Part 10 (1/2)
The important changes in munic.i.p.al government were made after, and may be regarded as an effect of the adoption of the Federal Const.i.tution. As the centralization of authority in the hands of the common council could not be reconciled with the new doctrine of checks and balances, munic.i.p.al government was reorganized on the plan of distributed powers.
This effort to readjust the political organization of the city and make it conform to the general scheme of the Federal government is seen in the munic.i.p.al charters granted after the adoption of the Const.i.tution.
The tendency toward a bicameral council, the extension of the term for which members of the council were elected and the veto power of the mayor may be attributed to the influence of the Const.i.tution rather than to any intelligent and carefully planned effort to improve the machinery of munic.i.p.al government.
As in the case of the state governments, the development of the system was influenced by the growing belief in democracy. Property qualifications for the suffrage disappeared, and the mayor became a directly elected local official. The changes made in munic.i.p.al government, however, as a concession to the newer democratic thought, did not ensure any very large measure of popular control. Munic.i.p.al government in its practical working remained essentially undemocratic.
It would be perfectly reasonable to expect that popular government would reach its highest development in the cities. Here modern democracy was born; here we find the physical and social conditions which facilitate interchange of thought and concerted action on the part of the people. Moreover, the government of the city is more directly and immediately related to the citizens than is the government of state or nation. It touches them at more points, makes more demands upon them and is more vitally related to their everyday life and needs than either state or national government. For these reasons the most conspicuous successes of democracy should be the government of present-day cities.
Under a truly democratic system this would doubtless be the case. But in this country the most glaring abuses and most conspicuous failures of government occur in the cities. The enemies of popular government have used this fact for the purpose of discrediting the theory of democracy.
They would have us believe that this is the natural result of a system which places political authority in the hands of the ma.s.ses--that it is the fruit of an extreme democracy. This conclusion rests upon the a.s.sumption that munic.i.p.al government in this country is democratic--an a.s.sumption which will not bear investigation. American cities are far from being examples of extreme democracy. In some important respects they are less democratic than the government of either state or nation.
A careful a.n.a.lysis of the situation shows clearly that the munic.i.p.al evils so frequently attributed to an excess of democracy are really due to the system of checks by which all effective power to regulate munic.i.p.al matters is withheld from the majority. In this country popular control is reduced to a minimum in the cities, while in Great Britain and the countries of western Europe we find in munic.i.p.al government the nearest approach to democracy. This is the true explanation of the fact that munic.i.p.al government is our greatest failure and their most conspicuous success.
Under any consistent application of the theory of democracy a city would be ent.i.tled to the fullest measure of local self-government. It ought to be given an absolutely free hand to initiate and carry out any policies of purely local concern. This right, however, the American city does not possess. Local self-government is recognized neither in theory nor in practice under our political scheme. The true local unit is the city, and this, according to our legal and const.i.tutional theory, is merely the creature of the state legislature. The latter called it into being, determines what powers it may exercise, and may strip it of them at pleasure. According to the prevailing practice of our state legislatures and the almost uniform decisions of our courts the exercise of local self-government by our cities is to be regarded as a mere privilege and not a right.
The munic.i.p.al charter was originally a grant of certain privileges of local government in return for money payments or other services rendered to the king. It was a mere concession of privileges based upon expediency, and not a recognition on the part of the Crown of local self-government as an admitted right. As an express and formal statement of the measure of local government which the king would bind himself to respect, it tended to limit his power of interference in matters covered by such charter, since privileges solemnly granted could not with safety be lightly and arbitrarily disregarded. Munic.i.p.al charters thus have the same origin as the const.i.tution of the state itself, in that they are the outcome of an effort to place a check upon an irresponsible central authority.
The legislature of the American commonwealth in succeeding to the power of the king over munic.i.p.al charters manifested at first an inclination to concede to the city the right to a measure of local self-government.
