UC-NRLf; B J s 4 \ iliiiiii *i Q a ^B 50 Single Num >ers, 25c. •No. 4. , July, 1900. THE BONDAGE OF CITIES Parsons. WITH THE REASONS FOR MUNICIPAL LIBERTY, CONSTITUTIONAL AMENDMENTS AND STATUTORY ENACTMENTS LREADY ADOPTED TO SECURE SELF-GOVERNMENT IN LOCAL AFFAIRS, AND, SUGGESTIONS FOR IMPROVED AMENDMENTS AND STATUT ES AND FOR A MODEL CHARTER. : No Copyright. On the contrary, an invitation is extended to all to do their utmost in every -way to spread the truths contained' lu the following pages. Newspaper* and maga«ines are at liberty to quota as freely as they will, due credit only being askt. PUBLU.HT BY C. K. TAYLOR 1520 Chestnut Street, Philadllphia, Pa, The Bondage of Cities A REPRINT OF CHAPTER III, (WITH ORIGINAL PAGING FROM THE WORK EN- TITLED "THE CITY FOR THE PEOPLE," ON THE SUBJECT OF HOME RULE FOR CITIES, SHOWING THE BONDAGE OF CITIES TO STATE LEGISLATURES, WITH A DISCUSSION OF METHODS FOR OBTAINING FREEDOM AND SELF-GOVERNMENT. The whole subject REVISED and NfcW MATTER of much importance added. BY FRANK PARSONS Lecturer in Boston University Law School; Member Boston Bar; Author of Parsons' Edition of Morse on Banks and Banking ; Editor of May on Insurance, Perry on Trusts, and other legal works ; Professor of His- tory and Political Science, and Dean of Kxtension Lecture Department College of ocial Science President National League for Promoting Public Ownership of Monopolies; Member International Co-Operative Union, American Social Science Association, and National Institute of Art, Science and Letters ; Author of f The World's Best Books," "The Power of the Ideal," "The New Political Economy," " The Telegraph Monopoly " Chapters in "Municipal Monopolies" of the Ely Economic Series, etc., etc. No Copyright. On the contrary, an invitation is extended to all to do their utmost in every way to spread the truths contained in the following pages. Newspapers'and 'magazines are at liberty to quote as freely as they will, due credironly being asked. PUBLISHT BY C. F. TAYLOR 1520XHESTNUT STREET, PHILADELPHIA, PA. CD 1^ Lan- guage is a growth rather than a creation. The growth in our vocabulary is seen in the vast increase in size of our dictionaries during the past cen- tury. This growth is not only in amount, but among other elements of growth the written forms of words are becoming simpler and more uniform. For example, compare English spelling of a century or two cen- turies ago with that of to-day ! It is our duty to encourage and ad- vance the movement toward simple, uniform and rational spelling. See the .recommendations of the Philological Society of London, and of the American Fhi^oicgical Association, and list ot amended spellings, publisht in the Century Dictionary (fallowing the letter z), and also in the Standard Dictionary, Webster's Die- ^ tionary, and other authoritative works on language. The tendency is to drop silent letters in .bwre of die mott flagrant instances, as ugh from though, etc., change ed to t in most places where o pronounced (where ittloes not affect the preceding sound), etc. The National Educational Association, consisting of ten thousand teachers, recom- mend the following : "At a meeting of the Board of Directors of the N. E. A. held in Washington, D. C., July 7, 1898, the action of the Department of Superintendence was approved, and the list of words with simplified spelling adopted for use in all publications of the N. E. A. as follows : tho (though); program (programme); altho (although); catalog (catalogue); thoro (thorough); prolog (prologue); thorofare (thoroughfare); decalog (decalogue); thru (through); demagog (demagogue); thruout (throughout); pedagog (pedagogue). "You are invited to extend notice of this action and to join in securing the general adoption of the suggested amendments— IRWIN SHEPARD, Sec'y." The publisher of this Series feels it a duty to recognize the above tendency, and to adopt it in a reasonable degree. Chapter III. HOME RULE FOR CITIES. THE BONDAGE OF CITIES MUST CEASE. Our Jaw classes cities with women as having no right to self- government — a fact which may be regarded as affording legal grounds for the custom of calling a city "she." A few illus- trations will show how absolutely cities and towns are sub- jected to the control of the state legislature. 1. One of the strongest illustrations of the severe State paternalism to which our cities are subject is the fact that a city of half a million people cannot connect two of its own public buildings with an electric wire, the city being unable to obtain legislative permission against the opposition of the electric companies. Boston is the city of which I am speak- ing. A little while ago she wished to run a wire from the City Hall to the Old Court House, either over or under the little back street 50 or 60 feet wide that lies between the two buildings. The object was to enable the city to light the Old Court House from the dynamo in City Hall. A bill was in- troduced for the purpose, accompanied by petition of the mayor of Boston (House Bill No. 747, 1898), but the electric companies did not wish municipalities to use a dynamo in a public building to operate lights outside of the building, and the Legislature refused to pass the bill, and Boston cannot run a wire between two of her own buildings over or under her own street. A municipality has no independent initiative of its own, and it is the only human thing in America that hasn't got it. The nation has a right of independent initiative in national affairs, the state in state affairs, and the individual in individual affairs, but the municipality must have permission from the legis- lature for everything it does. 1 If Portland wants to establish 1 It is bad enough to hold life as a tenant at will, but even that might be endurable if the ciiy were allowed to have the attributes of a living being while entrustgd with existence. But, to have no power of self activity; to be required to get permission to move /—that is unbearable. 387 46&0G4 S8& THE BONDAGE OF CITIES a gas plant, she must consult witn Augusta, and Bangor and Dickey ville, and all the other towns and cities in the state, and get the consent of their representatives in the legislature. If Salem, learning of the great success of municipal telephone exchanges in other countries, desires to build such a system for herself, she must ask authority of a lot of men from Bos- ton, Worcester, Springfield, Osterville, Lenox, etc., who mostly know nothing about Salem, or municipal telephones and are much more apt to feel an interest in the Bell Tele- phone Company than in a municipal exchange in Salem. When Syracuse wants to build an electric light plant, or a sub- way, she must ask permission from a body of men representing Albany, Buffalo, Rochester, New York, Brooklyn, Birming- ham, Rynex's Comers, Smith's Mills, Phillips Creek, Pool- ville, and all the other 3,000 cities and towns of the state, and representing also, even more accurately perhaps, a large num- ber of powerful corporations, whose interest it is to do all in their power to prevent Syracuse or any other city or town from establishing a municipal lighting plant, or taking any steps in the direction of a municipal street railway. Such undertakings are clearly beyond the individual sphere. Each individual cannot build a street railway, or a telephone system for himself. And they are not 'state interests. Albany and Buffalo have nothing like a common interest with Rochester in the water, gas, electric light, or telephone system of Roches- ter, and should have nothing like equal powers of decision in respect to the Rochester gas works, or telephone plant; yet, under the present system, Buffalo and Albany have more to say as to what shall be done with Rochester telephones and gas pipes than Rochester herself. Yet the interest is dis- tinctly local, and the final power of decision and right of con- trol should be local, subject only to broad general pro- visions, to give the people a firm grasp of the city government, and secure deliberation, harmony and just dealing. 2. The legislature has such power over municipalities that it can plan and construct the public buildings of a city without reference to the wishes of the citizens, and then compel them to pay for the work. In 1870, the legislature of Pennsylvania TO POLITICIANS AND MONOPOLISTS MUST CEASE. 389 arrived at the conclusion that Philadelphia should have a new city hall; so it passed an act to that effect, naming certain gen- tlemen as commissioners to erect the building, with absolute power to create debts for that purpose, and require the levy of taxes on the city for their payment. The act was held consti- tutional, 1 and for about a quarter of a century the people of Philadelphia have been paying enormous sums, millions more than the buildings were fairly worth, for work they did not au- thorize, and over which they have had no control, altho it con- sisted simply of the construction of municipal buildings for their own city — a remarkable example of the intense patern- alism (to use the mildest word that suggests itself) to which the law subjects municipalities. It would be deemed a very strange thing for the legislature to say to an individual citizen: "Mr. Smith, your old brick house is getting a trifle small for "you and your servants, and isn't very handsome anyway ; you "are able to build a palatial marble dwelling, and I guess we'd "better have it done. I'll plan the thing, and see it con- structed to suit my taste, and you can pay for it, as you are "the one who will have to live in it." The courts would not allow the legislature to act in this way toward a single indi- vidual, but a million individuals who constitute a city must be left, in such a case, entirely at the legislative mercy. 3. Another proof of municipal infancy is the fact that the legislature may compel a city or town to pay a claim made against it, altho such claim has been denied by the courts and may have no foundation in law or justice. 2 If the legisla- ture ordered Mr. Smith to pay Mr. Jones the amount of a claim made by Jones upon Smith, which had been tried in the courts and rejected, or if the legislature should order the Boston & Albany, or the Pennsylvania Railroad, or the Adams Express to pay such a claim, the courts would unhesi- tatingly declare the act unconstitutional; but a million men in a public corporation have almost no rights which the legis- lature is bound to respect. P) Peridns v. Slack, 86 Pa. 270 (1878). C 2 ) 13 N. Y. 143. If the claim wore manifestly without any foundation, lofral or moral, the legislative order might be held void ns amounting to taxa- tion for private purposes (see G4 N. Y. 92, 99). But, if the baselessness of the claim does not appear clearly on the face of the facts before the court, the legislative order will stand. 390 MUNICIPAL LIBERTY. 4. It is held that the legislature may take city water works, or gas works, or other municipal properties entirely out of the hands of the city, and give the management of them to state officers. 1 5. A franchise granted by the legislature to a city or town is not a contract. A franchise to establish, own and operate ferries, water works, gas works, electric plants, street railways, etc., is a franchise if granted to an association of stockholders constituting a private corporation, and is protected by the Federal Constitution, but is not a franchise if granted to an association of individuals constituting a city, and is not pro- tected by the constitution, or anything else, but may be taken without compensation at the pleasure of the legislature. 2 6. The charter of a private corporation is held to be a con- tract within the constitution, but the charter of a public cor- poration is not. Municipal corporations are creatures of the legislature. They have only such powers as may be given to them by the legislature, which may, at its pleasure, alter, abridge or annul their powers and privileges, divide them, or consolidate two or more of them into one without their assent, attach a condition to their continued existence, or abolish them completely. 3 Imagine Congress passing an act to annex Rhode Island to Connecticut, or divide ]STew York state, or declare that Illinois shall no longer be a state! Yet such an act enforced without the assent of the states affected would be an apt parallel to the arbitrary powers possessed and exercised by many of our legislatures in respect to cities. These illustrations of municipal dependence seem sufficient to justify the conclusion that our cities are in bondage — sub- ( J ) 44 Oh. St. 348; 7 Houst. (Del.) 44; some courts hold otherwise— see below. ( 2 ; East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511. Legisla- tive act taking away the Hartford ferry justified on the broad ground that the grant of a franchise to a municipality is not a contract. See also 77 Va. 214, and compare 10 Barb. (N. Y.) 223. (-) See 102 U. S. 472, 511; 93 U. S. 266; 4 Wheat. 518; 74 N. Y. 161, 166; and Judge Dillon's famous legal text book on Municipal Corporations, §§54, 64, 85. 89.— the highest authority on the subject. A municipality Is not only a creature of enumerated powers, but those powers are for the most part strictly construed. It Is held tliat a munlclpaf corporation can exerciae no powers except those granted to it In express words, or necessarily or fairly implied in or incident to the powers ex- pressed, or indispensable to the declared objects and purposes of the cor- poration, and "any reasonable doubt concerning the existence of the power is resolved by the courts against the municipal corporation, and the power la denied." Von Schmidt v. Widber, 105 Cal. 151, 157. LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 391 ject to external control in regard to matters which they ought to have a right to decide for themselves. A state legislature has no more right to impose its judgment upon a city in respect to the local business affairs of that city than the Federal Gov- ernment has to impose its judgment upon a particular state in regard to the local affairs of that state. There is no more sense or justice in requiring Baltimore to consult all the cities and towns of the state as to what she shall do with her street railways than there would be in requiring Mrs. Deland to con- sult all the women in Boston and get permission before she puts new paper on her hallways, or makes any other change in her housekeeping. THE REASONS FOR ALL THIS. The reason sometimes given for the legislative power of strangling a municipality is that it was created by the legisla- ture, and as the breath of life was breathed into it by the state authorities they have the right to withdraw the said breath at their pleasure. On similar grounds a parent would have a right to murder his child, and we should go back to the Roman plan of placing the power of life and death in the head of the family. Moreover, private corporations, as well as public, are created by the legislature and if creation confers a right of limitless modification even to dissolution in the one case, why not in the other? Finally, cities and towns are not created by the legislature. They may exist and frequently have existed without any legislature, and before there was any legislature. Their existence gives them the right of local self government. People living together in the same locality have a right to associate themselves for the accomplishment of common purposes, and to control their local affairs without ■dictation from distant cities and without permission from any legislature. The legislature may use cities and towns to ac- complish state purposes, and in that relation may properly mold their governments and functions; but it has no more right to deprive them of freedom and self control in local mat- ters than congress has to deprive a state of its freedom and self control in internal concerns. 392 THE CITY FOR THE PEOPLE. The real reason for the present state of municipal law appears to be a failure of the law so far to embody in its phil- osophy, with sufficient fullness and precision, the fundamental distinction between the functions of cities and towns as state agencies for enforcing state laws, and their functions as local business concerns. When the principles of the Common Law were crystalizing, the functions of municipalities were almost entirely confined to the first class, and the doctrine naturally grew up that municipalities were merely creatures of the state, doing a part of the state's work, and subject entirely to the state's orders — a doctrine fairly reasonable as long as muni- cipal functions were confined to keeping order, administering justice, attending to education and other state interests, but wholly inappropriate in reference to the ownership and man- agement of water works, gas works, electric light works, street railway systems, lodging houses, wharves,, ferries, printing establishments, telephone exchanges, baths, and other local business enterprises that have crept into the municipal field. The precedent-loving law has clung to the rule of former times, bending a little in the strong hands of two or three liberal courts, but with no due regard as a rule for the modi- fication required by the changes of modern life. "We may set it down as a reasonably certain conclusion, I think, that the sweeping subjection of cities to legislative authority that characterizes our law appears to arise from the failure to distinguish between the two spheres of municipal activity. So far as the municipality is an agent of the state to carry out state policy in respect to state interests, such as education, order, administration of justice, protection from disease, etc., large control by the legislature is right; but so far as the municipality is a local co-operative business concern, the legislature should have no more power over it than it has over any other individuals or corporations engaged in similar business. LIMITATIONS ON THE LEGISLATURE. In spite of the law's rigidity, and the powerful trend in the past toward state absolutism in municipal affairs, some notches have been cut in this legislative omnipotence. HOME RULE FOR OUR CITIES. 39S 1. Taxation must be for a public purpose, and one that per- tains to the district taxed. 2. The legislature cannot deprive a city of the use of ite private property, such as water works, gas plants, etc. Even if a city or town is abolished, such property rights are not de- stroyed but go to the state in trust for the inhabitants of the municipal area. The management of the property may be- taken away, but not the use of it. 3. A few courts hold that the legislature cannot take away the management of "private" property from the municipality,, there being an inherent right to local management and control of local business, and local selection of the officers who are to administer such business. Inherent Right of Local Self-government. In People v. Hurlbut, 24 Mich. 44 (1871). Chief Justice Campbell and Justices Cooley and Christiancy held that the legislature could not appoint a board of public works to control the public building's, pavements, sewers, water works, engine houses, etc., in the city of Detroit, altho no express provision of the constitution neg-atived the act. The court held that there is "a clear distinction between "what concerns the state and that which does not concern more- "than one locality." A municipal government has two sets of functions. It is a state- agency to attend to state affairs in its locality, and it is a municipal agency to attend to business of a local nature, such as water works r fire service, etc. In its sphere of state agency, the legislature may- control it except where express constitutional provisions may inter- vene. But the people of a city or town have a right to the manage- ment of their local concerns, and the selection of their local officers- who are to control such concerns, and this right cannot be taken from them by the legislature, for it rests upon the principle of self-government, which is inherent in free institutions, and un- derlies the constitution as the purpose for which the constitution was established. Chief Justice Campbell and Justices Cooley and Christiancy gave* the matter great consideration and rendered separate opinions all based upon the principle that local self-government of local affairs- is an essential part of our system. "The history of the country "and the nature of our institutions" show "the vital importance- "which in all the states has so long- been attached to local muni- cipal governments by the people of such localities, and their rig-hts> "of self-government." Chief Justice Campbell distinguishes People v. Mahaney, 13 Mich- 492, where the validity of an act establishing state control of city 394 THE BONDAGE OF CITIES police is sustained, saying the question was "whether the police "board is a state or municipal agency," and added, "I think it is "clearly an agency of the state government There is a ""clear distinction in principle between what concerns the state and "that which does not concern more than one locality There "is no dispute concerning the character of the public works act. "Its purposes are directly and evidently local and municipal." He decided that the municipality could not be deprived of the right to choose the men who should manage its public works. "Our con- stitution," he said, "cannot be understood or carried out at all, "except on the theory of local self-government The "confusion existing on this subject has arisen from the custom "prevalent under all free governments of localizing all matters of "public management as far as possible, and of making use of local "corporate agencies whenever it can be done profitably, not only ""in local government, but also for purposes of state." (pp. 81, 84, •89.) Judge Cooley made an extensive review of the pertinent historic facts and general principles, and concluded against the "legislative "power to appoint for municipalities the officers who are to manage "the property, interests and rights in which their own people are "alone concerned. The municipality as an agent of government, is "one thing; the corporation as an owner of property is, in some "particulars, to be regarded in a very different light. . . In the "case before us, the offices in question involve the custody, care, "management and control of the pavements, sewers, water works, "and public buildings of the city, and the duties are purely local. "The state at large may have an interest in an intelligent, honest, "upright, and prompt discharge of them, but this is on commercial "and neighborhood grounds, rather than political." (pp. 103, 104, 105.) In Board of Park Commissioners v. Detroit, 28 Mich. 228 (1873), where the legislature appointed state officers to buy land and im- prove it for a park for, and at the expense of, the city of Detroit, Judge Cooley said: "We affirm that the city of Detroit has the "right to decide for itself upon the purchase of a public park. . . . "It is as easy to justify, on principle, a law which permits the rest "of the community to dictate to an individual what he shall eat, "and what he shall drink, and what he shall wear, as to show any "constitutional basis for one under which the people of other parts "of the state dictate to the city of Detroit what fountains shall be "erected at its expense for the use of its citizens, or at what cost "it shall purchase, and how it shall improve and embellish, a park "or boulevard for the recreation and enjoyment of its citizens." North Adams hospital may establish a school for training nurses. Beverly, draw in Essex bridge may be relocated. Boston, Aberdeen street may be laid out and occupied as a public highway. Boston may accept legacy of John L. Randidge. Boston may grant a pension to John Rogers. Boston may pay a sum of money to widow of C. L. Boston may relocate Chilmark street. Boston may pay a sum of money to widow of John (several such acts). Boston, sale of old public library building. Boston, extension of Cove street. Brockton, name of Franklin Meth. Epis. Chapel changed to the Franklin Meth. Epis. Church. Brockton, Taunton and Brockton St. Ry. may operate cars in, Edgartown, taking of eels in oyster pond in, water supply for. New Bedford, Board of Public Works of, may elect a clerk. Northfield, a bridge to be constructed in, Somerville, appointment of certain members of fire depart- ment in, Springfield, salary of justice of police court in, Wayland, bridge in may be removed. Orange, the Orange & E. Street Railway