no one will dispute that a general policy embodied in a law equally applicable everywhere within the borders of the State should override any purely local policy.

A rigid application of this test would also diminish amazingly the bulk of our statute law and would reduce even more the number of proposed laws that now cumber to an extent hardly credible the desks of our legislators. During the recent session,* which wa^ exceptionally brief, of the New York Legislature more than four hundred bills were introduced affecting the purely local affairs of one city.

One of the fundamental rules — the exceptions to it are indeed rare — of sound State legislation is that it should be confined to the enactment of laws applicable alike to every part of the State's territory.

There is another fundamental principle of sound legislation, the frequent — one is tempted to say constant — violation of which goes far to explain much of the misgovernment, both State and local : The Legislature should not concern itself with administrative details.

This principle lies at the basis of the civil-service reform movement, which has wrought so great a change for the better in our governmental methods. From the beginning of our government the legislative branch has been the great usurper of power and the most dangerous to popular liberty. Not content with the determination of the public policy, it has assumed and taken over to itself the regulation and supervision of the administration of the policy. Nine-tenths of the contents of the statute books are made up of details of procedure, of minutiae of administration. And, since a statutory regulation, no matter how unfit, can only be altered by another statutory regulation, the desks of members of the Legislature groan at every session under a stupendous weight of desired and often necessary amendments to the already exaggerated bulk of laws that owe their origin to misdirected legislative activity.

Administration is not a legislative function. A Legislature is not an administrative body. It has neither the technical equipment nor is it intended to perform administrative functions. Fancy a Legislature performing the duties of a Commissioner of Education, or of Health, or of a Superintendent of Prisons. The Legislature may indeed enact laws establishing the policy of the State in matters of education, the public health; the custody of criminals, or the care of paupers, but there its functions cease. The administrative service of the State must enforce the laws as to education and public health and prisons and the chiefs of State administrative departments, not the Legislature, must supervise the administrative service. A Legislature, whether a State or a local Legislature, is intended to perform deliberative functions, to determine questions of policy, to control matters of taxation and appropriation, to devise general laws under which administrative officers may carry out in practice the policy determined upon by the Legislature. But the same body should not attempt to exercise the policy-determining and policy-administering functions.

The policy-determining body may and should enact the laws embodying and laying down the general rules for its enforcement ; the appropriate administrative head should apply those rules and be free within their limits to establish and control all the detailed regulations that in actual practice may be found necessary or proper to enforce the policy and general rules. It follows that if there be a State Department of Prisons, for example, or of Education, or of Public Health it should be clothed with the requisite power to carry out the State's policy in those matters in every part of the State without continual resort to the Legislaure ; and the cases should be rare indeed that would call for a special State law for some particular district or town. The national civil-service law is an example of legislation based upon this sound principle. The State's policy is stated clearly, and a special administrative department is created charged with the duty of carrying that policy into effect. To this administrative department is left every question of administrative detail subject to the supervision and control of its administrative chief. Its rules are devised, and, when changes are desirable, they are made with sole reference to making effective in actual practice the declared policy of the State; and, while to have any legal force or effect they must always be consistent with that policy, they may at any time be readily adapted to meet changed or unforeseen conditions. Under this wise law, without friction or any strain upon the time of the national legislators, a great administrative department in the public service of the country has been developed with the maximum of economy and efficiency. The reason is plain — there has been the minimum of legislative supervision and control. An example by way of contrast emphasizes the lesson. The Post Office Department without a statutory amendment can not consolidate certain of the postoffices. The experience of the department has demonstrated that the consolidation would save several millions in money and increase the efficiency of the service. The statutory amendment can not be had. The National Post Office Department has had a heavy annual deficit for years, largely because of such legislative control and supervision of the details of a purely administrative service.

The State Board of Charities in New York State has control under general laws of the administration of numerous institutions scattered throughout the State, with their thousands of unfortunate inmates. Recently also New York, having adopted a general policy as to the traffic in liquors, has established a State Excise Department. There is no legislative supervision and there is no friction with local authorities, yet the general laws establishing the State policy as to these matters are made by the Legislature. These are examples of the successful administration in every part of the State of general laws by the officials of a State administrative department under the supervision and control of an administrative chief. Many other examples will suggest themselves.