Thus ”the city of New York received from the English kings during the colonial period a charter which, on the Declaration of the Independence of the colony of New York, and the establishment of the new state of New York, was confirmed by the first Const.i.tution of the state. For a considerable period after the adoption of this const.i.tution, changes in that charter were made upon the initiation of the people of the city, which initiation took place through the medium of charter conventions whose members were elected by the people of the city, and no statute which was pa.s.sed by the legislature of the state relative to the affairs of the city of New York took effect within the city until it had been approved by the city.”[160]
But as Professor Goodnow observes, American cities ”have very largely lost their original powers of local self-government.”[161] The original conception of the city charter as a contract which established certain rights of local self-government which the legislature was bound to respect, merely recognized munic.i.p.al corporations as ent.i.tled to the same exemption from unreasonable legislative interference, as the courts have since the Dartmouth College decision enforced in favor of private corporations. If this view had prevailed cities could not have been deprived arbitrarily of rights once recognized by the legislature, but they could have enforced the recognition of no rights not thus granted.
The recognition of this doctrine would have prevented many of the abuses that have characterized the relation between state and munic.i.p.al government in this country, but it would have guaranteed no rights which the legislature had not seen fit to confer. Any liberal interpretation of the theory of democracy must of necessity go farther than this, and make munic.i.p.al self-government a fundamental right which the central authority of the state can, not only neither abridge nor destroy, but can not even withhold, since it is a right having its source not in a legislative grant, but in the underlying principles of popular government.
The failure to recognize the right of local self-government as fundamental in any scheme of democracy was unfortunate. Some of the worst evils of munic.i.p.al government would have been avoided, however, if authority once granted to munic.i.p.alities had been treated by the courts as a limitation of the power of the legislature to interfere in purely local matters. The refusal of the state government to recognize an appropriate sphere of munic.i.p.al activity which it would have no right to invade, has been the main cause of corruption and inefficiency in munic.i.p.al government.
The policy of state interference in munic.i.p.al affairs was the inevitable outgrowth of the doctrine that cities had no powers except such as had been expressly given, or were necessarily implied in their charters.
This lack of the power of initiative made it necessary for cities, as they increased in size and complexity, to make constant appeals to the legislature for permission to supply their wants. Every new problem which the city had to deal with, every new function which it had to perform, was a ground for state interference. This necessity of invoking the aid of the state legislature, constantly felt in every rapidly growing city, tended to develop a feeling of dependence upon legislative intervention as an indispensable factor in the solution of local problems. Thus the refusal of the state government to recognize the right of munic.i.p.al initiative compelled the cities to welcome state interference as the only means of dealing with the new problems with which they were being continually confronted.
Another reason for the extension of state authority at the expense of the munic.i.p.ality is to be found in the twofold character of city government. Besides being a local government the city is also for certain purposes the administrative agent of the state, and as such is properly subject to state supervision. But, in the absence of any clear distinction between state and local interests, it was an easy matter for protection of the former to serve as a pretext for undue interference with the latter.
The city was thus placed at the mercy of the state government, since the legislature could make the needs of the munic.i.p.ality or the protection of the general interests of the state a pretext for any interference calculated to further the private or partisan ends of those who controlled the legislative machine. As cities increased in importance it was found that this unlimited power over them could be made a valuable a.s.set of the party machine in control of the state legislature. The city offered a rich and tempting field for exploitation. It had offices, a large revenue, spent vast sums in public improvements, let valuable contracts of various kinds and had certain needs, as for water, light, rapid transit, etc., which could be made the pretext for granting franchises and other privileges on such terms as would ensure large profits to the grantees at the expense of the general public. That the political machine in control of the state government should have yielded to the temptation to make a selfish use of its powers in this direction, is only what might have been expected.