may construct its rail- way in, These are from '97. A few from the long lists of '98 will show that the quality is about the same from year to year. Boston may pay a sum of money to (many such acts). Boston, to change the name of Penitent Female Refuge, Boston, relative to Bennington street in, Boston, widening of Rutherford avenue. Boston, relative to alleys in, Boston may finish the construction of its public parks. Bourne, the Plymouth & Sandwich St. Ry. Co. may construct and operate its road in (many such acts), Chicopee, filling of vacancies in board of aldermen. Falmouth, water supply for (a number of such laws), Salem, appointment of assistant assessors in, Revere, election of selectmen in, Taunton, custody of shade trees in, West Newbury may appropriate money for constructing a wharf, Windsor, may construct a telephone line to Dalton. No wonder Governor Russell advocated an enlargement of the powers of municipalities. In his address to the Mas?, legislature, Jan. 8, 1891, pp. 24 to 26, he says: — 400 THE BONDAGE OF CITIES "Much special legislation is enacted in behalf of cities and towns "and is made necessary by their limited powers. Twenty-th^ee "cities and forty-one towns were the subjects of special acts at "the last legislature. In my opinion, greater powers can be given "to cities and towns with safety and advantage, not only as- a relief "to the legislature, but as a just and proper extension of local self- "goveimment." Speaking of the terms and conditions on which street franchises should be granted, and of an act that passed the House requiring the sale at auction of such franchises, he says: "In my judgment, each community is best fitted, has the right and "ought to have the power, to determine this question for itself;" and he recommended the passage of a law allowing each muni- cipality to fix the terms on which such grants should be made. In his address of January 7, 1892, page 42, he again recommend! the "extension of the powers of cities and towns and of local self- "government, especially in matters of taxation, control and sale of "franchises, and extending the limits of municipal work and of "municipal ownership." And finally, in his address to the legislature, January 5, 1893, page 12, et seq., under the caption "Eight of Local Self-Government in Town and City," the governor said: "The right of self-govern- "ment is an axiom uf our political system. Wherever this right "can be exercised directly by the people themselves, such exercise "should be carefully conserved. . . Due regard for the right of "loca^ self-government requires not only non-interference by the "State in the purely local affairs of cities and towns, but also the "grant to them of greater powers in order that there may be the "most successful treatment and control of the ever increasing prob- lems of local concern. A reference to the acts of last year shows "that nearly one-third of its four hundred and forty acts were "special laws passed on the application of twenty-five cities and "eighty-five towns [in respect to little local matters], and there "were also eighty-seven special acts relating to other corporations," and he repeated his recommendations of former years for the sake of progress, for the relief of the legislature, and as a matter of justice and right. The Fassett Committee appointed in 1890 by the New York Senate to investigate municipal government in that state found that in 6 years, 1884 to 1889 inclusive, the New York legislature passed 1234 acts relating to the 30 cities of the state —390 of the acts affecting the city of New York. In 1886, 280 out of 681 statutes were local municipal laws. (See Sen. Rep. Fassett Com. 1891, Yol. Y, p. 459.) For examples of New York special legislation, see Appendix II, S. In Wisconsin in 1895 the General Laws occupied a volume of 812 pages and "City Charters and their Amendments" filled a second volume of 1360 pages. As specimens of some TO POLITICIANS AND MONOPOLISTS MUST CEASE. 401 of the local measures that absorb the attention of Wisconsin legislators, we may name an act providing that bath houses may be maintained at Hicks Lake, and an act to amend the charter of Milwaukee in respect to sprinkling the streets. In the Minnesota statutes of the last session (1897) I find: Cities are authorized to compromise and settle claims. Empowered to repair market houses and city property. Authorized to issue bonds for water works, hospitals, etc. Time for payment of local improvement assessments extended. Empowered to prevent fights, disorderly conduct, etc. Empowered to change abandoned cemeteries into parks. Empowered to take bequests in trust for public libraries. Cities over 50,000 authorized to buy any water plant or combined water and light plant in operation in such city. Fire limits may be prescribed by Councils, etc., etc. Think of it! A city has to have legislative permission to compromise and settle a claim, to repair its own property, to change its own cemetery into a park, buy a water or light plant, or take a bequest for a public library! 'No individual of age and apparent discretion, nor any association of indi- viduals whatever, except a municipality, would think, of asking permission to repair its own property — but a city or town — well, it would ask permission to sneeze if it needed to perform that operation; it can't even stop a fight legally till the legisla- ture says it may. A large part of our state legislation consists of acts that deal with, insignificant local matters that should be left under gen- eral laws, to the discretion of municipal and county authori- ties. In Massachusetts more than a hundred towns and cities apply in a single year for special legislation in their behalf to the great overburdening of committees, the dissipation of legis- lative energy, the decision of numberless local questions by men who know little or nothing about the case, the prevention of due consideration of important State affairs, the general distraction of attention and encouragement of loose methods of passing laws, or allowing them to pass without finding out whether they ought to pass, and the serious congestion of the statute book, entailing on the public treasury the needless cost of printing hundreds of laws for the State every year, when 402 MUNICIPAL LIBERTY. an entry on the books of a city, town, or county, would do just as well, or better. The New Jersey General Statutes, 1895. contain seven special acts as to cities besides numberless fragments affecting them more or less. There is an act concerning cities of the first class, or those over 100,000 population; another as to cities of the second class between 12,000 and 100,000, another as to third class cities, all those not in the first or second class, except Sea-side resorts; another as to Sea-side resorts; another relating to cities between 6,000 and 10,000; another about cities below 5,000; and another as to cities generally. There is an enormous amount of repetition — the councils have- powers that are similar to a large extent in the different groups, but there is difference enough so that it is almost im- possible to tell just what the authority of a particular city is under any given circumstances — quite impossible without em- ploying a lawyer to investigate the statutes and decisions. The General Statutes are composed of three big volumes containing 4,098 enormous pages — over 1,200 words to a page, and nearly 5,000,000 words altogether, and every legislative ses- sion adds another book of laws ; 30 of the giant pages are given to a dissertation on oysters and clams, and 400 pages, or nearly 50,000 words are devoted to cities and towns, besides the quan- tities of scraps, to exhaust which one must search the imper- fectly indexed volumes under 40 or 50 heads. This egregious violation of the laws of liberty and decen- tralization, burdening the legislature with a mass of local con- cerns about which they know little, and care little, taking their time and attention from the broad interests they ought to deal with, diminishing their respect for and interest in law mak- ing, subjecting local business to irresponsible "foreign" con- trol, and depriving municipalities of the benefits of self-gov- ernment, constitutes one of the great evils of our time. Third. Another result of our present system is a great lack of elasticity and spontaneity in municipal action. Fourth. The absence of municipal independence cripples local patriotism, creates a disastrous apathy in many honest citizens, forfeits the educational development that comes of LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 403 ; earnest attention to public questions. The people do not manifest the interest in local business, especially in the larger cities, which they would manifest if the right of decision and initiative rested with them. As the Fassett Committee says: "Our cities have no real local autonomy, local self-govern- ment is a misnomer, and consequently so little interest is felt in matters of local business that in almost every city in the state it has fallen into the hands of professional politicians." ** As Prof. Goodnowsays, in subtance: "The indifference Which, has been too evident in many of our large municipalities, has- undoubtedly been due in part to the feeling of the people that their efforts were of little avail. Citizens have little motive or encouragement to act in New York when they know that their efforts can be at any time, and as a matter of fact have frequently been, frustrated at Albany."** Fifth. Municipal dependence helps the politicians and! lingsters not merely thru the apathy it causes, but also by* shifting the scene of action to a field where corruption wins more easily in respect to city affairs than it usually would in the city itself. It is easier to persuade Mr. B. to favor a bill that will take money out of A's pocket than it is to persuade A to favor that bill. Mr. rJ., representative from Cleveland draws up a bill to extend the franchise of a street railway com- pany for which he is counsel. The representative from Col- umbus, S, has a bill to establish a state commission to control the city's water supply on the understanding that he, S, will be appointed commissioner. Mr. Z, of Cincinnati, is engaged in a law suit which will become more hopeful for him if a law is enacted changing the remedy in that class of cases, and so he introduces a bill for that purpose. In one case a legis- lator who kissed a woman on the street without permission, and was sued for damages, introduced a bill to the effect that the damages for kissing a woman on the street should not ex- ceed $250 — the woman was pretty and he feared the jury might give her heavy damages. Mr. X, of Toledo, has an equ- ally public spirited measure on hand and so have other repre*- ♦(Senate Rep. Fassett Com., 1891, Vol. V., p. 13.) ** Polit. Sc. Quar., March, '95. 404 THE CITY FOR THE PEOPLE. sentatives. X. says to S. Z. X. & Co. : "You vote for my bill, and Til vote for yours." "All right," say S. Z. X. & Co. Some members vote as X. wishes because they are friends of bis, and have no interest in the Cleveland matter, and don't know anything about it, and don't care. Other members are too busy to pay any attention to the bill, tho it is part of the business they are paid to attend to. So altogether, by negli- gence, indulgence, log-rolling, and pressure of influence, and of money if need be, many municipal and other measures are enacted, which have no public purpose for a motive, but exist for private advantage and profit. In this way, scheming men are able, thro legislative influence, to secure the creation of lucrative offices to be sustained at city expense, to line their pockets with the people's money under color of municipal con- tracts and public works which a really self-governing city would never have authorized, and to obtain valuable fran- chises in relation to water, gas, electricity, transit, etc., without remuneration to the city whose streets are used, and often without the consent of the people or their municipal agents. And it happens not infrequently ^hat a state senator or repre- sentative from a city becomes, thru his power in the legisla- ture, the virtual ruler of that city, subject of course to the big politicians and bosses, like Croker, Piatt, Quay, Hanna, etc., who can control not only cities, but anything else the legisla- ture has a right to act upon, except, perhaps, a great railroad or a giant monopoly. These industrial bosses and political bosses understand each other so well that we have not had a chance to see which would win in a fight to the finish. Sixth. The path of progress and reform is obstructed or blocked by the inertia consequent on the necessity of fighting every upward measure thru the legislature against the force of antagonistic private interests, the indifference of over- crowded and more or less alien legislators, and the weighty lack of local patriotism and public spirit due to municipal dependence. Sometimes the private interests opposed to municipal pro- gress form a state wide union to resist with their whole power tny measure looking toward reform in any city. When a HOME RULE FOR OUR CITIES. 405 bill was brought before the New York legislature to authorize a municipal subway in Syracuse, a prominent lobbyist told the mayor of Syracuse that he was wasting his time working for the bill; it might pass the legislature but it would not become law; it would be killed either in the legislature or afterward, for all the electric companies in the state had put funds in j» pool in the hands of a lobbyist he knew (and named) to be used against any bill tending toward public ownership. In this case, the bill passed the legislature, but died in the Gov* ernor's hands. The lack of home rule hinders development in other ways than those already mentioned. For example, Governor Pin- gree tells me that if Detroit had possessed home rule a few years ago, it would have been possible to accept the offer made by a responsible syndicate to run all the street railways of the city as one system on a uniform 2^ cent fare with free trans- fers, and pay the interest on the sum expended by the city in obtaining possession of the roads under the right of eminent domain. It was a splendid offer, but Detroit was still in her nonage, she could not act for herself, and the legislature was not in session, and, if it had been, a long and costly fight with the companies would have been necessary, with defeat for the city perhaps at the end. The Governor knows whereof he speaks, for he spent $75,000 of his own money fighting corpor- ations while he was Mayor of Detroit. THE REMEDY. The cure for the evils of municipal dependence is muni- cipal independence. A certain amount of dependence is good — essential to state and national organization, and the co- ordination of effort for wide purposes; but over-dependence is an evil, and the excess should give place to independence. Instead of having to get permission for every move in local concerns, municipalities should be free under general regu- lations, to act in any way they please so long as they do not conflict with superior law. This we may call Ue Manhood Principle, as distinguished from the Infancy Principle, whereby the child, or municipality, acts by permission. This 400 THE BONDAGE OF CITIES rule would give municipalities a strong initiative, a power of self-movement, after the manner of living things, instead of compelling them to remain motionless, like a lifeless machine, till the legislature turns on the steam. The Manhood Prin- ciple prevails in some countries of Europe, 1 is imperfectly ex- P) In England, the same law holds respecting municipalities as in this ■country; a city can do nothing without permission, but Parliament has generally been quite liberal in granting permissions, and much good has t>een done, especially by such sweeping enactments as the Tramways Act of 1870, under which municipalities may build their own tramways if they so ■desire, or if the city chooses to allow a private company to build the lines, then at the end of 21 years, and of each subsequent franchise period of 7 years, the city has 2 years in which it may buy the railways at the actual value of the physical plant. About one-quarter of the tramways of England and Scotland are owned by municipalities, and additions to the list are being •constantly made as the franchise periods expire. Special permission, how- ever, must be obtained if the city wishes to operate us tramways. This has been secured by a number of cities without serious difficulty, Out permissions to buy up and rebuild the slum districts, and to own and operate a municipal telephone system are not so easily obtained, as Glasgow has reason to know the difficulty in the latter case being due to the reluctance of the postal authorities to grant telephone licenses that will result in a duplication of exchanges in the same locality, preferring to wait until the whole system •can become public at reasonable cost without incurring the complexities and wastes of competition. Notwithstanding the absence of municipal sover- eignty de jure, a number of English cities have made considerable progress toward real self-government In local concerns. Glasgow, for example, the •second city in Great Britain, has control of her streets, owns and operates iher street railways, gas and electric works for public lighting and sale to consumers, water works, hydraulic power works to supply motive power for elevators, etc., hospitals, sanitary wash-houses, sewers, garbage and street cleaning plants, municipal farm, model tenements, and lodging houses, public toaths and laundries, public markets, cattle yards and slaughter houses, parks, play grounds, fire department and police (partly paid for by a government grant, the maintenance of order being in theory and origin a general rather than a local function), public ferries, steamships, docks, shipyards, in fact the whole harbor and its various services. The development of municipal control over local business affairs In Glas- gow and Birmingham and other English cities in the last few decades has had much to do with their transformation from among the most corruptly governed to the front rank among the best governed cities of the world. In France the dual character of the municipality is clearly recognized, the mayor being distinctly understood to act in the double capacity of agent tor the general government, and agent for the commune. The law expressly ascribes to him this two-fold character. As agent for the nation, he must attend to military matters, national taxes, registration of births, deaths and marriages, and the general execution of all national laws in the commune. As agent of the municipality, he is charged with the care and management of the municipal property, the direction of public works of a local character, leasing places in the markets, attending to various specified business trans- actions in behalf of the commune, and in general with the carrying out of the decisions of the municipal council. Both in France and in Germany the re!e of law Is that a municipality Is free to do any act not contrary to the laws above it— the exact reverse of our rule. Here cities can do nothing without permission; there cities can do anything unless forbidden. In France, tho the principle is good, the limitations of the superior law are great; but in Germany, municipal home rule really does exist to a very substautial degree, and with marked advantages in awakening local patriot- ism and securing men of high character and ability to manage city affairs. In the 18th Century, the Prussian policy was to "sink the independence and individuality of the municipalities in the absolutism of the state, going even so far as to treat municipal properly as belonging to the state * * * * But all this was changed by the legislation of 1808. Municipalities were recognized as organic entities, with their own properties and functions, and with the right of entire self-government within the sphere of their strictly local and neighborhood concerns. There are in the German conception of city government no limits whatever to the municipal functions. It is the business of the municipality to promote In every feasible way Its own welfare and the welfare of its citizens." The Germans regard municipal ownership and management of public utilities simply as part of a thrifty and progressive municipal housekeeping. Everything is involved in the concep- tion of the municipal household and the full and unlimited responsibility of the city for the welfare of its citizens. "The German city holds itself re- sponsible for the education of all, for the provision of amusement and the TO POLITICIANS AND MONOPOLISTS MUST CEASE. 407 pressed in the charters of some of our cities, and partly incor- porated in the constitutions of California, Washington, and some other states, and in the Missouri statutory powers of first class cities, etc. While, however, this rule con- fers on the municipal body the power of self-movement, and, when joined with constitutional safeguards against special legislation, and provisions securing the referendum, is a most valuable contribution to municipal liberty, yet it doas not pre- vent legislative obstruction of municipal movement. The legislature can still, by positive action, completely control the municipality. To prevent this in matters that should be left to local discretion, a limited sphere of local activity should be clearly marked off and deeded to local self-government, to belong to municipalities absolutely, to the positive exclusion of legislative interference. The state and the nation each has such a sphere; why not the city? The idea of assigning such a local area of assured self-government for municipalities is an means of recreation, for the adaptation of the training of the young to the necessities of gaining a livelihood, for the health of families, for the moral Interests of all, for the civilizing of the people, for the promotion of indi- vidual thrift, for protection from various misfortunes, for the development of advantages and opportunities in order to promote the industrial and com- mercial well being, and incidentally for the supply of common services and the introduction of conveniences." Such are some of Dr. SUaw's remarks in his Municipal Government in Europe, pp. 305-329, and he goes on to speak In detail of the splendid efficiency of German city governments in the prosecu- tion of public works and enterprises, and the care that is taken with gas, electric light and street railway franchises, etc., it being a common practice when a franchise is leased to a private company to provide in the contract: (1) for adequate payment to the city for the privileges granted, (2) for municipal supervision of accounts and control of the service, (3) for reason- able rates, (4) for city purchase at the fair value of the plant estimated ac- cording to methods clearly stated in the contract, and (5) for cession of the entire system to the city without payment at the end of the franchise term. After speaking of these matters Dr. Shaw says: "In studying these German contracts one is always impressed with a sense of the first class legal, finan- cial, and technical ability that the public is able to command; while Ameri- can contracts always impress one with the unlimited astuteness and ability of the gentlemen representing the private corporations." Ibid, p. 350. The conception of a city as a self-governing household fully responsible for the welfare of the family, and fully able to provide for that welfare, la very different from the conception of a city as a creature of the legislature, intended simply to carry out the will of the legislature, having no powers except such as the legislature may see fit to grant, and no ability to do any- thing without express permission; and to this difference is largely due the superiority of German municipalities. A similar difference is one of the Important factors in Glasgow's wonderful development and magnificent success. The conception of the city as an independent self-governing group, responsible for the welfare of its citizens and with full right and ability to provide for it, 'has not yet embodied itself in British law, but the conception has taken possession of the people of a considerable number of English municipalities, and has transformed them, governmentally, Industrially, socially, and the new sentiment will soon be too strong for any Parliament to break. Home rule for cities may be practically assured in this country also by the growth of a similar sentiment here, without constitutional changes; but the constitutional method seems the more rapid and definite and certain, and besides the discussion of the proposed amendment to our constitution Is one of the most effective methods of educating ourselves to a full understanding of the subject, and of developing public opiuion in favor of Municipal Home Rule. 408 MUNICIPAL LIBERTY. application of what we may call the Democratic, or Popular, or Distributed Sovereignty Principle — the principle which gives to each group of men the government of those affairs which are specially and peculiarly their own, so that interest and power may go together, and no one be given control, in his own right, of matters that really belong to other people of full age and capacity. The Manhood Principle and the Dis- tributed Sovereignty Principle together make up the Liberty Principle, or Home Rule and Self-government, de facto and de jure, established and certain. The distinction between state and local interests and the importance of municipal self-gov- ernment have been frequently emphasized by legal authorities, and tho not yet denned and protected as they should be, they have had large influence in the framing of laws and govern- ments. Dillon says: "The fundamental idea of a municipal corporation proper is to invest the people of a thickly popu- lated place, or district, with the power of regulating their own local affairs, which are of a nature not common to the state at large, and which it is supposed they can regulate for them- selves better than the legislature can regulate them by general enactments." (§27.) Interpreting a constitutional provision to the effect that municipal officers must be elected, or appointed, by the muni- cipal authorities, the New York Court of Last Resort has said : "This right of self-government lies at the foundation of our "institutions, and cannot be disturbed or interfered with even "in respect to the smallest of the divisions into which the state "is divided, without weakening the entire foundation; and "hence it is a right not only to be carefully guarded by every "department of the Government, but every infraction or in- "vasion of it ought to be promptly met and condemned, especi- ally by the courts, when such acts become the subject of judi- cial investigation." 