These examples show that efficient State supervision in matters of administration does not mean legislative supervision, and that, when the Legislature has determined the policy of the State the carrying out of that policy can be and should be intrusted to the appropriate administrative department of the State. Long, bitter, and costly political experience teaches that legislative supervision of administrative details is inefficient and cumbrous, and tends to political corruption.

One of the plainest lessons taught by the political experience of our own country and of each of the United States, as well as of other countries, is the need of this separation of the policy-determining power in the government from the policy-administering power — that the detailed regulations of the administrative service should be left to the heads of that service, that they, and not the Legislature, should be charged with the supervision and control of all matters pertaining to administration.

The observance of this rule — that the same body should not exercise both legislative and administrative functions — is of especial importance in the treatment of municipal government by the State Legislature, for municipal government more than any other is concerned with matters of administration. This is the real significance of the phrase, " Municipal government is business, not politics." Its functions, when it acts as the agent of the State for the enforcement of general laws within the corporate limits, are purely administrative ; and it is charged in addition with the administration of the multifarious details of its own local business. In the very nature of things its administrative service must often exceed many fold that of the State both in number of persons employed, in the expenditure involved, and in the multitude, the magnitude, and the intricacy of its problems. The evil effects, therefore, of the intrusion of the State Legislature into the administrative field are especially felt in the case of municipalities. These evils are still further aggravated by the fact already pointed out that the Legislature is the policy-determining branch of the State government. The decision of questions of policy gives rise to political parties. Division of opinion on questions of public policy is the only sound reason for the existence of different and contending political parties. There can be, in no proper sense, a party political question about mere administration. The national financial policy may be sixteen to one, or twenty to one, in favor of bimetallism, silver monometallism, or the single gold standard — the administration of the mint is concerned only with honest coinage. The State policy of New York may be for the deepening and widening of the Erie Canal — the enormously expensive work necessary to the carrying out of the policy is a matter of honest, intelligent, and efficient administration; partisan politics has no proper place in it. Whether or not New York City shall have an extensive system of intramural transit, undertake costly dock improvements, or establish stupendous waterworks may arouse intense partisan feeling; but, the policy once decided in favor of these enterprises, the carrying out of the policy is administrative work, not partisan politics. Not only is it true, therefore, that, whenever the Legislature enters any field of administration, its intrinsic unfitness for such work results in costly inefficiency, as, for example, when it attempts to regulate the detailed rules of court procedure, but such legislative intermeddling injects partisan politics into the place of all others most unfit for political partisanship — the public administrative service.

That legislative functions are not administrative functions and that legislative activity must in the public interest be excluded from i

the administrative field is a fundamental principle of good government, national, State, and municipal.

The importance of this principle has found abundant illustration in the long history of municipal misgovernment in the United States. Persistent legislative interference has confused and complicated the municipal problem from the beginning.

There is another element of the municipal problem to be considered. In the United States of America a city is a creature of the Legislature. Its powers are enumerated by the law that created it. It has no other powers. The Legislature gives and the Legislature takes away. The only restrictions upon the absolute dominion of the Legislature over cities, apart from public opinion, are such as may be in the State Constitution. According to the American theory the authoritative control of the city's affairs is not in its citizens, but in the Legislature. The city controls its own affairs only by sufferance of the Legislature. The real seat of authority is not in the city, but in the State Legislature. The legal validity of an act by the city, e. g., issuing its bonds, contracting for waterworks, for a sewer or a pavement, regulating the use of its streets, is not determined by the will or expressed desires of its citizens, but by the will of the Legislature as set forth in some statute. The city is not merely the creature of the legislative will, it is the helpless victim of legislative caprice.

Cities in the exercise of the powers granted them by the Legislature must not only keep strictly within the limits set by the Legislature, but thev can follow onlv such administrative methods as the Legislature prescribes. The municipal will is the mere reflex of the legislative pleasure. The Legislature may and does regulate down to the minutest detail the methods and personnel of municipal administration. This street may have a railroad, that may not ; this street shall be thirty feet wide, that one hundred feet ; this paved with asphalt, that with cobbles ; this head of a city department be elected, that appointed ; this city official have a term of three years, that one year, another an indefinite term.

