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REAL ESTATE
AND
NEW YORK, APRIL 15, 1916
MUNICIPAL HOME RULE, WHY IT IS NEEDED,
AND HOW IT MAY BE OBTAINED
By LAURENCE ARNOLD TANZER
PART TWO.
A HOME rule constitutional provision
should contain these two essential
elements: A grant of power to cities over
their local municipal affairs and a pro¬
hibition against special legislation which
vvould interfere with the exercise of
that power. The one supplements the
other.
The grant to cities of the power of
local self-government does not involve,
as is supposed by some, the setting
up of the city as a community indepen¬
dent of the sovereignty of the State or
having powers in derogation of the legis¬
lative authority of the State Legislature.
Cities would still continue subj'ect to
legislative authority in the exercise of
the powers granted, as in all other re¬
spects. Private business corporations
are not made exempt from regulation by
the Legislature because they are organ¬
ized under charters authorized by gen¬
eral law empowering their stockholders
and directors freely to manage their in¬
ternal affairs. They must all, none the
less, obey the laws of the State pro¬
vided for their regulation.
Regulation of Banks.
The regulation of banks and insurance
companies, for instance, is recognized as
of great public importance; j-et the Leg¬
islature would not think of passing a law
providing what should be done with re¬
gard to the business of any particular
bank or insurance company, but protects
the public interest by enacting general
rules of conduct for all banks or for all
insurance companies, leaving those in
charge of each company to conduct its
transactions as they may deem wise, sub¬
ject to observance of those general rules.
No one supposes that banks or insurance
companies are thereby made independent
of law or of the sovereignty of the State.
In like manner, the constitutional grant
to cities of the power of local self-gov¬
ernment, coupled with a prohibition of
special legislation regulating the internal
affairs of particular cities, would leave
the legislature clothed with plenary
power to enact all such laws for the
government of cities as might from time
to time seem desirable, regulating city
governments in relation to municipal af¬
fairs as well as in their relation to the
State; and all cities in exercising the
power granted them over their own af¬
fairs would continue to be subj'ect, as
are all private corporations and all citi¬
zens generally, to the power of the Legis¬
lature to pass State laws. Cities would
be subj'ect, for e.xample, to State laws
prescribing uniform systems of municipal
accounting, placing limits on municipal
indebtedness and the like, as well as to
all laws applicable to the State as a
whole. The fear that the grant of the
power of local self-government would
in some way be in derogation of the
sovereignty of the State is a mere buga¬
boo.
The form which the grant of power
shall take presents some difficulties.
Three different ways of conferring the
power have been proposed. The first
way is by enumeration of specified sub¬
jects which cities may regulate for them¬
selves to the exclusion of the legisla¬
ture; the second by a grant in general
terms of the power of regulating local
municipal affair^; and the third by a
LAURENCE ARNOLD TANZER.
mere declaration of the principle of local
self-government, leaving the extent of
the power and the manner of its exer¬
cise to be prescribed by the Legislature.
The first of these methods—that of
enumerating specified subjects over
which cities are to have exclusive power,
is impracticable, because the same sub¬
jects of legislation interest both the city
and the State and should be given ex¬
clusively to neither. Take, for example,
the subject of public health. The State
must retain power to pass general laws
on this subject applicable to all cities and
directing the activities of local health
authorities in relation thereto, while each
city should have power to adopt addi¬
tional local regulations dealing with its
own local problems and the organiza¬
tion and government of its local health
department. .\s it is with health, so
with most other subjects of importance:
Cities should be empowered to deal with
them in their purely local aspects, leav¬
ing in the Legislature power to pass State
laws on the general subject. Any at¬
tempt, therefore, to set apart subjects
of legislation to be dealt with exclu¬
sively by cities would, if the subject
iTiatter be broad, unduly diminish the
powers of the State Legislature,- or if
narrow, grant inadequate powers to cit¬
ies. This method of enumeration would,
in the first case, be dangerous, and in
the second case it would be futile.
Second Method Better.
The second method, that of granting
to cities power, subject to the general
laws of the State, to regulate their own
affairs and adopt their own charters, is
preferable. It is the method which has
been adopted in the constitutions of
twelve States of the Union—Arizona,
California, Colorado, Michigan, Minne¬
sota, Missouri, Nebraska, Ohio. Okla¬
homa, Oregon, Texas and Washington—
that is, in all the constitutions having
any home rule provisions at all. The
principal objection urged against this
method, that it would require judicial
decisions to determine the extent of the
power of local self government and to
draw the line between local municipal af^
fairs and State affairs, is not so serious
as those who raise it would have us be¬
lieve. Constitutional grants of power
are almost universally and of necessity
couched in general terms; and recourse
must be had to the courts to apply thens.
But the litigation which would be neces¬
sary to interpret and apply a constitu¬
tional grant of home rule power to cities
would present no greater difficulties
than constantly arise today in the numer¬
ous litigations involving the validity of
local ordinances and conflicts between
such ordinances and State laws; and it
would have this great advantage, that a
judicial determination as to the extent
of municipal power would settle the
point involved for all cities of the State,
instead of binding only the particular
city where the case arose.
The third method, of merely declaring
the principle, leaving its application and
definition to the Legislature, leaves fewer
questions to be determined by the courts,
but, on the other hand, makes the cities
dependent on legislative action to make
effective the p-rant of power. This dis¬
advantage tends to disappear if there is
an adequate prohibition against special
legislation dealing with local municipal
affairs.
Evils of Special Legislation.
In fact, from the practical standpoint
a prohibition of such special legislation
is of greater importance than the precise
form of the grant of power. As has been
pointed out, legislative domination of
municipal affairs has been operative for
evil in this State, mainly through the
practice of passing such special legisla¬
tion. If the power and the temptation to
pass these special laws are removed, the
evil will tend to correct itself. In addi¬
tion to the general laws governing all
cities, which the Legislature should in
any case retain power to enact, each
city needs its own special legislation to
meet its own peculiar local conditions.
If the legislature is deprived of the power
of itself adopting this legislation, it will
be forced by the practical exigencies of
the situation to confer that power on the
cities. In view of this, it becomes less
important whether the grant of power
be in the form of a direct self execut¬
ing grant of power to the cities of the
State or whether it be in the form of a
mandate to the Legislature to pass legis¬
lation granting such power to cities, pro¬
vided only the Legislature is deprived of
the power to interfere in local affairs by
special act.
It is this point of view which underlies
the latest proposal for a home rule con¬
stitutional amendment, introduced in the
Legislature by Senator Mills and Assem¬
blyman Welsh. This proposal is in the
nature of a compromise between the ad¬
vocates of a sweeping constitutional
grant to cities of home rule powers on
the one hand, and those, on the other
hand, who fear lest the power of the
State Legislature suffer through an un¬
duly large grant of power to cities. Tlie
proposal has been introduced at the in¬
stance of the Mayors' Conference and
has been endorsed as an acceptable com¬
promise by the Municipal (government
Association of New York State, by the
Citizens Lfnion and by the City Club
and other home rule advocates.
The Mills-Welsh proposal confers
fiome rule powers in the form of what