1 In People v. Ingersoll, 58 K Y. 1, The Court said that the relation of principal and agent does not exist between the State and a municipal corporation in respect to the exercise of corporate functions. "In political and governmental matters, <») People v. Albertson. 50 N. T. 50. 57 (1873). LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 40S the municipalities are the representatives of the sovereignty of the State, and auxiliary to it; in other matters relating to property rights, pecuniary obligations, they have the attributes and distinctive legal rights of private corporations." The powerful opinions of the supreme courts of Michigan and Indiana have already been cited. Almost as strong are the words of Chief Justice Dixon in Milwaukee v. Milwaukee,. 12 Wis. 93, where it was held that the legislature could not divest a town of its title to land without the town's assent, and that an act annexing part of a town to a city did not divest the right of the town to land in the annexed area, to which it held the exclusive title. The Chief Justice distinguished between; the municipality "as a civil institution or delegation of merely "political power, and as an ideal being endowed with the "capacity to acquire and hold property for corporate and other "purposes," and said "In its political or governmental capacity,. "it is liable at any time to be changed, modified, or destroyed "by the legislature; but, in its capacity of owner of property, "designed for its own or the exclusive use and benefit of its- "inhabitants, its vested rights of property are no more the sub- "ject of legislative interference or control, without the consent "of the corporators, than those of a merely private corporation* "or person." In 127 Mo., 642 (1895), the Supreme Court of Missouri drew a strong line between state interests and functions and those which are "of merely local and municipal concern," and held that the legislature could not modify the freehold charters of the large cities in respect to local affairs.* (See> p. 424.) CONSTITUTIONAL AMENDMENT. The best institutional remedy would seem to be an amend- ment to each state constitution drawing the line between state- and municipal interests as clearly as the federal constitution- draws the line between state and national interests, providing for municipal sovereignty within the defined sphere of muni- cipal business, and full freedom to do any act even tho it may * See further on this subject 51 Me. 3G2: 103 Mass. 409: 3 Ilill, 531; 31 Pa. 183; 64 Pa. 180; 18 Cal.500; 28 Mich. 228, 237; 24 Mich. 44; Compare 14 Oreg. 98. 410 THE CITY FOR THE PEOPLE. be beyond the said sphere, provided it does not conflict with state or national law. This would establish the manhood rale, plus the absolute exclusion of the legislature from a specified reservation of local sovereignty. Or, the proper area could be deeded to state sovereignty by metes and bounds, as the area of federal sovereignty is marked out in the national constitu- tion, leaving the remaining territory to b« divided between individual and municipal sovereignty, under general princi- ples and specific limitations, such as those applied to state sovereignty in the constitution of the United States. The better plan would seem to be to preserve a limited area for municipal sovereignty covering franchises and public enter- prises of a local character, leaving all the rest of the existing state sovereignty in its present indefinite shape. This would seem best to begin with because it is less of a change from present conditions than the other plan, and because it is very important not to diminish too much the power of the state, which is the unifying, systematizing, co-ordinating power upon which we must depend for uniformity, and the equali- zation of burdens and benefits within the state area. It is quite as important not to deprive the state of the sovereignty necessary for the vigorous and effective performance of its du- ties, as it is not to deprive the city of the sovereignty necessary for the vigorous and effective performance of its duties. Each should have its proper share of sovereignty, a due balance being maintained in the same proportion that state interests bear to local municipal interests, just as a due balance is main- tained between state and Federal sovereignties in proportion to national and state interests. Under such a Home Rule Amendment as we have suggested, each city and town would make its own charter, subject to general statutes regarding state interests, and in harmony with the general principles and limitations above mentioned, just as each state now makes its own constitution subject to federal limitations. HOME RULE CHARTERS AND THE REFERENDUM. In order that such municipal charters, and the ordinances ROME RULE FOR OUR CITIES. 411 made under them, may be in accord with the will of the people (male citizens of full age and of apparently or presumedly sound discretion) it is necessary to have constitutional pro- visions guaranteeing the initiative and referendum in the making and amending of charters and ordinances. Other- wise, municipal independence might simply mean the substi- tution of mayor and councils, or mayor and aldermen for governor and legislature — a change that would generally be of some benefit, since mayor, aldermen and councilmen belong in the city they rule, understand something of its condition, .are elected by the citizens of the city, and have interests thru which they can be made to feel the local public sentiment to some extent, while the state legislature is almost wholly com- posed of men from other cities and towns, who have little or no acquainance with the city under consideration, do not understand its needs, have no direct interest in it, were not -elected by its citizens, and do not feel the slightest responsi- bility to them. Nevertheless, home rule, without the refer- endum, would still be government by the few, and tho govern- ment of local business by a few who live in, understand, and are elected by the city, is likely, as a rule, to be superior to govern- ment of local business by a few who don't live in, nor under- stand, nor owe allegiance to the city; yet government by a few in any form is likely to be far less honest, just, progressive and beneficient than government by the whole body of American citizenship. As soon as a community has reached a stage of evolution whereon it is able to govern itself without a break- down, it should exercise self-rule, for, thru that exercise alone can come the full justice and development of a perfect •democracy. SEPARATION OF STATE AND MUNICIPAL AFFAIRS. A municipal government is of a two-fold character; on tha one hand it is an agency of the state to deal with state affairs, and on the other hand it is an agency of the municipality t© ■deal with municipal affairs. In the first relation its function* are political and governmental; in the second, its functions are largely similar to those of the directors of a business corpor- 412 THE BONDAGE OF CITIES ation whose stockholders are the citizens of the city. Most of the difficulty and confusion in municipal law has come from the failure of constitutions, legislatures and courts of law to draw the line between these two sets of functions with proper strength and clearness. The remedy lies in establishing a separation of state and municipal interests, similar in substance to the separation es- tablished by the federal constitution between state and national interests; the principle of decentralization, or the nearest possible approach to individual freedom, being always the guide; no liberty should be taken from the individual and given to any public body unless the transfer is clearly for the public good; no liberty within the public sphere should be» taken from the municipality and placed in a wider grasp unless the wider public good requires it; and no liberty of the wider class should be taken from the state and given to federal power unless the national good demands it. As a business corporation dealing with property for muni- cipal revenue, service, or advantage, establishing water works* gas plants, telephone, electric light, and street car systems^ markets, bridges, ferries, parks, etc., the city should have the fullest discretion subject only to broad limitations in respect to debt, unanimity, submission of measures to the people at the polls, etc., to prevent improper haste or ill-considered action, or possible tyranny of majorities, or injustice to private indi- viduals or companies. In this relation, the municipality is an organization for the common benefit of its citizens, and its government an agency whose duty it is to do all in its power for the prosperity and advantage of its principals. In respect to state interests, the municipality occupies a subordinate position ; yet even here it should be free to act so long as it does not conflict with state arrangements. For example, the preservation of order and prevention of infection are state affairs; but they are also of prime importance to every municipality, and it should be free to establish a police or health department of its own where the state does not act, or in addition to the state agencies where it does not deem them sufficient; in other words, it should have TO POLITICIANS AND MONOPOLISTS MUST CEASE. 413 a sort of concurrent jurisdiction of state interests within its own domain, wherever the state does not claim exclusive juris- diction. It may not be an easy matter to arrive at a satisfactory division of state and municipal functions, but it can hardly be more difficult than the separation of state and national func- tions that was so satisfactorily accomplished by the maters of the federal constitution. Perhaps it might be well to try a similar plan in the present case; a convention of distinguished judges, statesmen, philosophers, etc., might at least be able to arrive at conclusions that would greatly facilitate a solution of the problem, and give the courts and constitution makers of the various states a standard that would help to mould the law of the country into at least a semblance of consistency and wisdom on this vital topic. After the division of sovereignty is made, it would be well to have state and municipal elections on different days some months apart, so that the choice of men to manage the water- works and grade the streets might be more dependent on fit- ness and less upon the candidates' opinions about free silver, or the tariff, or their affiliations with any state or national or- ganization or party. STEPS TOWARD HOME RULE. On the way toward the solid independence outlined in the last two sections a number of partial reforms may be of ad- vantage. When it is not possible to get a whole loaf, half a loaf is better than none. A. Broad statutes may be passed giving cities larger powers, especially in regard to the granting of franchises, and the right to own and operate local business enterprises. A considerable movement has taken place in this direction in the last few years, but it often requires a hard fight to pass such bills, and they are apt to be narrowed in scope, and gorged with wind and red tape, and assassinated with ingenious amendments and limitations. For example, it required a three years' struggle to get the Massachusetts law permitting cities and towns to establish municipal electric light works, and 414 MUNICIPAL LIBERTY. even then its corporation enemies succeeded in crippling it with amendments which made it of little practical use. In spite of all the imperfections of legislative enlargemei of municipal powers, much good has been done in this way,, and in conservative states it is probably the line of least resist- ance, and the greatest immediate hope. We have seen thai Governor Russell of Massachusetts was a powerful and per- sistent advocate of this reform. B. The second partial remedy lies in the possible adoption of the Michigan Doctrine by the courts of other states. This is probably not the most hopeful line of attack, but is worth the effort wherever occasion affords an opportunity to ask for a ruling in line with the principles laid down by Judge Cooley,. as above stated. C. Greater help is likely to be derived from the insertion of particular provisions in the state constitutions — such provi- sions, for example, as the following: 1. For the local election of municipal officers. 2. Against special legislation for laying out, or vacating streets, granting franchises to railways, turnpikes, ferries, etc.., creating corporations, or granting corporate powers, creating municipal offices, or prescribing their duties, creating or amending municipal charters, or regulating municipal affairs, etc It is a marked advance to take away from the legislature its power to pass special acts, and yet by means of grouping the cities in classes the legislature may be able to almost, or quite, attain the same individual or specific action under what is called "general legislation" (or legislation affecting all the cities of the same class) that it formerly attained by means of what was called "special legislation. " 3. Provisions requiring local consent to street railway, gas ? electric light or telephone franchises. 4. Or, still better, provisions transferring from the state to the municipality the power to grant such franchises, prescribe their conditions, and regulate their exercise. 6. Or, better yet, provisions establishing the right of cities and towns, not only to grant and regulate, but to own and operate water works, gas works, street railways, telephone sys- LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 415 terns, etc., — best when the clause is a sweeping one that gives all municipalities the right to own and operate any public work on the people's vote to that effect. 6. It is most important to secure the initiative and refer- endum upon all municipal business, franchises, ordinances, etc. Nebraska took a step in this direction in a statute passed last year, but it is much better to secure the right by constitutional provision as was done in South Dakota this fall (1898). Some state constitutions have partial provisions requiring local con- sent to incorporate street railway, electric light, telephone and other franchise grants, but I know of no constitution, as yet, that secures the citizens of cities their full rights of veto and initiative. 7. A measure more comprehensive than any in this section,, except the last, is to be found in a constitutional clause per- mitting municipalities to make their own charters. If the line between state and municipal affairs is also drawn by the constitution and legislative action excluded from the special municipal sphere, we have the final remedy already spoken of ; but even without this, a simple clause allowing cities to make their own charters subject to state enactments has been found very useful. Mo. (1875), Cal. (1879), Wash. (1890), and Minn. (1896), have put provisions of this kind in their consti- tutions; and, by a statute of Louisiana, passed in 1896, any city or town in that state (except New Orleans) may adopt a charter of its own* 1 HOME-MADE CHARTER LAWS. The first constitutional provision was adopted by Missouri in 1875; cities over 100,000 population (i. e., St. Louis and Kansas City) may make their own charters. The city may elect 13 freeholders to draw up a charter, which should be sub- mitted to the voters of the city, and if ratified by four-fifths of the qualified electors voting should supersede the former charter, and all amendments thereto. Such charter may be amended by proposal of the law making authorities of the city published thirty days in three newspapers of largest circulation in the city, submitted to the voters sixty days or more after the O Detroit may amend its charter by direct legislation. (See Appendix T.> 416 THE CITY FOR THE PEOPLE. publication of the proposals, a ad accepted by at least 3/5 of the qualified voters of such city voting at a general or special election, and not otherwise (Missouri constitution, 1875, Art. IX. §16). No provision is made for legislative approval of the amendment. The section merely says after the words just given, "but such charter shall always be in harmony with, "and subject to, the constitution and laws of the state." Section 20 of the same article gives the local authorities of St. Louis authority to appoint an election at which the citizens may choose a board of 13 freeholders to make a charter which, if adopted by a majority of the qualified electors voting, shall become the organic law of the city. In the next year, Aug. 22, 1876, St. Louis adopted a free- hold charter, and Kansas City followed, April 8, 1889. In the other states named, the city's population does not have to reach the 100,000 home rule mark established in Missouri. In Washington, cities of 20,000 or more; in Cali- fornia, cities over 3500, and in Minnesota, all municipalities may make their own charters. The Louisiana statute adopts exactly the opposite view from that of Missouri, and excludes New Orleans from the privileges of home rule, apparently deeming large population a disqualification, or perhaps an extra enticement for the complete retention of legislative man- agement. On petition of a majority of the property owners of any city or town (except New Orleans) to the mayor and council of such city or town, praying a referendum on a new charter (a copy of which must accompany the petition), a vote is to be taken, and if adopted it is to be the charter of the city or town. (Laws of La., 1896; No. 135, p. 190.) By the amendment to article IV. of the constitution pro- posed by the legislature in 1895, and adopted by the people in 1896, any city or village in Minnesota may frame a charter for itself consistent with and subject to the laws of the state. The legislature is to provide for a board of 15 freeholders to be appointed by the district judges of the judicial district to which the municipality belongs. The charter proposed by such board must be submitted to the people and adopted by 4/7 of the qualified electors voting. The charter does not re- HOME RULE FOR OUR CITIES. 417 quire legislative approval; but "before any city shall incor- "porate under this act, the legislature shall prescribe by law "the general limits within which such charter shall be "framed." The board of freeholders is permanent and amend- ments to the charter are to be proposed by it, and accepted by 3/5 of the electors voting. In 1897, chap. 255, the legislature enacted that the judges should appoint freeholders "whenever requested by an ordinance passed by "the common council of any city, or village, or by petition signed "by at least 8 per cent, of the legal voters thereof," and that the charter might be so framed as to give the city control of street fran- chises, provided that no perpetual franchise or privilege shall ever be granted, nor shall any exclusive franchise or privilege be granted unless the grant shall be submitted to the people and approved by a majority of the electors voting, and even then the grant must not be for a longer period than ten years. (The recent act. chap. 351, 1899, confirms these franchise provisions, but makes the petition percentage 10 instead of 8, and drops the clause relating to request of the common council.) The legislature of 1897 proposed a new amendment limit- ing the term of the freeholders to six years, and providing that charter amendments should be submitted to the people upon petition therefor, signed by 5 per cent, of the legal voters of the municipality. (Adopted by the people Nov., 1898.) This gives the people a strong initiative — 10 per cent, can compel the making and submitting of a charter, and 5 per cent, can secure the submission of an amendment to it. In any city of Washington state having more than 20,000 people, the legislative authority of the city may order an election for the choice of 15 freeholders, who must convene within 10 days and prepare a charter "consistent with and sub- ject to the constitution and laws of the state," which charter shall be published in two newspapers in the city for at least 30 days before submission; and if a majority of the voters of the city ratify the proposed charter, it supersedes the existing charter including amendments thereto, and all special laws inconsistent with the said new charter. It may be amended by proposal of the legislative authority of the city, published as above and adopted by a majority of the voters (Wash. Const. 1890, Art. XL §10). For citizens' initiative see p. 435. 27 418 THE BONDAGE OF CITIES The favorable experience of St. Louis caused an effort m the California Constitutional Convention of 1879 to secure similar privileges of self-government for San Francisco. At that time the charter of San Francisco was a volume of 319 pages of fine print. Originally, it covered only 31 pages, but more than 100 supplemental acts had been passed leading to much confusion and numerous evils. Many of these acts, says Oberholtzer, had been passed in the interests of single indi- viduals and corporations. Half a dozen men framed them and took them to Sacramento, and had them passed without the wish, and often without even the knowledge, of the people or even the officers of the city.* Those in the convention who opposed home rule declared that San Francisco would break loose from the rest of the state and set up an independent government of its own. "This is the boldest kind of an attempt at secession," they said, and offered an amendment that the state should give the city all the privi- leges and consideration accorded the most favored, "foreign "nations, and should provide a duly accredited minister as "representative of the state to the city." In spite of all opposition, the California constitution of 1879, Art. XI. §8, permitted any city of more than 100,000 population to elect 15 freeholders to frame a charter to be published in two local papers for 20 days, submitted to the people within 30 days after the ceasing of such publication, adopted by a majority of those voting, and approved by the legislature. Amendments can be made at intervals of not less than two years by proposals submitted by the legislative au- thority of the city to its voters and ratified by 3/5 of the quali- fied electors voting, f and approved by the legislature. In 1887, the privilege of home made charters was extended by constitutional amendment to all cities over 10,000, and in 1890 all cities above 3500 were admitted to freehold charter privileges. The legislature must approve or reject the charter as a whole. * B. P. Oberholtzer In Annals of the Amer. Acad, of Pol. and SoclaJ Science, Vol. 3, p. 736, et aeq. t At the Extra Session in 1000 the Legislature proposed an amendment to g8 changing the requirement of a three-fifths vote for charter amend a majority vote. TO POLITICIANS AND MONOPOLISTS MUST CEASE. 