Since the city possesses only definite enumerated powers, not only the city itself, but every person dealing with it, must find in the law creating it a warrant for the exercise of any power ; and since a city may only exercise one of its enumerated powers in such manner as the taw granting the power may prescribe, any one dealing with the city must examine such law at his peril. These propositions are fundamental and elementary. Is a new power necessary or desirable or a change wished for in the methods by which it is permitted to exercise any of its powers ? The Legislature and the Legislature alone can grant the new power or make the change of method.

Familiar as are these facts and elementary as are these legal propositions their tremendous consequences in American municipal history can not be exaggerated. They constitute one of the fundamental reasons for the mismanagement of our cities, for the corruption of our Legislatures, and for the lack of municipal patriotism. Whether performing purely local governmental functions or acting as the governmental agent of the State, the city in the United States is the creature of statute.

This legal subordination of the city, when acting in either character, to the central authority of the State Legislature — combined with the great difficulty often of drawing a clear line of demarcation between matters calling for the exercise of purely local govern - mental functions and matters of general State policy and the irresistible tendency of modern industrial civilization to mass population at trade and manufacturing centers, thus constantly calling into existence an increasing number of new cities and enlarging the area and the population of cities already established and consequently their field of activities — has furnished almost boundless opportunity for misdirected legislative energy. The rural district has become a town ; the town a small city ; the small city a large one ; the large city a metropolis, with startling rapidity. At each stage of growth the need of exercising new governmental activities in order to satisfy the local wants has been felt, and the Legislature has been called upon to confer the requisite power or to act directly through boards and commissions of its own appointment. At each stage, also, the administration of the general laws of the State within the city's limits and the satisfaction of the local needs have demanded increasing attention, more administrative officials, and changes of administrative plan adapted to the new conditions. The State Legislature has been called upon to devise and control this administrative development.

The cities have been governed from without, not from within ; such governmental powers as they may have are exercised not by methods and agencies selected by their own citizens, but according to the theories of outsiders. They have not been self-governing communities free to apply their own remedies to their own ills and, taught by experience, to work out an administration adapted to their local needs.

This process has been going on with accelerating speed for more than half a century, and is still going on before our eves to-dav. Both the process itself and the results of it may be characterized as an attempt by the State Legislature to conduct the municipal government. The legal position of the city in relation to the Legislature has been so helpless, its dependence upon the Legislature so absolute, and the need of frequent application to the Legislature as the real source of power has been so continuously urgent that not only does local self-government, either in the sense of the direct management of its local interests by the city's own citizens without outside interference or in the sense of the administration of its local scheme of government, scarcely exist in the United States to-day, but there is very little genuine local public spirit. This constant resort to and interference by the Legislature have grown to seem perfectly natural, and, as it were, inevitable in the conduct of municipal government. Except, however, that our senses have been dulled by long use to legislative usurpation, the invasion of our liberties would soon cease. Let us imagine State lines to be obliterated and a Legislature at Washington constantly intermeddling with the local policy and internal administration of Boston and San Francisco, Chicago and New Orleans, Philadelphia and St. Louis, New York and Omaha, and the other cities of the country, large and small. The absurdity anc) iniquity of such a course are at once evident. It violates the most cherished principles of a free government. The very idea of it is repulsive. We instinctively revolt at it and are quick to see that it is foreign to the spirit of our institutions, and that local self-government is necessary to their successful or long continuance. But what is the essential difference in principle between the case supposed and the actual facts in Pennsylvania, for example, or New York? Is our patriotism supine and inert save in supposititious cases ? Does not a Legislature in Albany constantly intermeddle of its own motion and not in response to any local need with the local policy and internal administration of the fifty or sixty cities, large and small, of New York State ? Such an abuse of power would be monstrous and repellent to every selfrespecting citizen of an English city. It would be difficult for him to grasp even the idea of its possibility. It would seem wholly unnatural and revolting to him. It should seem wholly unnatural and revolting to us.