419 Under these laws, St. Louis, Kansas City. San Francisco, Sacramento, Oakland, Los Angeles, Stockton, San Diego, Seattle, Tacoma, Dnlntli, St. Paul, etc., have established char- ters of their own making. The St. Louis charter gives the city power to grant fran- chises, construct street railways, buy and hold property, real and personal, to be used for the erection of water works, or gas works, to supply the city with water, or light, for the establishment of hospitals, or poor houses, etc., or for any other purpose; secures the local election or appointment of the city officers required by the charter; and provides that amendments to the charter shall be submitted to the people* separately. The people have no initiative, however, as to amendments, and neither initiative nor referendum as- to ordinances. In the Los Angeles charter, the 23d corporate power is as follows : — "To exercise all municipal powers necessary to the com- "plete and efficient management and control of the municipal "property, and for the efficient administration of the muni- cipal government, whether such powers be expressly enumer- ated or not, except such powers as are forbidden or are con- "trolled by general law." That is suggestive of the principle I have spoken of as the Manhood rule, but the explicit separ- ation of municipal and state affairs, and exclusion of the legislature from the distinctively municipal field are still miss- ing, and a strict construction of such indefinite phrases is apt to take the life and liberty out of these broad clauses. The new charter adopted by the voters of San Francisco in May, 1898, Art. II., Chap. 1, §13, provides that "upon "petition signed by a number of voters equal to 15 per cent, "of the votes cast at the last election, asking that an ordinance "to be set forth in such petition be submitted to the voters, "the Board of Election Commissioners must submit such pro- "posed ordinance to the vote of the electors at the next elec- tion." The initiative and referendum upon amendments to the charter is also secured to the voters thru a similar 15 per cent, petition. (§22.) The purchase of land more than $50,- 420 MUNICIPAL LIBERTY. 000 in value, the lease or sale of any public utility, or the grant of any franchise for the supply of light or water must be submitted to the electors — no petition is necessary. (§21.) The people, I hope, will use their initiative to secure an amend- ment placing street railway and other important franchises on the compulsory referendum list. The granting of fran- chises is in the hands of the city (Art. II, Chap. I, § 13, Chap. II., §§6, 7, etc.) and Art. XII., p. 124, entitled, "Acquisition of Public Utilities/' opens with this remarkable passage: — "It is hereby declared to be the purpose and intention of "the people of the city and county that its public utilities shall "be gradually acquired and ultimately owned by the city and "county. To this end, it is hereby ordained" — then follow provisions that upon a 15 per cent, petition favoring the acqui- sition of any public utility, the Board of Supervisors shall im- mediately take steps to procure plans and estimates of cost and enter into negotiations for the permanent acquisition of such utility by construction, condemnation, or purchase, so that it may, within six months after said petition, formulate a pro- position to be submitted to the voters. Or, the supervisors may themselves pass an ordinance embodying the idea of the petition. There is another clause that does not require a petition for public ownership to put it in operation. It is to the effect that "within one year of the date the charter takes effect, and at "least every two years thereafter, till the object of this article "shall have been fully attained, the supervisors must procure "plans and estimates of the actual cost of the original con- struction and completion by the city of water works, gas works, electric light works, steam, water and electric power works, telephone lines, street railroads, and such other public utilities as the supervisors or the people by petition may designate." Article XIII, "Civil Service," requires the mayor to appoint three persons "known to be devoted to the principles of civil service reform" to act as a civil service commission, and no two of the commissioners can at any time belong to the same political party. These commissioners are to classify LOCAL GOVEBNMENT BY THE LOCAL PEOPLE. 421 employments, and establish "public, free, practical, competi- "tive examinations." Each appointment to the classified service must be made from a list of three applicants having the highest rank for excellence in the examinations for health, capacity and fitness for the duties of the position to which they aspire. The appointment is on probation for six months. At or before the expiration of this period, the head of the depart- ment or office in which the candidate is employed may, with the consent of the commissioners, discharge him on assigning in writing to the commissioners his reason for so doing. After the period of probation, the appointee "cannot be removed, "except for cause, upon written charges, and after an oppor- tunity to be heard in his own defence," the trial to be before the commissioners, or some officer or board appointed by them. "Laborers" are not examined, but appointed according to priority of application. The officers put in the classified service make a long list, including the county clerk, assessor, tax collector, sheriff, auditor, the board of public works, the police department, the fire department, the board of election commissioners, board of health, and all boards or departments controlling public utili- ties. A splendid charter: civil service, public ownership, initia- tive and referendum, and a very substantial degree of home rule — three cheers for San Francisco — and yet some of the reformers of 'Frisco complain that the charter is imperfect; very well, friends, you have the initiative; educate the voters and perfect it. What more do you want than the initiative, and a free press? You have the future in your own handa subject only to the possible contingency of adverse legislation. The constitutions of California, Washington, etc., and the charters of many municipalities contain a clause de- claring that: "Any county, city, town or township may "make and enforce within its limits, all such local, police, sani- "tary, and other regulations as are not in conflict with general "laws." (Cal. Const. Art. XI., §11.) This gives munici- palities considerable freedom, whether they have freehold charters or not; in fact, so far as regulations are concerned, it 422 THE CITY Full THE PEOPLE is the Manhood Principle itself. But the word "regulations" is not broad enough to cover radical changes of structure or policy, or purchase or sale of large properties, or launching into large business enterprises. 1 If the clause gave the city power to do any act not in conflict with general law, we should have the Manhood Principle. Section 25 of Art. IX. of the Missouri constitution says that "notwithstanding the provisions 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." That is, it has almost unlimited power to pass general laws, and is not entirely debarred from special legis- lation. By Art. IV., §53, however, the general assembly is forbidden to pass any local or special law: Regulating- the affairs of counties, cities, townships, wards, or school districts; Authorizing- the laying- out, opening, altering, or maintaining, roads, highways, streets, or alleys; Vacating* roads, town plots, streets, or alleys; Relating to ferries or bridges, except interstate; Incorporating cities, towns, or villages, or changing their char- ters; For the opening and conducting of elections, or fixing or chang- ing the places of voting; Creating offices, or prescribing the powers and duties of officers in municipalities: Regulating public schools; Exempting property from taxation; Regulating labor, trade, money, or manufacturing; Creating corporations, or amending, renewing, extending, or ex- plaining the charters thereof; 0) Regulations will not cover an attempt to change the charter, or abro- gate a fire department established by an act which forms part of the charter. -. eg O H O 00 a,* H T3 . 82 o 9 u •el 05 o '3 03 2 = * o a o ° o * Sf IB O Sag" ill 3 "3 S-S* O 3 u III 5 Hi SO ' a,— »- S3 it* 33 e M = ° u Maine. ..1819 X G N. H 1889 ttVt 1793 co £ Mass 1780 CO X X . R. I 1842 X X X y< Conn 1875 Xd — 5 N. Y.„...1895 S X X X X X 3 N.J. .....1875 Xd X X X X X X X X X 5 Wise 184* CO X X X X SS Minn.... 1857 cd X X X , X X X 1 X Mo 1875 X X 1 X X X | X X X X X « Iowa 1846 X X X 2 Kans 1859 T X X 3 Neb 1875 cd X X X X 1 x X X 3 S. Dak.. .1889 cd X X X X I x X X N. Dak..l889 CO X X X X X 1 x X 1 x « Va 1869 S 1 S N. Car... 1876 cd X X s 8. Car....l895 X X X X ■S Ga 1877 CO X X g Fla 1885 oB Ala 1875 cd X X X X cd X 1 X X A Miss 15*90 Xd X X X I X \ X X S La 1879 cd X X X X X X stat. o Texas. ..1876 cd X X X X X x X 2 Ark 1874| X X S Tenn 1870 co X X * Ky 189l| S X X X . X X _ Mont 18RS CO X X X X x ! x X 8 Ida 188£ CO X X X X X X X fe Colo 1»7I cd X X X X X X X X • Utah 189f S X X X 5 Nev 1864' cd X X X X S3 Wyo 188' CO X X X X j X X X X X o Oreg 185- CO X X X S Wash 189( X X X X X S Cal 1S7< X X X X X X X X X X=-a provision on the subject indicated at the head of the column, next page. See 432 MUNICIPAL LIBERTY. pointed by the authorities thereof. It lias been held under this that police commissioners and similar boards are not muni- cipal officers, but state officers; and may still be appointed by the governor or selected in any way the legislature may direct. (15 K Y. 532; 36 K Y. 285.) But 55 K Y. 50, holds that police commissioners of a city or town are municipal officers, and protected by the constitution, so that the state cannot appoint them, except where it combines several cities or coun- ties in a metropolitan police district, as was the case in 15 1ST. Y. The Virginia constitution requires the local election of officers of cities and towns. In Utah also there is a sweep- ing provision requiring the election of local officers. In Michigan and Indiana, as we have seen, the courts take the ground that the local selection of local officers is an inherent right that exists without any express provision. An attempt has been made in column A to indicate the shades of enact- ment — co, meaning county; d, township or district; ct, county and district or county and township; x, municipal officers; S, a sweeping provision, and D a sweeping decision in favor of local selection of officers. My idea at first was to indicate the various shades in every column, but it proved impossible to do this in some columns with any satisfactory approach to accur- acy and exhaustiveness, and so the uniform sign x is used to show simply that the state has a law of the kind indicated .by the words at the top of the column, the shades of legisla- tion being given in the text accompanying the tables. 2. Columns B to J inclusive relate to constitutional safeguards against special legislation. In many states such legislation is forbidden for some or all of the specified pur- poses — laying out or vacating streets, granting franchises to railways, turnpikes, ferries, etc., creating corporations or granting corporate powers, granting to any corporation, asso- ciation or individual the right to lay down a railroad track, or any special or exclusive privilege, immunity or franchise what- ever (111., Pa., etc.), creating municipal offices or prescribing their duties, creating or amending municipal charters or regulating municipal affairs, etc. (See Pa., HI., Mo., Mont., Colo., Wy., etc.) LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 433 It is a marked advance to limit the legislative power of pass- ing local and special acts, for the chance of enacting bad general laws without arousing effective opposition is very much lees than in the case of special laws which affect fewer people. Yet great as the advantage is, there are some dis- advantages. First, the legislature, if left free to classify municipalities, may he able to attain almost or quite the same individual and specific action under "general legislation" (or such as affects all the cities of the same class) that it formerly attained by means of what is called "special legislation." To prevent this the constitution should specify the classes into which municipalities are to be divided. Second. A city or town may desire special legisla- tion in its behalf, of a perfectly proper sort, in cases where it does not seem best to pass a general law. To provide for such cases, a provision should be inserted allowing special legisla- tion upon petition of the municipality or municipalities affected, a favorable referendum vote in such municipalities being required either on the petition or on the law that may be secured by it. The constitution may require notice of special legislation to be sent to the municipality affected, and re-enactment of the law by the legislature if the city or town objects to it — a sort of mild municipal veto on local legislation (as in N". Y.) In some constitutions notice must be given of the intention to introduce a special bill so that those who object may be pre- pared to fight the measure, but no veto or re-enactmen. is pro- vided for (N. J., Pa., K Car., Fla., etc.) The notices thus provided for are very important as a means of preventing the practically secret passage of special acts, which is one of the prominent evils of the existing system in several of our states. Sometimes it is provided that there shall be no special legis- lation in any case where a general law is applicable. (W. Va., Minn., la., Kans., S. Dak., S. Car., Ga., Ala., Miss., La., Tex., Ky., Mont, Colo., Nov., Wy.) Where the constitution also says, as in Minnesota and Missouri, that the question "whether a general law could have been made applicable in any case is hereby declared a judicial question," the provision is srood; 28 434 THE CITY* FOR THE PEOPLE. otherwise, it is of little value, for, in the absence of such ex- press declaration, the applicability of a general law is held to be a matter for the legislature to decide (113 111. 315, 8 Col.,. 122, 19 Kans. 303, 29 Ind. 409, etc.). In column I, New Jersey provides that corporations shall not be crceated by special act, but "corporations" is held not to include municipal corporations. In several states the pro vision against creating- corporations by special act expressly excepts municipal corporations. (Md., Mich., N. Car., Ala., Mont., Col., Oregon — Wis. excepts cities.) 3. The principle of local consent is recognized in fifteen constitutions. Massachusetts, Pennsylvania, South Carolina and Wyoming require local consent as a prerequisite to the in- corporation of a city. New York, West Virginia, Illinois, Missouri, Nebraska, South Dakota, South Carolina, Georgia, Alabama, Kentucky, Idaho, Colorado and Wyoming, require local consent for the construction of a street railway. In some states the provisions are broader. Kentucky does not permit the construction of any street railway, gas, water, steam heat- ing, telephone or electric light system in city or town without its assent. South Carolina requires local consent for street railways, telegraph, telephone, electric light, water and gas. Wyoming requires such consent for the first four just named, and South Dakota for the first three. 4. Constitutional provisions transferring from the state to the municipality, the power to grant street railway, telephone, water, gas, electric light and other local franchises, would be very valuable. 5. Also provisions establishing the right of cities and towns to own and operate water works, gas works, electric light plants, telegraph and telephone systems, street railways, etc., best when the clause is a sweeping one that gives all munici- palities the right to own and operate any public work or ser- vice on the people's vote to that effect, proper provision being made respecting the purchase of existing plants. By South Carolina's constitution (1895) cities and towns are empowered to build or buy water works or light plants and supply the inhabitants on a majority vote of the people. (See comment on Table II.) HOME IUILE FOR OUR CITIES. 43t) G. The last column is probably the most important of all lit its bearing on future progress. The subject has already been dealt with in the text, but a very condensed summary may be useful at this point. (See further Appendix I.) Five states have given municipalities the right to make their own charters. Mo., 1875; Cal., 1879; Wash., 1890; Minn., 1896, by Constitutional provision, and La. by statute in 1896. In Mo. the provision applies to cities over 100,000 population, in Washington to cities over 20,00C; in California to cities over 3,500; and in. Minnesota to all municipalities. The Louisiana statute adopts a. rule precisely opposite to the Missouri principle, and permits all municipalities except New Orleans to make their own charters. In Missouri the city elects thirteen freeholders who prepare a. charter which is submitted to the people, and if ratified by four- fifths of the qualified electors voting, it becomes the charter of the city. St. Louis was given special authority to adopt a charter by a majority vote. Amendments may be submitted by the legislative authorities of the city, and adopted by a two-thirds referendum vote. (Mo. Const., 1S75, Art. IX, §§ 16 to 25.) In Minnesota, the charter is prepared by a board of fifteen free- holders appointed by the district judge and must be adopted by a four-sevenths vote of the people; amendments by a three-fifths vote. A constitutional amendment providing that charter amendments shall be submitted to the people on a 5 per cent, petition of the voters, was adopted at the polls Nov., 1898, by a vote of 2 to 1, and in 1899 the Legislature passed an act (chap. 351) pursuant to the home-rule amendments and denning the method of procedure under them. By this statute freeholders are to be appointed whenever 10 per cent of the voters of the city or town petition to that effect, (Minn. Const. Art. iv, amendments 1896, 1898, statutes 255, 1897. and 351, 1899). In Washington, the legislative authority of the city "may order the election of fifteen freeholders to prepare a charter to be adopted by a majority vote of the people. Amendments proposed by coun- cils and adopted by majority referendum vote. By statute the city council must order an election of freeholders upon a petition of one-fourth of the voters of the city. (Wash. (Oust., 1890, Art. XI. \ 10, and Wash. Code, \ 1142.) In California, fifteen freeholders are elected to make the charter which must be adopted by a majority vote at the polls, and ap- proved by the legislature. Amendments, at intervals of not less than two years, submitted by the legislative authority of the city and ratified by a vote at the polls, and approved \>y the legis- lature. Const, amendment, 1896, shuts out legislative control over home-made charters so far as "municipal affairs" are con- cerned. (Cal. Const, Art. XI, §§ 6 to 8y 2 as amended down to 1899, will be found pp. LII to LIV Cal. Laws, 1899. See also Extra Session. 1900, Resolution of Feb. 9, proposing that charter amendments may be adopted by a majority instead of three-fifths.) In Louisiana, on petition of a majority of the property owners of any city or town (except New Orleans) praying a referendum on a new charter, a copy of which must accompany the petition, the mayor and council shall submit the proposed charter to a referendum vote, and if adopted, it is to be the organic law of the municipality. (Laws of La., 1896, No. 135, p. 190.) 436 THE BONDAGE uF CITIES x Statute Provision c=Coostitutional Provision C=broad X c=both Stat, and Const. Pre TAB MUNICIPAL ACCORDED BY LEGISLATIVE POLICY Conferring local power to establish, construct, build, buy, organize, own. t 2 1 £1 — 00 o * u 4) > p" tr. o M '5 K . 00 3d T3 a • - a of p, J-. a> fg I i > -_ el IS I Franchises States. if ■ ll r ill X X X X X X X X X X 1 X X X p X X p X X X X X X X X X - N H w Vi X X X X ~ R. I X ^ N Y X X X CO X X X X X X X X X X X X X X X X X X X xc ; x X ' X X § N.J W Penna ■rs Del 2 Md "* W.Va Xc x ji, Ohio.. X X X X X X X X X X X X X X X X X X X X p X X X X X X p X X | X I X X X X X X X X X X X x X X X X X X X xt. X X X X X X r Ind £ in . Mich 3 Wise ^ Minn Mo X X X X X X X X X X X X X X X X X X X X X p X X X X ! P X X X X x X X X X x x X X X X X c X xc X X 2 Neb S S. Dak N. Dak 3 Va X X X X X CO X X X X X X X c X X c X X X X x X X X 9 N.Car a S. Car •B Ga c x X X c X 1 Fla tc Ala j=. Miss s La X X X X X X X X X X X X X X X X X p X X i x p X x X X X X X X X X x £ T e f as . Ark X X X X X C Xc 2 Tenn 3 Ky ^ Mont 8 Ida £ Colo X X X X CO X X X X X CO X X X X X X X p X X ! P X X X X CO X X X X X X X X X XC X XC X X X X XC v • Utah — Nev ** Wyo « Ore X X X X X X X X X X X X X X X X X X X ^ Wash X x i* Cal. : X ! I Under these provisions St. Louis, Kansas City, San Francisco, Sacramento, Oakland, Los Angeles, Stockton, San Diego, Seattle, Tacoina, Duluth, St. Paul, etc., have established charters of their own making*. The St. Louis charter gives the city power to grant franchises, construct street railways, buy and hold property to be TO POLITICIANS AND MONOPOLISTS MUST CEASE. 437 LE II. FREEDOM EXPRESSED IN GENERAL LAWS. co County P- power to provide i'or lighting I -a law with very important exceptions States. operate, manage, control, deal with, grant, &c. • ■ .22 M si S «s a, s x> Ch M 8 " w 4) ° • CO Provid'g for 31! Debt Limit for Municipalities fixed by Constitution or Statute. Maine. N. H... Vt Mass.. . R. I ... Conn. . 5$ (const.) ■1& 2'.,, (stat) '.¥, (stat.) N. Y.... N. J Penna. Del Md W.Va. Ohio... hid.... Ill Mich. Wise. Minn Mo Iowa Kans. ... Neb S. Dak... N. Dak.. Va N. Car. S. Car. Ga Fla Ala X I X X X X 10$ (const.) 5$ (const.) 2^ (const ) Sjf (const.) 5# (const.) ltyc (stat.) 5$ (const.) 10$ 2d cl. (stat.) 10$ 4- (stat.) 5$ 4- (const.) H + (const.) tat.) bond lim. (const.) Miss... La Texas . Ark.... Tenn. . Ky Mont. Ida.... Colo. .. Utah.. Nev... Wyo.. X X X X X X \ X ty 4- (stat) 10^ (bond slat.) ty 4- (const.) 2% 4- (const Ore Wash Cal. ... 82,600 (stat o# (stat.) used for the erection of water works or gas works, to supply the city with water and light, for the establishment of hospitals or poor houses, etc., or for any other purpose; secures the local election or appointment of the city officers required by the cha/ter; and pro- vides that amendments to the charter shall be submitted to the 4:38 MUNICIPAL LIBERTY. people separately. The people have no initiative, however, as to amendments, and neither initiative nor referendum, as to ordi- nances. The banner charter of all is the one adopted by the voters of San Francisco in May, 1898. It contains strong civil service rules, declares for public ownership and operation of street railways, water, gas, electric light plants, telephone systems, etc., announces the policy of gradual absorption of all such monopolies, and pro- vides for a popular initiative and referendum upon these questions, and upon ordinances of all sorts and upon amendments to the charter, upon petition signed by a number of voters equal to fifteen per cent, of the votes cast at the last preceding election. The charter is not equally good in all its parts, but these admirable provisions make it possible for the people to mould the charter easily to any form they desire. The people of San Francisco appear to have their own destiny more conrpletel}' in their own hands than the people of any other large city in the country. Their control is subject only to general laws, and the approval of the legislature to charter amendments, which, it is said, is not likely to be withheld in the case of a un- reasonable amendment. In Table II, as in the former one, two crosses in the same column may represent widely different laws; both will be general laws relating to the subject at the head of the column, but one law may be much broader than the other. The mass of statute law behind this table is too great for anything like full treatment here. We can only comment briefly on a few of the more important columns, and note a few general acts that fall outside the limits of the table. One of the interesting columns is that which relates to the limit of municipal indebtedness with its frequent exceptions in favor of water works, and its expandibility by special vote, as in North Dakota, where by the constitution the municipal debt is not to exceed 5 per cent, on the taxable property, ex- cept that a city may expand the limit, 3 per cent. (i. e., make it 8 per cent.) by a two-thirds vote, and neither limit is to pre- vent the raising of funds to establish water works. There are also statute provisions requiring a referendum. on the issue of bonds for buildings, fire apparatus, water works, sewers, street improvements, etc. Another attractive part of the Table is that relating to local selection of local officers, especially the police column, and the LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 439 results of experimenting with state boards and metropolitan police laws in reference (o New York and Boston and other large cities in various states. The matter of jails, poorhouses, cemeteries and hospitals is very important, and the question of schools, libraries, parks and baths, which may do much to relieve the pressure on the aforesaid, is also of vital moment. Education is undeniably a state interest. But it is also a muni- cipal interest. The state properly determines the broad lines of policy. The municipality properly carries on the schools upon those lines, with wide discretion, local ownership and large control. The state may fix a minimum, co-ordinate all parts of the system and stimulate progressive movement, but the city or town should be free to go as far beyond the mini- mum as it can, and have large liberty to express its individu- ality. The difference of quality in the measures behind the crosses in these columns is sometimes very great. For example, in New York free public baths must be established in 1st and 2d class cities. In Massachusetts, towns may establish public baths. So in most cases the provision regarding the establish- ment of libraries is permissive, but in Michigan a free library must be established in every township, and the clause is in the constitution. The difference in quantity is also considerable as well as in quality and force. Sometimes the provision only applies to one or two classes of municipalities, as just noted in the New York bath law; probably the smaller cities of New York state are not so much in need of compulsory washing as dusty New York and smoky Buffalo. As a rule, however, the whole group we are studying (including all cities, towns and villages) is behind each cross. The most interesting columns of all are those relating to the streets and the local services which usually involve street fran chises; as gas, electric light, street railways, telegraph and telephone systems, local consent and power to grant franchises. It would be profitable to take each state in order, bring to a focus the substance of all its provisions on these subjects and then note unities and contrasts and draw conclusions. Space, however, will not permit us to write out the record fully here.. 440 THE CITY FOR THE PEOrLE. We will say a word about street railways and telephones, and then take municipal lighting and local control of franchises for a somewhat fuller treatment, choosing these subjects for detailed discussion because they represent the area of greatest movement — most rapid advance toward municipal liberty in the last few years. In five states there are general laws empowering municipali- ties to own and operate street railways. In Minnesota, any city or village may, on a two-third referendum vote, buy and operate street railways. In California, the power to build or buy, own and operate street railways is given to 6th class cities (those of less than 3,000 inhabitants). The same full power is conferred in Indiana upon cities of 35,000 people or more, belongs to every city council in Utah, and to every incorpor- ated city and town in "Washington. (See Laws of 1897, Chap. 112, and Washington "Codes & Statutes," 1897, §1076.) In 11 states there are general laws authorizing municipal telegraphs or telephones or both, and in 6 of the states the power is commercial. Maine, Massachusetts and Vermont give their totems a general right to put up telegraph and tele- phone wires for their own use. North Dakota and Utah allow cities to erect municipal fire signals. (Cities would have this right anyway under the general police power, without any specific law either general or special.) 1 In Kentucky, 3d class ( 1 ) It Is well to remember, in dealing with Table II, that the absence of feneral legislation does not always indicate the absence of municipal power, 'or example, some states have no general laws conferring on cities or towns the right to establish fire departments, yet it is practically a universal fact that cities and towns have that right under special provisions of their charters or as an implied authority under the broad power to provide for the safety and welfare of the community. (Dillon, §143.) Perhaps authority to establish a telegraph or telephone system for the use of city police and other officials might also be implied under the general police power. Markets may be established by municipalifies under implied authority based on ancient usage. (23 Pick. 71, C. J. Shaw.) Power to establish cemeteries and hos- pitals will doubtless be implied from the general welfare or police clause usual in municipal charters, and I think the power to establish public parks and bath houses, which may help to make hospitals unnecessary, ought also to be implied from the said clause. The lighting of streets, being a measure strongly favoring safety and morality, should fall in the same class. A municipality having power to pass ordinances respecting the police of the place, and to preserve health, is authorized as a sanitary and police regulation, to procure a supply of water and may bore an artesian well or take any other requisite steps. (Dillon, §146, 8 Mich. 458; 66 Ind. 396; 31 Ala. 542.) But while the right to establish water works is within the ordi- nary broad charter powers and needs no express grant, yet it Is subject to arbitrary revocation by the legislature at any time. For example, the city of Memphis spent $30,000 getting plans, etc.. for water works, then the legislature granted a private company the exclusive right to build water works in Memphis. This was held to revoke the city's right, altho it had begun to build. (Memphis v. Memphis Water Co., 5 Heisk. 495.) For gas, electric light, street railway, telephone and other plants, for serving the Inhabitants generally, there is no doubt that authority will not be implied, HOME EULE FOR OUR CITIES. 441 cities (8,000 to 20,000) may supply inhabitants with tele- phone service. In Washington, 3d class cities (1,500 to 10,- 000) and towns (all municipalities of less than 1,500 inhabi- tants) have authority "To permit under such restrictions as they may deem proper, the laying of railroad tracks and the running of cars drawn by horses, steam, electricity or other power thereon, or the laying of gas and water pipes in the public streets, and to construct and maintain and to permit the construction and maintenance of TELEGRAPH, TELE- PHONE (and electric light) lines therein." (Track and Pipe clause, Codes & Statutes, 1897, §938, 13.) Note that the general charter laws for 1st class cities (those over 20,000) and 2d class cities (those between 10,000 and 20,000) do not con- tain the above clause. 2d class cities, however, in common with 3d class cities and towns "may purchase, leceive, have, take, hold, lease, use and enjoy property of every name and description, and control and dispose of the same for the com- mon benefit." One not familiar with legal ways of doing things might think that this would cover the telephone and everything else, and it might be so held in court. If such a grant of power stood alone it would be very broadly construed, but as it is accompanied by a long enumeration of powers to establish water works, hospitals, docks, etc., the courts may 3onstrue the broad power in reference to the enumeration and .iold that the broad clause gives authority to acquire and hold property of all sorts when needful for the specific purposes named in the express enumeration of powers. In California, 3d class cities (15,000 to 30,000) have the same Track & Pipe clause as in Washington except that the italicized words and those in parenthesis are omitted — 4th, 5th and 6th class cities (which three classes include all munici- palities under 15,000 inhabitants) have the Track & Pipe clause, italicized words, and all except the parenthesis. 1st class cities, or those over 100,000, have no "Track & Pipe" clause except this: "To permit the laying down of railroad that special requests are apt to meet with strenuous opposition and frequent defeat, and that no substantial liberty in these directions is possessed b.r municipalities in the absence of general laws or constitutional provisions. The same thing Is true in respect to the columns that deal with franchises, local consent and power to grant. 442 THE BONDAGE OF CITIES tracks and running of cars thereon along any street, for the sole purpose of excavating and filling in a street, and for such limited time as may be necessary for the purpose afore- said and no longer." The only power such cities have under general law to construct and operate lines for the transfer of intelligence by wire, is to maintain fire alarm and police tele- graphs in the city or city and county. "We find, therefore, that in California, municipalities under 15,000 have unrestricted power to build and operate telegraph and telephone systems, but for larger places there is no general provision authorizing anything more than a fire alarm and police telegraph. The law so exactly mirrors the interests of the corporations that one cannot help having a suspicion that municipalization of the telephone is not permitted in the large cities because the private companies want to keep those cities for themselves, while municipalization is permitted in small places because there is little or no inducement for the big corporations to go there — they can use their money "to better advantage" in the larger cities. In Minnesota, any city or village, on a 2/3 referendum vote, may buy and own and operate a telephone plant. And in Indiana, a general law provides that any city of more than 35,000 inhabitants may build or buy and operate telegraph or telephone lines to serve the city and its inhabitants, or may purchase and hold a majority of the stock of any corporation organized for such purpose. (For Wise, see Appendix II, U.) MUNICIPAL LIGHTING LAWS. We come now to municipal ownership of lighting-plants and will then consider local control of franchises. In dealing with gas and electric light, we shall try to give an idea of the provisions that go with the light laws; so that they may be seen in true relations to their surroundings. We shall find that this method will lead us by almost insensible gradations to the study of local consent and powers of grant. In Maine, Vermont, Rhode Island, Delaware, Maryland, South Dakota, Virginia, North Carolina, Alabama, Louisi- ana, Arkansas, Nevada and Wyoming, there appears to be TO POLITICIANS AND MONOPOLISTS MUST CEASE. 443 no general legislation permitting cities and towns to own and operate gas or electric light plants. 1 New Hampshire, Illinois, North Dakota and Texas have general laws allowing municipalities to provide light for streets. Under this authority a municipality may build works of its own or contract with others to light the streets. (Levis v. iSTewton, 75 Fed. 884.) In Idaho, sl city or village may provide light for public pur- poses and, by the laws of 1897, may grant exclusive gas fran- chises to light the streets. In New York, gas may be furnished for public use by any village owning water works. In Ohio the law permits any city or town to erect or pur- chase gas-works whenever the council deems it expedient. 2 And a city may procure its own gas-works, and supply the city and its citizens, altho a gas company incorporated before this law was enacted is in operation in the city and is not in any default. The construction of gas-works by the city under such a law does not impair the obligation of contract. The gas companies took their charters subject to such contingencies, which might arise at any time by the exercise of legislative power to authorize municipal works. 3 (See Appendix H, U.) In Oeorgia, a town or village may erect gas . works. In Oregon, any city or town may build gas works. In Montana, all municipalities may build gas or electric light works, and in Mississippi, all municipalities may buy gas or electric light works. Connecticut gives all municipalities the right to build or buy gas or electric light works and sell to the citizens. No. 115 of Michigan's laws for 1891 gave any city or incorporated village the right to build or buy, maintain and operate, works to supply the city or village and its inhabitants with gas, 0) I say it "appears to be" because it is not easy to be absolutely certain about a negative relating to large masses of miserably Indexed statutes. Great care has been taken and every volume of statutes has been examined under 30 odd topics or index heads. Still some pertinent facts may have escaped the notice of the writer or his assistants, and if any reader discovers an error of omission or commission, it will be appreciated as a favor if he will call attention to it by a line to the writer at Boston University Law School. ( 2 ) Ohio Statutes, Revis. of 1897, §§2486-7; State v. City of Hamilton. 47 Ohio St., 52; Hamilton Gas Light Co. v. Hamilton City, 146 U. S., 258, 265-6 <1892t. P> Hamilton Gas Light Co. v. Hamilton City, 146 U. S., 258, 268 (1892- . 444 MUNICIPAL LIBERTY. electric or other light. On petition of 100 voters the common council or board of trustees must submit to a referendum at the polls the question whether the city or village shall avail itself of the provisions of the law. On such referendum the law required a 2/3 favorable vote. This law was superseded by iSTo. 186 of the same year, 1891, which provided that any city or incorporated village may build or buy, maintain and operate works to supply the city or village and its inhabitants with gas, electric or other light, or contract for furnishing the same. Then follow initiative and referendum provisions like those above except that a majority vote is sufficient, and then we find a proviso that the clause relating to purchase, con- struction, maintenance and operation shall not apply to cities having more than 25,000 inhabitants. Law No. 139 of- 1893, provides that any city or incorporated village of not more than 8,000 population, which already owns and operates electric light works for its streets, may supply the inhabitants also. The private companies evidently wish to keep com- mercial lighting in the big cities for themselves as long as possible. In Tennessee, all cities of more than 36,000 population may build or buy gas and electric light works to supply streets and public buildings and may supply gas to the people. In West Virginia, the council of a city, town or village may erect or authorize or prohibit the erection of gas, electric light or water works. In Iowa, a city or town may purchase, establish, erect, maintain and operate, within or without the corporate limits, water works, gas works, electric light and power plants, and may grant to individuals or corporations authority to erect and maintain such works. The term is not to exceed 25 years. !No exclusive franchise is to be granted, and no such plants can be authorized, established, erected, purchased, leased or sold, or franchise extended or renewed unless the proposition is favored by a majority of the electors voting on it at a general or special election. Under these provisions, it is held that a municipality may supply its inhabitants with light or water by a plant of its own altho a franchise for the same purpose LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 445 may previously have been granted by the municipality to a private company. (Thomson Houston Elec. Co. v. Newton, 42 Fed. Hep. 723 — bill to enjoin the city from erecting an electric plant, the company having spent $20,000 in building a plant under its franchise previously granted it by the city, and being able to furnish all the electricity needed. See Iowa Code, 1897.) This is according to the principles of com- petitive business acted on by the corporations themselves — if you're not sharp enough to make a cast iron contract thai will protect you all round, you must suffer the consequences — but it is not just for a city to disregard what is fair to others any more than for a private company to do so. Colorado gives all municipalities the right to build or buy water or light works or grant light or water franchises. But no water or light works shall be constructed or authorized .un- til sanctioned by vote of the people. Where municipalities have the power to grant franchises together with a general power to build or buy without limiting words, full commercial power or authority to sell to private consumers as well as to light streets and public places, would seem to be implied. Utah 9 8 statutes in a single clause give city councils power to construct and maintain water works, gas works, electric light works, street railways, or bath houses, or. to authorize the construction and maintenance of the same by others, or to purchase any or all of said works from any person or cor- poration. In New Jersey, all cities may buy electric or gas or other light, or water works, and the franchise, and supply the city and its inhabitants. In Wisconsin, any city or village may buy water works or light plants; municipalities may build lighting plants for street, service, and may buy commercial plants, or, if there are none or none willing to sell, the city may erect such plants. In Pennsylvania, boroughs may light the streets, and 3d class cities (those under 100,000 population) have the exclu- sive right to supply the city with gas or other light, or with water, and to erect works or authorize others to supply gas, light ot water. The councils of any 3d class city, if author- 446 the city fob the people. ized by a referendum vote at the polls, may buy (for such price as may be agreed on between the councils and the com- pany's stockholders) all property of a water, gas or electric light company, and exercise all its rights. It is further pro- vided that at any time after 20 years from the introduction of water or gas into any place by a private company, the town, borough, city or district in which the said company is located may become owners of the property by paying the net cost of erecting and maintaining the same, with interest thereon at 10 per cent, per annum, deducting from said interest all divi- dends theretofore paid. No company is to go in where the municipality has built works, except by consent of the muni- cipality. In 1891, Massachusetts passed an act permitting cities and towns to manufacture and distribute gas and electricity, build or buy, maintain and operate, gas or electric light works, and supply light to the city or town and its inhabitants. An amendment in 1894 permitted municipalities to furnish gas or electricity for heat and power except for operating electric cars. A city must have a 2/3 vote in each council and ap- proval of the mayor in each of two consecutive years, and rati- fication by the majority of the electors at an annual municipal election. A town must have a 2/3 vote in each of 2 legal town meetings, 2 to 13 months apart. The municipality must buy suitable existing works if the owners file a schedule of property and terms of sale with the clerk of the city or town within 30 days after the final vote to establish municipal works. The price of the property "shall be its lair market value for the purposes of its use (no portion of such plant to be estimated however, at less than its fair market value for any other purpose) including as an element of value the earn- ing capacity of such plant based upon the actual earnings being derived from such use at the time of the final vote. Such value shall be estimated without enhancement on ac- count of future earning capacity or good will, or of exclusive privileges derived from rights in the public streets." Any locations or similar rights acquired from private persons must be paid for, and damages suffered by the severancj of any por- HOME RULE FOR OUR CITIES. 447 tion of the property lying outside the municipal limits are allowed, except where the main plant lies outside. Within 60 days after the filing of the schedule, either party may petition the Supreme Court to appoint special commissioners to esti- mate the price, and appeal lies from these commissioners to the Supreme Court. The Florida acts of 1897 contain a statute modelled thru- out on the Massachusetts law. It does not, however, require; double adoption — a 2/3 vote of council, approval of mayor and ratification by the voters at the polls being sufficient with- out repeating the operation the following year. If the propo- sition fails at the polls, no similar proposal can be submitted for ratification within one year. The extreme restrictions in Massachusetts are due to the strenuous efforts and powerful influence of the corporations. It took a three years' hard fight to get the law, and even then it was not possible to pass it except with corporation amendments which seriously dimin- ish its value. In Minnesota, any municipality may build or buy water, gas, electric light or heat plants and sell to inhabitants, and under another law may buy street railways or telephone or power plants. (See below.) In Missouri, any municipality may build or buy water, gas, electric light or power plants and sell water, gas, etc., to in- habitants. In Kansas, under the laws of 1897, any municipality may build or buy water, gas, electric light or power, water or heat- ing plants, and sell to inhabitants. In Nebraska, 1st and 2d class cities may build or buy gas or electric light plants and sell the product. In California, there are general provisions, 1st, that the common council may provide for lighting the city; 2d, that 6th class cities (all municipalities under 3,000 inhabitants) may acquire, own, construct, maintain and operate street rail- ways, telegraph and telephone systems, gas and other works for heat and light; 3d, that 5th class cities (municipalities be- tween 3,000 and 10,000 population) may purchase, lease or construct water or electric light works and sell water, heat light and power 448 THE BONDAGE OF CITIES South Carolina's constitution, 1895, provides that any city or town, on a vote of a majority of its electors, may build or buy water works or light plants and supply its inhabitants. The Washington statutes of 1897, Chap. 112, provide that any incorporated city or town may construct or buy, own and operate, water works (within and without its limits), gas, elec- tric light, or other light plants (to serve the city or town and its inhabitants with public or private supplies of water, light, heat and power), and cable, electric or other railroads within its limits for the transportation of freight or passengers. A referendum is necessary, and if debt is to be incurred the proposition must be adopted by a 3/5 vote at the polls. The "Indiana Statutes," of 1896, contain three most inter- esting provisions as to franchises: one relating to cities of 35,- 000 to 50,000 population, another to cities between 50,000 and 100,000 and a third to cities over 100,000. The three long enactments are identical. Their substance is that the city board of public works (appointed by the mayor) shall have power to purchase or erect, by contract or otherwise, and oper- ate gas works, electric light works, street cars and other lines for the conveyance of passengers and freight, telegraph and telephone lines, steam and power houses and lines, to supply the city and its inhabitants, or to purchase and hold a majority of the stock of corporations organized for either of the above purposes. Also to contract for the furnishing of gas, steam or electricity, light or power to said city or the citizens thereof, and in such contract fix charges. To authorize and empower by contract, telegraph, telephone, electric light, gas, steam, or street car or railroad companies to use any street, and pre- scribe terms and conditions of such use, except that franchises are not to be for longer term than 25 years nor for a less re- turn than 2 per cent, of the gross receipts. The exercise of all these powers is subject to the approval of the city council which has "exclusive control of the streets." New Jersey, Missouri, Texas and Kentucky also have provisions giving municipal authorities "exclusive" control of streets. In Kentucky, 2d class cities (20,000 to 100,000 people) may provide lights, by themselves or others, for streets and TO POLITICIANS AND MONOPOLISTS MUST CEASE. 449 inhabitants; 3d class cities (8, 000 to 20,000 people) may pro- vide the city and its inhabitants with water, light, heat, power, and telephone service by contract or works of its own; 4th class cities may light public places by gas or otherwise; and in 1st class cities (over 100,000 i. e., Louisville) the board of public works has exclusive control of the lighting and use of streets. The Kentucky constitution of 1891 provides, §163, that "no street railway, gas, water, steam heating, telephone or electric light company in any city or town" shall lay its tracks, pipes, wires, etc., without consent of the local legisla- tive authority, and §164 declares that "no county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege or make any con- tract in reference thereto for a term exceeding 20 years. Be- fore granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder. But it shall have the right to reject any and all bids. This section shall not apply to a trunk railway." This principle of sale of franchise to the highest bidder is also recognized in New York, Ohio, Wisconsin, Missouri, Louisiana and California. In all, the method has been applied to street railway franchises, and in California, Wisconsin and Kentucky it has a much wider application. Generally the sale is to the company bidding the highest percentage of gross receipts, but the bid may be for so much cash down, as in New Orleans, or the franchise may be sold to the company agreeing to serve on the lowest fare, as in the Ohio provision (relating to 2d class cities, i. e., Cleveland). New Orleans has sold street railway franchises for cash at various times since 1879 when she first advertised for sealed proposals. Chap. 370 of Wisconsin's laws of 1897, provides for publication of full specifications, rates, etc., and advertisement for bids, before any city or village can grant a franchise to establish and oper- ate a street railway, gas or electric plant, or water works or telephone system or other franchise involving the use of the streets. Chap. 361 provides for the submission of water and lighting grants to the voters at the polls, and requires such submission if 20 per cent, of the voters petition for it. 29 450 MUNICIPAL LIBERTY. In California, by the laws of 1897, "every franchise or privilege to erect or lay telegraph or telephone wires or con- struct or operate street railways- on any public street or high- way, to lay gas or water pipes, erect poles or wires for trans- mitting electric power, or light, or to exercise any other privi- lege whatever hereafter proposed to be granted by the board of supervisors, trustees, county commissioners or other govern- ing body of any city, county or town (excepting steam rail- roads, telegraph lines, and renewals of franchises for piers,, chutes and wharves) shall be granted on the following con- ditions/' viz: the application must be advertised for 10 days, with a statement that bids of so much per cent, (not less than 3 per cent.) of gross receipts will be entertained. The bids must be opened in open session and the franchise or privilege must be awarded to the highest bidder. The gain to the people from such notice and sale is a matter of much interest, as is also the exception clause. Ey a Missouri statute of 1895, cities, towns and villages are to sell all franchises for electric light, gas, water or transit to the bidder offering the highest percentage of gross receipts. In New York state, since Jan. 1, 1875, the legislature has been under constitutional prohibition in respect to special legislation granting the right to lay down railroad tracks, or confer exclusive privilege, franchise or immunity, and has not been able even under general law to give street railway com- panies a right to construct and operate roads in the streets of cities and towns, the consent of the local authorities being re- quired for this by the constitutional amendment of "Nov. 3, 1874; in force Jan. 1, 1875. In 1884, the legislature gave any incorporated city or village the right to sell street railway franchises at auction. The law did not require such sale. It was merely optional, and the New York Board of Alderman took advantage of this fact to give the Broadway Surface Rail- road Company the right to operate a road from Union Square to South Ferry, exacting nothing but the 3 per cent, of gross receipts (5 per cent, after the first five years) which was the minimum allowed by the law. The Cable Railway Company had offered $1,000,000 cash in addition to the statute per- LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 451 centages, but the Broadway Surface people bribed aldermen at the rate of $20,000 each and secured the franchise at a cost of $500,000 for bribes, lobby expenses, etc. 1 — half a million went to a few for corruption, in place of a million to the public for an honest franchise. Almost all the aldermen and officers of the Broadway Company were indicted, and a few convicted, and public indignation over the transaction led to the Cantor Act of 1886, which provided that all incorpor- ated cities and towns must sell their street railway franchises at auction (except in case of companies already organized in municipalities of less than 40,000 people). The public sale of street railway franchises was now obligatory instead of optional. But as public sentiment and attention lapsed, cor- porate interests made themselves felt, and in 1890, the auction plan was restricted to cities above 90,000 inhabitants. In 1892 the Cantor plan was further eliminated from the law so that it ceased to exist except as to the single city of New York, and now the charter of Greater New York leaves it in doubt whether the auction principle has not been banished even from that city. The charter says that "nothing in this act shall repeal or affect the existing general laws of the state in respect to street surface railroads," but §77 looks the other way and §§73 and 74 (see below) quite clearly indicate an intent to substitute full discretion and publicity for the obliga- tory auction plan. It would seem, therefore, that at present cities and towns in New York may sell street railway fran- chises at auction if they wish, but are not obliged to. Several remarkable sales have occurred. In 1887, a premium of 26.3 per cent, of the gross receipts was bid for the 28th and 29th Street franchise, and 35 per cent, for the Ful- ton Street line in New York. The latter agreement was com- promised after 6 years by the Sinking Fund Commissioners for 5 & 1/8 per cent., as the company claimed that it was losing money, and the 28th and 29th Street crosstown line was not operated till the Commissioners agreed to let the company off for half of 1 per cent, above the 3 per cent, statute minimum. In 1895, the Third Avenue Extension was sold for $250,000 C 1 ) N. Y. Senate Doc. 79, 1886, Report of Road Cora, on Broadway S.R.O©. 452 THE CITY FOR THE PEOPLE. cash and a premium of 38^ per cent., making, 1 \/ith the sta- tute minimum, 41£ per cent, each year for the first five and 43^ per cent, each year afterward besides the $50 car tax. In the same year The People's Traction Company and its com- petitors carried the bidding into the clouds for the capture of a short route important to the People's Company as a connect- ing link between its system and a prospective line outside the city limits. At the end of the day's bidding, the People's Company had offered 6975 per cent., or about 70 times the entire gross receipts. The next day the People's Co. and one of its rivals were ready to go on bidding, but a third company got out an injunction on the sale. The case went into the courts, and the franchise was awarded to the People's Co. for 100 per cent., but an appeal has been taken. It is said that the People's Co. could afford to pay many times the receipts of the short line rather than lose the link in its contemplated system. And it is also said that the company could arrange to make no •charge for transfer over the short route so that the gross re- -ceipts would be nothing and the city would get nothing how- ever high the bids might run, since 6975 per cent, or 10 mil- lions per cent, of nothing is still nothing. The charter of Greater New York provides (§16) that the municipal assembly may grant street railway franchises, and establish, maintain and regulate ferries. By §71 the rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks and other public places are hereby declared to be in- alienable. By §73, no franchise or light to use the streets shall be granted by the municipal assembly for more than 25 years, but the grant may, at the city's option, contain a pro- vision for renewals (at fair revaluations) not exceeding 25 years in the aggregate. The grant may provide that, at the end of the term, the whole property of the grantee shall be- come the property of the city without further compensation, or it may provide for a valuation and payment of that valua- tion. If the property becomes public without money pay- 0) This sale was annulled on the ground that the cash bonus was beyond •the law, and that the extension Included two routes. Beckman r. Third Ave. «R. R. Co.. 153 N. Y., 144. HOME RULE FOR OUR CITIES. 453 inert, the city may operate it, or lease it f r a term not exceed- ing 20 years. If the city takes the property by payment it must operate it for at least 5 years, after which it may con- tinue to operate it or may lease it for limited periods in the same manner as it does its docks and ferries. By §74, the full terms of every proposed grant of franchise or right to use the streets must be published in the City Record for 20 days before the grant is made and at least twice in 2 daily news- papers, must be approved by the board of estimate and appor- tionment, must receive a 3/4 vote by ayes and noes in each branch of the assembly and the approval of the mayor. A 5/6 vote of each branch is necessary to pass a franchise over the mayor's veto, and at least 30 days must intervene between the introduction of any franchise granting ordinance and its final passage. The New York Charter is complexly careful or carefully complex, and yet it does not adopt the most important of all checks upon corrupt or injudicious franchise grants, the in- itiative and referendum, which Ave have found in the new freehold charter of San Francisco, and in a less complete form, in the laws of "Wisconsin, Michigan, Massachusetts, Florida,. South Carolina, Colorado, Washington, Pennsylvania, and Iowa. Other examples will occur as we proceed. LO-CAL POWERS OF CONSENT, GRANT, &C. The reader has doubtless noted, that as I predicted, we have drifted from powers of ownership to powers of grant. The laws often deal with the two in the same paragraph, and they are in reality merely complementary portions of the right of local self government in respect to local franchises. "We have covered the entire body of statute law, and find that there is. but one state in the Union (Louisiana) that has no general legislation requiring local consent for street railways, water, gas, electric light, telegraph, telephone and other street ser- vices, or empowering municipalities to grant such franchises. 1 Delaware, Maryland and Nevada have almost nothing, but ( a ) Perhaps the Louisiana law of 1896 empowering municipalities to make their own charters should be considered as an indirect contribution under this head. 454 THE BONDAGE OF CITIES still there is a glimmer of light even in Delaware, it being enacted that a street railway shall not use a county bridge or road without consent of the county levy court elected by the citizens of the county — a mere scintilla of local self govern- ment in respect to franchises, but enuf to save Delaware's general laws from Egyptian darkness. Maryland requires consent of municipal authorities for water works, and Nevada authorizes cities and towns to grant gas and water privileges From these minimum recognitions of local right we pass by a series of gradations thru the meagre measures of Alabama, North Carolina, Georgia, Arkansas and New York up to the larger provisions of Massachusetts, South Dakota, Pennsyl- vania, Ohio, Illinois, Colorado and Montana, and the sweeping- laws and constitutional safeguards of Indiana, Iowa, Wis- consin, Minnesota, Missouri, Kansas, California, Kentucky, Tennessee, Rhode Island, Utah, Wyoming, Washington. South Carolina and Florida. One of the commonest recognitions of local right to control street services is a provision requiring street railways to get local consent to construct their tracks and subjecting their locations to municipal control. In 16 states (California, Wyoming, Utah, Montana, Kentucky, Alabama, North Da- kota, Kansas, IOWA, Missouri, Minnesota, Wisconsin, Indiana, Ohio, New York, Rhode Island) there are effective provisions relating to the grant of street railway rights and franchises by municipalities. The states in italics provide for sale of the franchise, and Iowa requires a referendum. Thirty- five states expressly require local consent, and generally it is a necessity, there being no appeal from the local decision. In 13 states (New York, West Virginia, Illinois, Missouri, Nebraska, South Dakota, South Carolina, Georgia, Alabama, Kentucky, Idaho, Colorado, and Wyoming) a provision re- quiring street railways in cities and towns to get the consent of the local authorities has been put in the constitution. A constitutional clause of this kind is of course bed-rock, not liable to be overturned by legislative action or appeal to state commission or court — a bit of real municipal sovereignty. In Kentucky, as we have seen, the provision requir- TO POLITICIANS AND MONOPOLISTS MUST CEASE. 455 ing local consent includes steam-heating, gas, water, street railway, telephone, and electric light in cities and towns, and in every case the municipality must sell the franchise to the highest bidder for a term not over 20 years. In South Carolina also, consent of the municipal authorities is necessary by the constitution not only for street railways, but for any railroad track, gas or water pipes, telegraph, tele- phone or electric light wires. In Wyoming, the constitutional clause covers the telegraph, telephone and electric light, and in South Dakota it covers the telegraph and telephone. Twenty-six states make local consent necessary for gas (con- stitutional provision in Kentucky and South Carolina, statute elsewhere), and 15 of these states with 14 others confer upon local authorities the right to grant gas privileges. A right to grant must be distinguished from a requirement for local con- sent. The latter clearly indicates a policy of local control, but accords no right of initiation; while authority to grant gives power of initiation, but unless the authority is exclusive it affords no certainty of control. A mere power to grant does not exclude the idea of independent grants by the legislature directly ; it is on its face only a concurrent power. A require- ment of local consent is on its face a veto power and may be more valuable than a right to grant unless it is exclusive, in which case it includes the local consent idea, and is a creative and a veto power in one. Twenty-one states require local consent for electric light (constitutional provision in South Carolina, Kentucky and Wyoming); 10 of the 21 and 14 others confer the right of grant. Eighteen states recognize by general law the principle of local consent in respect to telegraph (Kentucky, South Carolina, South Dakota and Wyoming in the constitution); 5 of the 18 and 8 others accord to some or all municipalities the right to grant telegraph privileges. With the telephone it is local consent in 17 states (same 4 in constitution); 6 of the 17 and 10 others, grant. (See Appendix II, U.) These summaries afford some idea of the almost universal recognition of the right of local self government in respect to streets and franchises. The field of this recognition is of 456 MUNICIPAL LIBERTY. course much broader than this discussion. We have not at- tempted to deal with municipal regulation of local services — a topic of enormous girth. The lowest forms of power that might fall within the lines of local consent and right of grant are what may be called the right of designation (which is really a regulative power) and the right of consultation. An example of the first is the local right to designate locations for railway tracks or telegraph posts without the right to refuse all locations. (See below.) An example of the second is the right of selectmen to grant or revoke licenses for telegraph, telephone or electric light poles and wires, subject to appeal to the Superior Court, as in New Hampshire. The highest form of authority is a sweeping statute, or bet- ter still a constitutional provision, giving complete and ex- clusive powers of grant and revocation, purchase, erection, ownership and operation to every municipality, subject to the initiative and referendum, and possibly, in some cases, to the consent of a majority of the property owners chiefly affected. The principle of the initiative in respect to these franchises is recognized in the general legislation of three states (Wiscon- sin, Michigan and Nebraska), and the referendum in eleven (Colorado, Florida, Iowa, Massachusetts, Michigan, Minne- sota, Nebraska, Pennsylvania, South Carolina, Washington and Wisconsin). In most cases these principles are only parti- ally applied, as follows : Colorado, gas, electric light and water. Florida, gas, electric light. Iowa, gas, water, electric light and power, telegraph, tele- phone and street railways. Massachusetts, gas and electric works. Michigan, gas, electric or other light. Minnesota, gas, electric light, street railway, water, tele- phone, heat and power. Pennsylvania, 3d class cities, gas, electric light, water. South Carolina, gas, electric light, water. Washington, gas, electric or other means of light, heat„ power, water, cable, electric or other railways. Wisconsin, gas, electric light, water. LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 457 Nebraska, municipal initiative and referendum covering all contracts, grants, franchises and ordinances of every sort (law of 1897), but the percentage of voters re- quired to demand the referendum is high. South Dakota, general state and municipal initiative and referendum (amendment to constitution, passed legislature, 1896, adopted by the people in Nov., 1898, by a large majority). We have included water where it occurred in connection with the franchises specially discussed, but have not searched specially for referendum provisions relating to water works, or possibly the list would be somewhat longer. The consent of property owners is required by general laws as follows: Connecticut (see below) electric light, telegraph, telephone. Illinois, gas, electric light, L roads. Kansas, cities over 40,000, street railways. Missouri, street railways. North Dakota, street railways. New York, (see below) street railways. Sometimes the owners of more than half the frontage must assent (as in Illinois, North Dakota, etc., see below); some- times the owners of half or two-thirds of the value (see New York below) ; sometimes a majority of the persons owning pro- perty on the line (see Kansas below). In Connecticut and New Hampshire, the local authorities have exclusive direction of the places of tracks. In Connecticut, no telegraph or telephone or electric light company, or company distributing electricity by wires or similar conductors, or using wires or conductors for any pur- pose, can place them in the streets or highways without con- sent of the adjoining proprietors or of tivo county commis- sioners (appointed by the General Assembly). Subject to this and to appeal to the superior court (appointed by the Governor and Legislature), the council of a city and selectmen of a town have full control of the location, re-location or re- moval of the aforesaid wires and conductors. In New Hamp- shire, appeal lies to the supreme court from the decision of 458 THE CITY FOR THE PEOPLE. selectmen respecting telegraph and telephone privileges. In Maine, the local consent to street railways provided for by the Laws of 1895, p. 81, is subject to appeal from the municipal officers to the supreme court. The state lets the municipality go out of doors and walk around a bit, but keeps a pretty big string tied to it; except the right to build or buy light works, it has really nothing but rights of consultation, designation and regulation — no power of veto, little power of construction, very little real sovereignty. Several of the sweeping provisions above mentioned have already been noted while speaking of municipal ownership (see paragraphs about Indiana, Iowa, Wisconsin, Missouri, California, South Carolina and Kentucky a few pages back). The Minnesota Statutes (1894) §2592, provide that no cor- poration shall establish gas, electric light, heat, transportation, or other improvement except on obtaining a franchise from the city or village council, and making just compensation, and at the end of each and every franchise period of five years the council may, on a two-thirds vote of the electors of the city uir village, buy at eminent domain value and own and operate the gas, electric light, street railway, water, telephone, heat or power works. That is something worth having in the way of local self government. Take out the five year limitation, ex- tend the referendum to the granting of franchises, add the initiative on a 5 per cent, petition, authorize cities to build at the start, and put the whole thing in the constitution, beyond the reach of legislative interference, and municipal freedom and sovereignty would be established in respect to the most important local services of a monopolistic character. In Kansas, by the laws of '97, any municipality may grant gas, electric light, water, heat or power privileges for a term not exceeding 20 years, and it may be terminated in 10 years. Forty days notice of application for a franchise or renewal must be published, and the municipality must reserve rents for the use of streets. Provision is made for filing items of construction cost, income and outgo by the companies, the items to be open to public inspection. In 1st class cities (those of more than 15,000 inhabitants) the mayor and council may HOME .RULE FOR OUR CITIES. 459 gTant rights of way for telegraphs, telephones and electric light works; may grant street rights for laying gas, water and ■*team pipes and conduits for electric light wires; provide for and regulate and grant railroad and street railway rights in streets, but cannot give an exclusive right; and may grant per- mits to mine coal. No city of more than 40,000 people can grant street railway rights without the assent of a majority- of the persons owning property on the line. Tennessee requires local consent for water, gas, and street railways and provides that all municipalities may grant privi- leges in the streets. Florida requires local consent for tele- graph and telephone; authorizes cities and towns to grant water, gas and electric light privileges; and provides that fran- chises to use the streets for a public use shall be granted only by the mayor and council. Utah requires local consent for street railways, telegraphs and telephones, and provides that city councils may grant franchises for water, gas, electric light, street railways and wires in streets, and may permit or prohibit railroad tracks. In Wyoming, the constitution makes local consent necessary for street railways, telegraph, tele- phone and electric light, and by statute local consent is re- quired for gas, and any city or town may grant gas, or electric light privileges, and street railway franchises are not to ex- ceed 10 years on reasonable conditions. In addition to the sweeping power of grant stated on p. 444, the Iowa statutes provide that a city or town may authorize or forbid street rail- way or any railroad construction in the streets. In Missouri also, besides the constitutional necessity of local consent for street railways, and the broad statute requiring cities, towns and villages to sell water, gas, electric light and transit fran- chises to the highest bidder, there is a statute relating to cities •of the 3d class (3,000 to 30,000) which provides that the council shall have exclusive power to grant street railway franchises with the assent of property holders along the route. Rhode Island provides that a city or town may grant "rights and franchises in, over or under highways," for water, gas, electric light, heat or power, street railways, and telephones. The franchise granted may be exclusive for a term not exceed- 460 THE BONDAGE OF CITIES ing 25 years. With the exception of California and Missouri; the great states containing the giant cities have not taken a very advanced position in respect to municipal control of franchises. The Constitution of New York, Art. 3, §18, makes consent of the local authorities necessary to the con- struction or operation of a street railway in a city or town. The consent of the owners of at least half the property (that is, half in value) abutting on the route is also required, or else the assent of three commissioners appointed by the Appellate Division of the Supreme Court, which assent, when confirmed by the court, will answer instead of the consent of the property owners, but nothing will take the place of the consent of the local authorities. Under this constitution, the right to con- struct and operate a road in the streets of a municipality can only be obtained from the local authorities and on such terms as they choose to impose. (People v. O'Brien, 111 N.Y., 1.) The legislature can authorize and regulate the organization of street railway companies, but only the city or town can give those companies the right to build and operate in their streets. This is a little bit of real sovereignty. By statute, the consent of the owners of two-thirds of the abutting property is neces- sary to constitute owners' assent to a street railway in a town? owners of half value will do in a city. (1896 vol. I, p. 777.) A gas or electric company must get municipal consent to use the streets. The Illinois constitution requires local consent for street railways. 'By statute, local consent is necessary also for tele- graph and telephone wires and railroad tracks. No L road can be built except by permission of the council or trustees on petition of the property owners on the route. No city council or president and trustees of a village or incorporated town can grant a franchise or right to lay gas pipes or wires for electric light except on petition of land owners representing more than half the frontage on the streets, alleys, etc., to be used. (Laws of 1897, p. 100. See also Kev. Stats., 1895 and 1898.) In Pennsylvania, local consent is necessary for street rail- ways, gas, electric light, heat and power and for telegraph poles and wires. TO POLITICIANS AND MONOPOLISTS MUST CEASE. 461 In Massachusetts, the aldermen of a city and selectmen of a town may, after a hearing, grant or refuse locations for street railways. Local consent is also necessary for gas and electric light. In the case of telegraph and telephone companies with state franchises the local authorities may designate (hut can- not refuse) locations for posts, etc., and may make reasonable regulations subject to appeal to state courts. Aside from this, the selectmen of a town may grant telegraph and telephone franchises to individuals or companies and control them en- tirely. (Pub. Stat. c. 27, §§45, 48.) §45 reads as follows: "The selectmen, upon such terms and conditions as they may prescribe, and subject to the provisions of chapter 109, as far as applicable, may authorize any person to construct a line of electric telegraph for private use upon and along the public ways of the town. Upon the erection of such line, the posts and structures thereof within such ways shall become the property of the town, and the selectmen may regulate and con- trol the same, and may at any time require alterations to be made by the parties using the same in the location or erection thereof, and may order the removal thereof, having first given such parties notice and an opportunity to be heard. The town may at any time attach wires for its own use to such posts and structures and the selectmen may permit other persons to attach wires for their private use thereto or to posts and structures established by the town, and may prescribe such terms and conditions therefor as they deem reasonable." A similar law exists in Vermont. Note the clause making the telegraph posts and structures municipal property immediately upon erection. Why should not the same principle be applied to every local service that builds its works in the streets? Allow a reasonable franchise term, but put the title to the property in the municipality either at the start or at the expiration of the franchise period, without further compensation than that involved in the fran- chise grant for the said term. A great deal more space could be devoted to these matters, but we will content ourselves with the following summary in tabular form, which shows at a glance the principal provisions relating to local consent and powers of grant. 462 MUNICIPAL LIBERTY. TABLE Iir. St. Ry. j Gas Elec. 1. Teleg. Teleph. ! Water Rd$. Heat Power Me i 1. c. a. , 1. c. i . j 1. c. a. I.e. K« I.e. 1. c. C. 1. O. 0. i g. b. I.e. 1. c. 1. c. | ..c. l.c. l.c l.c. 1. c. fl.e. X g. l.c. l.c. 1. e. o. a, l.c. | I.e. N. H Vt 1. c. a. { A. i 8 g d. 1. e. a. ; A A ?■ ( 1. e. o. a. l.c. : 1. e. i g- : { R. I g- l.c. ,.0. g. g- >.c g :c. g- g. g- 1. c. o. a. ; i.c. ' i.e. ! ; g. exc. I 1st cl. N.Y i N.J Pa 1. e. X 1 c. Del l.c. l.c. l g c. L. 1. c. &o. l.c. g- g- l.c. g. A. l.c. Md i. c. r. 1 g. b. I.e. ,.c g -C. LKds 1. c. & 0. I.e. f I.e. 1 g. I.e. g. o. I.e. A g- g- W. Va Ohio l.c. l S c. ,0. Ind | 111 J g. 0. \ fl.e. X g. 1. c. g. b. R. 1. c. g- g.b. g.R. 1. c. g- l.c. I.e. , 6 c. l.c. 1. c. C {, g- g- fl.e. t g. A. 1. <\ C. g- I. c. C, 6 o. (ft l.c. g- g.R. 1. c. g- g.b. g.R. i.e. g. . 8 c. 1. c. '"'i.e.' 1. c. C. l.c. g.R. l.c. g. g.b. g.R, 1. c. g. g- 1. c. C. g - g- l.c. g- l g c. 1. c.' C. g- l g e. g.R. ™ f ........... g- It g- Wise J Minn | Mo -1 ti g- 1. c. C. g.b. 0. I.e. g.R. I. c. g. 1st el. o. 40,000 1. c. C. 1. c. C. I.e. V, Tc."c.' 1. c. C. g- j Iowa A i g. R. g.R. g.R> Kans ■< Neb g. lstcl. g. 1st cl. g- 8. Dak N. Dak | Va 1. e. C. l.c. l.c. 1. c. C. 1. c. C. 1 1. c. C. N. Car 8. Car Ga Fla g. g g- ....... „... g- l.c. g- Ala 1. c. U Miss La l.c. ft. g. 1. o. C S- Texas Ark Tenn j K ' { Mont j g. 1. c. C. l g c. 7K\ ■ e c. ; g. 1. c. C. A g- g- 1. c. C 1. c. C. l.c. g- Idaho Colo l.c. g.R. l.c. ; ............ l.c. l.c. g. Utah | Nev , S c. g- g. l g c. g.b. g- g. g- g. 1st cl. g- ,8 j- ! g- b. j Wyo { Ore Wash 1. c. C. g- l g e 1. c. C. g- g. 1 c. 1. c. C. ' i. c. c. g- g.(3dd.) i g.(3d'cl.) - {| l.c. g.b. g.b. j g.U. , g.b. See explanation on next page. Dots are run across blank spaces to carry the eye where there is any further entry on the same line. LOCAL GOVERNMENT BY THE LOCAL PEOPLE. 463 In this table 1. c. means local consent, 1. c. o. or o. alone means consent of owners of property along the line of railway, etc d, means right to designate locations, a, means appeal to court or commissioners, g, means local power to grant, g. b. means sale or grant to highest bidder. R, means referendum necessary, L, means elevated road, C, means by constitutional provision. A power of grant, if exclusive, is of course equivalent to requir- ing local consent, altho the laws of the state may contain no specific provision as to local consent. Municipalities that have been given control of their streets may grant street railway and other rights in them. (Thompson's Law of Electricity, §26.) The legislative tendency to scatter provisions relating to a given topic thruout big volumes of statutes, putting some in solitary con- finement in secluded spots, and tucking others cosily under the wings of statutes apparently belonging to an entirely different species, together with the very imperfect indexing that character- izes many of our statute books, has made it very difficult for the writer and his assistants to be absolutely sure that all the provis- ions relating to local consent for street franchises, etc., have been captured. If any reader notes an omission and will send to the author or publisher a reference to the omitted statute, the favor will be deeply appreciated. A municipal right arising from statute may, of course, at any time, be altered or repealed. Theoretically, therefore, no number of such rights can constitute any real municipal sov- ereignty or assured power of self government, such as state and nation enjoy in respect to their particular affairs, and such as cities and towns should enjoy in respect to their local busi- ness concerns. The practical fact accords with the theory to a considerable extent. New laws and old ones not much used are easily changed if corporate interests require it. It is not necessary to repeal. A little insignificant looking amendment that may pass without attracting any general attention can take the life all out of a law. When, however, a law confer- ring important privileges has grown into the life of the people and has come to be regarded as part of their natural rights, it is apt to be so jealously guarded that it takes on something of the stability of a constitutional provision, tho it cannot attain quite the same vigor and certainty until we have the ref - 464 THE CITY FOR THE PEOPLE. erendum, for the legislature can act counter to the people's interest and wish if the motive be sufficient, no matter how powerful the protest may be. The statutes contain many laws affecting municipal rights which fall outside the scope of Table II. Some of these are very interesting. For example, the Montana laws of 1897 provide that cities and towns may establish free employment offices, regulate and prohibit the wearing of hats and bonnets at theatres or public places of amusement, provide for planting trees, etc. In Maine, any town may raise money to propagate fish, and I am told that a number of towns have "from ancient times" municipalized the catching of a variety of shad. Cities may buy and keep hay scales. This privilege is ac- corded municipalities by general law in a number of states. Also the right to establish standard weights and measures. By the Vermont statutes of 1896, any city or incorporated town can vote money for free musical entertainments, and in "New Hampshire any city or town may provide coasting and skating places. Pretty soon we may have general laws em- powering cities and towns to purchase bicycle pumps and fasten one to every mail-box post, or fix them at other con- venient intervals, and provide free lunches for bicycle parties on condition that the women do not wear skirts less than 2-J feet in length ; but what we really want is municipal freedom in the full sense, by constitutional enactment granting the in- itiative and referendum, and not statutes granting privileges in comparatively trivial affairs. THE AWKWARD SQUAD AND THE HONOR LIST. Considering the whole range of legislative and constitu- tional provisions in favor of municipal liberty, DELAWARE AND MARYLAND Take their places at the tail of the class. They seem strongly inclined to shirk general legislation favorable to municipal rights. They are almost total abstainers from the performance of their duties in this regard. HOME EULE FOE OUE CITIES. 465 Virginia, North Carolina, Alabama, Arkansas and Nevada are only a little further advanced, and THE NEW ENGLAND GROUP as a whole has not very much to be proud of. Neither has_ New York, and Louisiana, would surely have a place at the end of the procession were it not for the law of 1896 in relation to home made charters. Turning to the head of the column, let us note the states in the front ranks of progress toward municipal liberty. Con- sidering the volume and value and the universality of the rights accorded to municipalities, and taking into account the attitude of the courts on common law principles, the use of constitutional safeguards, and the initiative and referendum, we may perhaps be justified in placing on the roll of honor the names of the following states: MINNESOTA, CALIFORNIA, WASHINGTON, MISSOURI, SOUTH CAROLINA, KENTUCKY, WISCONSIN, MICHIGAN, INDIANA, IOWA, KANSAS, NEBRASKA, COLORADO AND UTAH. But even in the best states the law is very imperfect. Frag- mentary legislation, unconscionable repetition and miserable indexing characterize the bulk of our statutes, and make the study of statute law a soul-exasperating business. Massive enactments loaded with ponderous verbosity and repeated almost or quite verbatim at intervals thru the statutes under each division of municipalities and perhaps various other heads, together with shreds of legislation touching the same topics, scattered thru thousands of pages, tied up with other bundles with which they may be related in some way, nestling in some proviso, or paragraph, or section of a big chapter whose head- ing may not lead you to examine it for the subject you have in hand and whose molecular constitution is not correctly and completely registered in the index — these things and ambigu- ous wordings, conflicting decisions and multitudinous diver- gences in the laws and customs and charters of the various states make it almost impossible to ascertain what the law is. And then the terrible waste of time and space and printer's ink. Rhode Island is not very large, but her legislative acts, 30 466 THE BONDAGE OF CITIES resolutions and reports come out each year in a volume as big as a young dictionary. The Massachusetts Public Statutes, compiled in 1882 make a big-paged book of 1,400 pages; the supplement to these Public Statutes for 1882 to 1888 is a volume of 1,500 pages; the supplement for 1889 to 1895 is an enormous volume of 1,700 pages; — three big volumes with 4,600 oceanic pages. In addition to all this the legisla- ture is manufacturing a fat blue book every year — and every one is conclusively presumed to know the law. The contrast between the efficiency of our watch factories, water works, fire departments, post office and navy, and the ineffici- ency of our legislative factories is awful. We have already spoken (p. 402) of New Jersey's delicate creations in the statute line, occupying over 4,000 pages and five million words. The city acts alone fill 360 big pages with the customany repeti- tions as to elections, corporate powers, duties of officers, etc. Besides all this, there are 40 big pages on towns, and then we have 30 blanket pages on oysters and clams,- which are not more indigestible than these statutes, altho the legislature does not put that conclusion in the book. One is tempted to say: "Throw the statutes away and begin all over and make the law simple and concise so that any one can find it and understand it when he finds it." For all local services and franchises involving the use of streets, let us have one little paragraph according full powers of construction, purchase, maintenance and operation of works and systems, to supply the municipality (city, town or village) and its inhabi- tants with water, gas, electric or other light, heat, power, street railways or other transit facilities, telegraph, telephone, tele- lectroscope or any other local service requiring a special use of the streets or rights of way, and conferring exclusive powers of grant and control upon municipalities in respect to such franchises and services. A few such clauses carefully worded would cover the whole field of distinctively municipal busi- ness, including markets, ferries, wharves, harbors, parks, baths, lodging houses, etc. Add a clause conferring the right to do anything not forbidden by valid law of state or nation. Put all these clauses in one small section of the constitution, TO POLITICIANS AND MONOPOLISTS MUST CEASE. 467 with another section providing for the initiative and refer- endum and recall, another for the merit system of civil service, and another for proportional representation — including the women — then give municipalities, subject to these provisions, the right to make their own charters (on legislative approval as to portions that go beyond the said provisions), and yoiL have municipal liberty and a simplified law, so far as it is pos- sible to get them in a state which by necessity places the final appeal upon the law's interpretation in a supreme court, a - condition which might at times weaken, but on the whole would be far more apt to strengthen the proposed constitu- tional guaranties. If, after our states have done some think- ing on these lines, they will join in a great convention that may lead to the adoption of simple uniform provisions on these and other fundamental questions, the future will be filled with the hope that legislation may some day become a science. CONCLUSIONS. In going over the laws and constitutions of these forty-five states from early times to the present year, a few conclusions of special breadth and moment have forced themselves upon my attention : First: There is a powerful trend toward careful definition, regulation and limitation of legislative power. Second: There has been in recent years a tremendous and ever accelerating movement toward legislation favorable to public ownership and operation of local utilities, particularly those that involve any special or privileged use of the streets. Third: There has been an equally emphatic movement toward a fuller recognition of the principle of local consent, and the right of the people to be consulted about important measures and vote directly upon them, and the correlative right to initiate legislation if they so desire. Fourth: The local right to grant local franchises, elect local officers and manage local property, and the right of munici- palities to frame their own charters have also received recogni- tion. Such are some of the principal streams that make up the 468 THE CITY FOR THE PEOPLE. current of enactment that is moving toward municipal liberty and independence in respect to local affairs. And yet it must be admitted that no real home rule has been established be- yond the reach of legislative interference unless the Califor- nia amendment of 1896 has that effect. 1 Legislatures still have power to alter or abolish charters, and may practically annul even freehold charters, for, except in California, they are clearly and expressly subject, by constitutional proviso, to the general laws of the state, even in respect to purely mu- nicipal affairs. We have as yet no setting apart of a definite local field from which state legislation shall be excluded, as national legislation is excluded from state interests. Some of our states have made a splendid beginning, but the end is not yet. 1 Possibly Missouri should also be excepted, for the rule of 127 Mo. 642 may stand by its inherent justice or the weight of precedent, in spite of the fact that the reasoning on which the court based the decision, is open to serious .question. (See p. 424). CHE first form of government in this country was colonial. After the revolutionary war, state governments naturally succeeded the colonial governments. Then only about 3 persons in 100 lived in cities of over 8000 inhabitants, while now about 35 persons in 100 live in cities of over 8000. Then there were no cities of great size, and they were not compact as our cities, of necessity, now are. Lighting was simple and primitive; each household had its one or several "tallow dips'" and there was no public lighting to speak of. Lanterns, rather than street lights, were de- pended upon to guide footsteps in dark streets. This was the entire situ- ation concerning lighting, both domestic and public. As gas was not known there could be no municipal gas question. As to water, there was a well in nearly every back yard ; and if not, the corner pump was near by ; and the wells in so sparse a population were not unhygienic. This was the entire water question of that time. As the people in the cities of that time could easily walk from home to business, and even walk home for mid-day dinner and back to business again in the afternoon, there was no local transporta- tion question as we have it now. Hence, with a population so largely rural, and with our present municipal necessities unfelt and unknown, a state government fulfilled every need. But now with our population so largely urban, and our cities grown to such gigantic size, new necessities have rapidly come into being. Now we are toucht a dozen or a score of times by our city government to once by our state government ; for example, the con- dition of the water we drink, the condition of the streets, the cost and quality of gas, which is now a necessity, the public order and our private safety, etc.. etc., etc., depend upon our city government. This then has become of direct and constant importance to us. A century ago state government was much more important than municipal government, now the importance of municipal government is by far the greatest. As those who planned our state governments in the 18th century could not foresee the needs that would arise in the 19th century, they could not be expected to provide for them. We who now see and feel these new needs, should be zealous in our endeavors until our cities are made completely free from the interference of state legis- latures in local matters (freedom not needed then but sorely needed now), and until the people of our cities are also made completely free from the domination of councils and politicians, by the introduction of the initiative and referendum. '^7 THE TRUE CITY IS THE CITY WHERE JUSTICE AND MANHOOD ARE MORE REGARDED THAN MONEY— THE CITY WHERE POWER AND PROSPERITY ARE FOR THE WHOLE PEOPLE AND NOT FOR THE PRIVATE POSSESSION OF A FEW POLITICANS AND MONOPOLISTS. Appendix I. LEGISLATIVE FORMS. Forms of Constitutional and Statute Provisions Relating to Municipal Liberty and Freehold Charters. Part I. Suggested Forms. Form A offers a method of securing constitutional amendments, which gives the people a more effective control of the state constitu- tion, and opens a way to municipal liberty (or other desired reform) that is direct and easily available, and is of inestimable value when the old road through the Legislature is obstructed or blocked. iM)rm B offers a similar method of amending the charter of a city, or municipal constitution, within stated limits. Form n work that bears little if any relation to politics. Such officers should be experts in their departments and have a tenure far above the whim of any official. s These provisions, under which either mayor or council may push the other out of office in 30 days (so taking the whole government and its policy to the people) embody the principle that has been found of such utility in England and Australia in giving the people fuller consideration and more vital control over their government, both legislative and administrative. SUGGESTIONS FOR A MODEL CHARTER. XVII voters of the city to a number equal to a majority of the total vote cast for mayor at the last preceding mayoralty election shall be equivalent to an order for a new election of mayor 30 to 40 days after the filing of such petition. He may also be removed by the Civil Service Court. ■ § 3. The council 6 shall consist of members elected' by the people at large, one member to each voters. It may be dissolved by order of the mayor or by popular recall in- the manner set forth in § 2. It may elect its own officers, divide the city into wards, establish such departments and offices as it may deem best; choose committees to watch the operations of each depart- ment and consult with the department head appointed by the mayor, levy and collect taxes, vote appropriations, grant franchises and exercise all the legislative powers of the city, subject to the' veto of the mayor and the control of the people through the referendum. Article 4. Ordinances. Mayor's Veto ; Direct Legislation, Franchises, Etc. § 1. The term "ordinance" shall include every contract, grant, resolution, act or measure, passed by council or sub- mitted to the legislative discretion of the people, or their agents in council. Ordinances shall be classified as general ordinances corresponding to general laws, and special ordi- nances consisting of routine orders (selection of council offi- cers, ordinary levies and appropriations within established standards, votes upon the mayor's appointments and upon dismissals, etc.), resolutions concerning the decease of dis- tinguished men, acts relating to one individual or company, personal orders, etc. § 2. Every ordinance passed by council shall be sent to the mayor. Within 10 days after receiving it (or at the next meeting of council after the expiration of the said 10 days) the mayor shall return it, with his signature or with his veto and the reasons for disapproval. If not returned within said time the ordinance is regarded as signed. If Mayors Veto. vetoed the council may pass it over the veto by a 2/3 vote. After an ordinance is passed and signed by the mayor, or passed over his veto, it shall be published at least once a week for 4 weeks in one or more newspapers designated for the purpose by the mayor who e With the check of the referendum a single chamber is sufficient and tly simplifies the government. XVIII APPENDIX II. may make a general order on the subject, and an additional special order in any particular case: if he deems best. § 3. Ordinances other than established routine, or urgency measures necessary for the immediate preservation of the public health, peace or safety, shall not go into effect for 30 days after passage and official publication, Referendum. ^ if &w™% that time legal voters of the city sign a petition demanding the refer- endum on any such ordinance, it shall be submitted to the people for final decision at the polls. § 4. Ordinances may be proposed to council or to the voters at the polls by the mayor, controller, superintendent of schools, director of public works, or civil service commis- sioner. One third' of the council may order any ordinance or proposed ordinance to be submitted to the The initiative. people, and on petition of of the legal voters of the city proposing a specified ordi- nance or amendment, it shall go to the polls together with the action of council upon it, if any. § 5. Council shall within a reasonable time adopt such ordinances as may be needed to determine the details of municipal action under this charter and carry its policy into effect, and all such ordinances relating to direct legislation andi the methods and details of its use shall be submitted to the people and approved at the polls before going into effect. § 4. No franchise shall be granted for a longer term than 20 years, and no franchise grant shall be Franchises. valid till approved by the people at the polls. Franchise grants may stipulate that at the end of the temi the property shall revert to the city free of debt, or at the arbitration value of the physical plant, or contain any other reasonable provision on this subject, and whatever other terms the city may deem best. No public plant shall be sold, leased or encumbered except upon a referendum vote to that effect. Article 5. Nominations. §1. Nominations of elective officers shall be made by peti- tion signed by qualified voters of the city and filed in the clerk's office. Article 6. Elections. Separation of State and Municipal Elections, Officers and Boards Elected, Proportional Representation, Majority Choice, Ballot Machines, Corrupt Practices. § 1. Municipal elections separated from state and na- tional elections bv at least 1 month, shall be held at suoh SUGGESTIONS FOR A MODEL CHARTER. X I X times and places and. in such manner as may be designated by ordinance. § 2. The officers elected for the city shall be a Mayor \ and Council, as above described, a Controller, School Board, Director of Public Works, and Civil Service Court, and Commissioner (see below), and such other officers as may be listed for election by statute or ordinance. § 3. A system of Proportional Representation 7 may be — adopted by ordinance to be used in the election of the Coun- cil, School Board, Civil Service Court and other official groups that may be required. Such system may be applied to all the members of council or other group or to part only, the rest being elected on the district plan. § 4. Majority Choice or Preferential Voting 8 may be adopted by ordinance to replace the plurality rule in the election of single officers. § 5. The Automatic Ballot may be established by ordi- nance providing for the purchase of suitable voting machines, approved by the state, or in the absence of designation by statute, the city may buy such machines as it deems satis- factory after thorough testing on behalf of the city. § 6. The Registration of Voters shall be conducted in the manner prescribed by law and ordinance. § 7. A candidate-elect by or on behalf of whom bribery or other corrupt practice is used in the election cannot take his seat. 9 This provision miay be enforced in the regular courts or in the Civil Service Court. Article 7. The Controller. § 1. The Controller shall be elected by the people and shall hold for 4 years unless sooner removed by the Civil Service Court or popular recall. § 2. He shall audit all bills and demands against the citv, examine the accounts of every department and report any default or delinquency he discovers in the accounts or con- duct of any officer. Tie shall have power to settle claims against the city, and may examine under oath persons Who present claims, and other witnesses. No payment of city funds shall be made except upon draft countersigned by the Controller after he has audited the claim and found it justly due. 7 See Chap. V, "City for the People," Equity Series, 1520 Chestnut St.. Philadelphia. 8 See reasons and methods Chap. VI, "City for the People." •This is the principle that has proved of such great value in England. See Chap. VIII, "City for the People." xx appendix ii. Article 8. The Schools. § 1. The supervision and management of the schools shall be vested in a superintendent appointed by the mayor (with assent of council), and a board of members elected by the people to hold for 6 years, 1/3 being elected every 2 years. The board may by 2/3 vote dismiss the superin- tendent. § 2. The board shall have charge of all school property. It shall lay down courses of study and make regulations sub- ject to the veto of the superintendent in like manner as between mayor and 1 council. § 3. Subject to such regulations and the Civil Service rules the superintendent shall have charge of the hiring of teachers and the supervision and direction of instruction in the schools. § 4. Any teacher may be dismissed by the board subject to appeal to the Civil Service Court, Article 9. Public Works. Director of Public "Works, Public Ownership, Publicity of Corporation Accounts, Etc. § 1. A Director of Public Works shall be elected by the people to hold for 4 years unless sooner removed by the Civil Service Court or popular recall. § 2. It shall be the policy of the city to own and operate for the benefit of the whole people all local public utilities. To this end the Director of Public Works shall make or cause to be made careful estimates of the value and cost of con- struction and operation of such plants as exist or are desirable for the carrying on 1 of such services. For this purpose the Director and his agents shall have full access to the books and documents of any corporation, firm or person engaged in such service in the city, and may summon, witnesses and examine them under oath subject to the penalties of perjury if they testify falsely. The information so obtained shall be reduced to clear and simple form, and both in full and in its reducted form, shall be kept permanently open: to public inspection in the Director's office at all times during business hours. § 3. The Director shall from time to time submit to the council and to the voters at the polls propositions for the purchase or construction' of public service plants. § 4. Debts incurred by the city for such plants shall not be charged against the debt limit except so far as they ex- SUGGESTIONS FOR A MODEL CHARTER. XXI oeed the fair market value of the property they represent — the structure and the franchise are both assets in the hands of the city balancing an equivalent value in securities. § 5. It shall be the policy of the city to extinguish the capital obligations resting upon public service plants in order that they may become completely the property of the people free' of debt and render sendee to the community at the lowest cost. To this end measures shall be taken, through the adjustment of rates or otherwise, to gradually extinguish, said obligations so that the plant may be free in 20 to 50 years from this time, or, in case of future undertakings^ from the time of construction or acquirement by the city, or in a less time than 20 years if so voted' by the people on a refer- endum. § 6. The administrative headte of departments of public works such as water, gas, electric light, transit, streets, parks, etc., shall be appointed by the mayor with assent of coun- cil, but may be removed by the Director of Public Works at will, as well as by popular recall or by the Civil Service Court or the mayor upon hearing. Article 10. TkE Civil Service. Tine merit system of appointment and promotion with tenure during good behavior and efficient service shall be the settled policy of the city in respect to the; employees of every department,. § 2. A Civil Service Commission shall be elected by the people for 4 years, and three judges of a Civil Service Court y to hold 6 years, one: to be elected every 2 years. § 3. These four persons shall draw up and submit to the people a system of rules to carry out as far as practicable the principle set forth, in § 1, making it a part of the plan that, (excepting private secretaries and immediate personal assist- ants of heads of departments, and similar officials) any officer or employee removed or degraded shall have an appeal to the Civil Service Court for reinstatement unless good cause be shown for his dismissal, provided of course that this is not understood to overrule express provisions in this charter in respect to removal in particular cases. § 4. It shall be the Commissioners'* duty to watch the conduct of every department of the city and see that the Civil Service Rules are enforced^ in good faith according to their spirit and purpose. He shall have full access to the records and offices of all departments and may examine under oath any officer or employee from the mayor to a laborer on the XXII APPENDIX II. streets. In case of violation of the law lie may notify the offender to make good the breach and conform' to the law in future. If this proves ineffective or he thinks best to proceed in court at once, he shall bring the case before the Civil Service Court, which may, on the first offence, fine, im- prison or dismiss the offender or impose any service°cmlrL two or a ^ t!nr0e penalties, but on the second offense shall dismiss the guilty official. The action of the court shall not be confined to enforcing the merit system in respect to the appointment, promotion and retention of employees. It may dismiss any officer or em- ployee of the city for misconduct or incompetence, and pro- ceedings for this purpose may be instituted by tine Mayor, City Attorney, Controller, Superintendent of Schools, Di- rector of Public Works, or other head of department, and upon affidavit that a. department head has been requested to bring such action on reasonable cause and has refused, any ten citizens may institute such proceedings in said 1 court. Any employee or group of employees or any officer may appeal to the court to prevent or punish a breach of the Civil Service Rules, or to decide any question relating to hours, wages or conditions of service, and its decision ^Titration. afteT fllU bearing of all sides, shall have the force of law subject only to the referendum if a petition for it is filed in the court within 30 days after such decision is published. § 5. The Commissioner shall secure and keep on file in the Tribunal open at all times to public inspection, a correct list of all officers and employees of the citv, Publicity. with a statement of the title and remuneration of each, the nature of his duties, date of elec- tion, appointment or employment with the name of the per- son appointing or employing him, and date of termination of service with the reasons therefor. Article 11. Other Officers. § 1. A chief of police, and a city attorney shall be ap- pointed by the mayor (with assent of council) for 2 years. § 2. Judges of the city courts established by ordinance shall be appointed by the mayor (with assent of council) to. hold for life unless dismissed' by the Civil Sendee Tribunal for inability, misconduct or incompetence, or removed by the popular recall. § 3. A superintendent of schools, chief of the water de- partment, electric light, street railway or other municipal SUGGESTIONS FOR A MODEL CHARTER. XXIII service the city may own and operate, street commissioner, fire marshal, engineer, health officer, city J '" ( Term PPUl(/ <&&&, treasurer, assessor, collector, coroner, or other officer required by law or ordinance, shall be appointed by the mayor (with assent of council) to hold for 3 years. 10 Article 12. Salaries and Wages. § 1. Salaries of officers shall be fixed by ordinance but shall not be changed' upon any officer during his term. § 2. Subject to Article 10, § 4, the wages of employees shall also be determined by ordinance and may be changed upon 3 months' notice. Article 13. Removals. By the Mayor, Director of Public Works, Department Heads, Civil Service Court and Popular Recall. § 1. For removals of and by the Mayor see Article 3, § 2. § 2. For removals of and by the Director of Public Works see Article 9, § 1 and § 6. § 3. For removals by the Civil Service Court see Article 10, § 4. § 4. The head of a department may for good cause dis- miss any employee under him subject to appeal to the Civil Service Court and its discretion as to costs under the Civil Service Rules. § 5. A petition signed by a number of legal voters of the city equal to a majority of total vote for any city office at the last preceding municipal election may require a new elec- tion for such office. jpopuiar Eecau. In respect to any non-elective officer or employee a petition for dismissal signed by a number of voters of the city equal to a majority of the total vote cast at the last preceding municipal election, shall be mandatory upon the head of the department involved and upon the Civil Service Court, and shall be good and necessary cause for an order of removal. 10 The object of overlapping the term of the mayor is to give a year for any partisan feeling awakened in the campaign to die away, and for the mayor to become thoroly acquainted with the character and capacity of the various department heads. Under such circumstances the mayor is much less likely to be elected on a spoils basis and is also less likely to fill the offices with his political or personal friends than is the case where the offices go vacant at the time he comes to the chair. Thus we gain the advantages of the appointment system in securing scientific experts instead of politicians for the heads of departments and at the same time reduce to the lowest terms the dangers of the appointing power. The ideal we think would be that such officers as superintendent of XXIV APPENDIX II. Article 14. Impeachment. § 1. Any judge or head: of department, elective or ap- pointive, may be impeached for gross misconduct or mal-ad- ministration. Such impeachment may be brought by the City Attorney or any 100 legal electors of the city, and shall be tried before the council, whose adverse judgment shall not extend beyond removal from office and disqualifi- cation for any future office, honor, or employment at the hands of the city. Article 15. Contracts. Direct Employment, Co-operative Contracts, Etc. § 1. It shall be the policy of the city so far as practicable to substitute direct employment, and contracts with co-opera- tive groups of workers, in place of contracts with middlemen and ordinary non-co-operative contractors. 11 Article 16. Amendments. § 1. Amendments to this charter may be proposed by the mayor, council, or any department head, or by petition signed by legal voters of the city. § 2. Such proposal shall be submitted to the people at che polls and if adopted by a majority of those voting upon it shall become a part of the organic law of the city subject to the limitations set forth in Article 2. schools, head of a public utility, street commissioner, fire marshal and similar officials should hold during good behavior and efficient service. Their positions demand expert knowledge requiring many years of special training and experi- ence, and their departments are in no sense political but are business enter- prises in which a steady policy and entire freedom from anxiety about elec- tions or tenure of office are of the utmost importance. It is probable however that a 3 year term (overlapping the mayor and council) and removal only for cause are about the best attainable provisions in the present state of public opinion. 11 The principle of co-operative labor on public works has been applied with the most important results in New Zealand, the men making average pay nearly double the average wages received under the old system, at the same time that the buildings, railroads, etc., cost the state less than under the contract system. See Henry D. Lloyd's "Newest England." INDEX OF SUBJECTS. HOME-RULE FOR CITIES, (Chap. Ill, 387-468) -^ 1. importance of subject, 7-11, 428-9 cities like women, 387 legislative paternalism, 387 city can't connect two of its own buildings with a wire except by permis- sion of legislature, 387 no independent initiative, 387, 406 (Eng.) must get permissn to move, 387 can't own or run local water, gas or telephone service without consulting the other cities and towns of the State, 388 legislature can plan pub. bldgs for a city and make it pay for them, 388-9 compel city to pay claim rejected in court, 389 take water works, etc., out of city's hands (?), 390 city's franchise not a contract, 390 city's charter not a contract, 390 cities in bondage, 390-1 reasons for subjectn of cities, 391-2 dual nature of municipality— state agency and local business concern key to the situatn, 392, 412 2. limitations on legislative omnipotence, 392-7 inherent right of local self-govt, 393 Michigan doctrine (Mich, and Ind. cases), 393-6 contra, 396 n. 3. rights of cities— general situation, 397 summary 4. consequences of municipal dependence, 398-405 chaos of laws, 398, 539 (318-320, 402, 465-6) special legislatn, 398-402. (422 and 538) lack of elasticity, 402 local patriotism crippled, 402-3 log-rolling, corruptn and bossism favored, 403-4 progress obstructed, 404-5 5. remedy, municipal' independence in local business, 405 the manhood principle, 405-6 assigned sphere of local sovereignty, 407-9 const, amendmts, 409, 415 home-rule charter and the referendum, 410-1, 415, 428 direct legislatn, merit system, and pub. ownshp nec'y, else freedom from legislative bossing may mean subjectn to local politicians and monopolists, 411, 428 separatn of state and municipal affairs, 411-3, 536 6. steps toward home-rule, 413-5, 429-430 7. freehold charter amendmts, 415-425, 431, 435-8. suggested form,i-v Missouri, 415-6, 435, x-xi, full text Louisiana, 416, 435 Minnesota, 416-7, 435, vnr-ix, full text Washington, 417, 435, vn vin, full text California, 418, 435, ix-x, full text St.. Louis, charter, 418-9, 422 Los Angeles' charter, 4i9 San Francisco's charter, 419-421, 438 initiative and referendum, 419 pub. ownship, 420 merit system of civil service, 420-1 the charters still subject to the legislatures, 424-5 8. special legislatn forbidden, 422-3, 431, 431-4 9. points for future charter laws, 426. (see appendices) 10. summary of discussn so far, 427-430 11. Dr. Shaw's views, 428-9 Gov. Russell's views, 399, 400 Natl. Municipal League, model charter, 228, 229 12. constitutional provisns affecting municipal liberty, 431 table, 432-8, 455, (See appendix i) safeguards against special legislatn, 431 table, 432-4 (see 422-3, 398-402) local consent required, 431 table, 434 franchise grants, municipal power, 431 table, 434, 448-9 public ownership, municipal power, 434 charter making, municipal power, 431 table, 435-8 (415-425 see above) XXV XXVI INDEX OF SUBJECTS. HOME-RULE FOR CITIES— continued 13. statute provisns affecting municipal liberty, 436-7 table debt limitatns, 437, 438 proposal not to count bonds issued for revenue producing utilities, appendix xx-xxi local choice of local officers, 437, 438-9 municipal baths, libraries, etc., 439 street franchises, 439 municipal ownership, 436 table street railways, 436 table, 440, 447, 448 telegraphs and telephones, 436 table, 440-2, 447-9 gas and electric light laws, 436 table, 442-9 city may build plant tho it has previously granted franchise to a private co., 443, 445 hay scales, bicycle pumps, etc., 464 sale of franchises at auction, 449-452 charter of Greater New York, 452 local consent and powers of grant, 436 table, 453-461, 462 table street railways, 454, 458, 448-9, 459-461, 462 table electric light, 455, 443-5 telegraph and telephone, 448-9, 459, 460, 461, 462 table gas, 455, 443-5 gas, water, elect, light, st. rys., telephone, 454-5 sweep. property owners assent, 457, 459-460, 462 table appeal to court, 457, 461 14. sweeping provisns best, 456, 454-5, 458 Minn., 447, 458. la., 444 Wash., 448. Cal., 447 Ind., 448, S. Car., 448 Ky., 448-9. Wise, 449 Kans., 459. Mo., 450 15. referendum provided for, 456 summary Minn., 442, 456, 458 sweep Wash., 448, 456 sweep la., 444, 456 sweep Wise, 449, 456 (Initiative also) Mich., 444, 456 (Initiative also) Nebraska, 457 (Initiative also) So. Dakota, 457 (Initiative also) 16. statute provisns easily changed, not very reliable, 463 but important laws soon gather about them a sentimt that protects them, 463 17. the honor list and the awkward squad,— progressive states and backward states, 464 18. even the best statute books very imperfect, 465 legislatures afflicted with intellectual indigestion,— ponderous ver- bosity, exasperating repetitn, chaos of enactmts, largely useless or worse, R. I., N. J., Mass., etc., 465-6. (398) 19. a few brief sweeping well considered measures worth more than masses of ill-digested statutes, 466 20. conclusions, 467-8 LEGISLATIVE FORMS. (Appendix i) Suggestions for constitutional amendmts and statutory enactments in aid of municipal liberty, appendix, p. i Existing freehold charter amendments, appendix, p. VII MODEL CITY CHARTER, suggestions for. (Appendix n) Charter making, anpendix, p. xn Charter form, appendix, p. xiv THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW AN INITIAL FINE OF 25 CENTS WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK ON THE DATE DUE. THE PENALTY WILL INCREASE TO 50 CENTS ON THE FOURTH DAY AND TO $1.00 ON THE SEVENTH DAY OVERDUE. REC'p LP J W 21 "66 12 AM ? W*>*. ?n e ^56WJ — — — , .. .97 ijmvmtiMtf NOV 23 19» MAYn9 m CIRCULATION DEPT. i&m&- ■vy'O LD T E B 2 BS9 J . : o^:: oi stAO^ ia tefMJfl^ LD 21-100m-7,'39(402s) .V.i,£r..?,^ KELEY LIBRARIES UNIVERSITY OF CALIFORNIA LIBRARY CITIES M J3T GET PERMISSION TO MOVE. THE LEGISLATURE GIVES THEM SUCH POWERS AS IT PLEASES, ABRIDGES AT WILL, OR ANNULS THEIR PRIVILEGES, MAY EVEN DIVIDE THEM OR CONSOLIDATE TWO OR MORE OF THEM INTO ONE WITHOUT THEIR ASSENT, ATTACH A CONDITION TO THEIR CONTINUED EXISTENCE, OR ABOLISH THEM COMPLETELY. IN THE LANGUAGE OF THE LAW, A CITY IS "A CREATURE OF THE LEGISLATURE." THIS MUNICIPAL SUBJECTION CONSTITUTES ONE OF THE PRINCIPAL REASONSlFOR THE MISMANAGEMENT OF OUR CITIES, THE CORRUPTION OF OUR LEGISLATURES, AND THE LACK OE LOCAL PATRIOTISM AMONG OUR PEOPLE. THE REMEDY IS A CONSTITUTIONAL AMENDMENT GIVING CITIES AND TOWNS THE RIGHT TO MAKE THEIR OWN CHARTERS WITHIN BROAD LIMITATIONS, AND SUBJECT TO LEGISLAT ON RESPECTING STATE INTERESTS, BUT FREE OF LEGISLATIVE INTERFERENCE IN LC AL BUSIN"SS AFFAIRS, WHICH SHOULD BE GIVEN OVER TO MUNICIPAL SOVEREIGNTY ON THE SAME FRINC1PLE THAT HAS ESTABLISHED NATIONAL SOVEREIGNTY IN NATIONAL AFFAIRS, STATE SOVEREIGNTY IN STATE AFFAIRS, AND INDIVIDUAL SOVEREIGNTY IN INDIVIDUAL AFFAIRS.