”The legislature has often claimed also the right to appoint munic.i.p.al officers and to fix and change the details of munic.i.p.al organization, has legislated munic.i.p.al officers out of office, and established new offices. In certain cases it has even provided that certain specific city streets shall be paved, has imposed burdens upon cities for the purpose of constructing sewers or bringing in water; has regulated the methods of transportation to be adopted within the limits of cities; in a word, has attended to a great number of matters which are purely local in character; matters which do not affect the people of the state as a whole, and in regard to which there is little excuse for special legislative action.”[162]
The extent to which state regulation of local matters has been carried in New York is indicated by the fact that in the year 1886 ”280 of the 681 acts pa.s.sed by the legislature ... interfered directly with the affairs of some particular county, city, village, or town, specifically and expressly named....
”The Philadelphia City Hall Building affords a good example of how far this lack of local responsibility may sometimes carry the legislature in the exercise of local powers, and in the imposition of financial burdens on cities. 'In 1870 the legislature decided that the city should have new buildings. The act [which was pa.s.sed to accomplish this result]
selected certain citizens by name, whom it appointed commissioners for the erection of the buildings. It made this body perpetual by authorizing it to fill vacancies.... This commission was imposed by the legislature upon the city, and given absolute control to create debts for the purpose named, and to require the levy of taxes for their payment.
”'The public buildings at Broad and Market streets were,' in the words of Judge Paxson, 'projected upon a scale of magnificence better suited for the capitol of an empire than the munic.i.p.al buildings of a debt-burdened city.' Yet this act was declared const.i.tutional, the city was compelled to supply the necessary funds, and 'for nearly twenty years all the money that could be spared from immediate and pressing needs' was 'compulsorily expended upon an enormous pile which surpa.s.ses the town halls and cathedrals of the Middle Ages in extent if not in grandeur.'”[163]
The legislature is strongly tempted to abuse its power when the party machine in control of the state does not have the political support of the local authorities. One of the most notorious examples of such interference in recent years was the so-called ”ripper” legislation enacted in Pennsylvania in 1901, by which the mayors of Pittsburg and Allegheny were removed from office and the governor given the power to appoint and remove their successors until the regular munic.i.p.al election in the year 1903. The motive for this legislation was the desire to crush local opposition to the state machine by putting the control of munic.i.p.al offices in the hands of a governor friendly to the political boss of the state. In order to provide an opportunity for the mayor appointed by the governor to use his office in building up and perpetuating a local machine that would support the clique in control of the state government, the appointee of the governor was declared eligible for re-election, although his locally elected successors were made ineligible. A more flagrant abuse of legislative authority could hardly be imagined; yet this act was declared const.i.tutional by the supreme court of the state.
Many such instances of partisan interference may be found in the recent legislation of some of the larger and more populous states.
The best example of the misgovernment of cities by the legislature for private or partisan ends is seen in the franchise legislation by which privileges of great value have been secured by street railway and other corporations without any compensation to the cities concerned. The power which the legislature can exercise in the interest of private corporations monopolizing for their own profit the very necessities of life in the modern city--water, light, transportation, communication, etc.--has been one of the most serious evils resulting from state domination of munic.i.p.al affairs. It exposed the legislature to the temptation which individuals and corporations seeking valuable concessions readily took advantage of for their own gain. It thus brought into active operation those forces which have been the chief factor in corrupting both state and munic.i.p.al government.
As soon as it came to be generally recognized that state control of local affairs not only did not prevent, but was, in fact, the chief source of the misrule of American cities, an effort was made to provide a remedy by the adoption of const.i.tutional provisions regulating the power of the legislature to interfere in munic.i.p.al affairs. These limitations relate to those matters wherein the evils of state interference have been most p.r.o.nounced. Thus in some states the legislature is not allowed to grant the use of streets to railways or other private companies without the consent of the munic.i.p.al authorities; to create special commissions and bestow upon them munic.i.p.al functions; or to incorporate cities or regulate them by special laws.
It was not the purpose of these const.i.tutional provisions to grant to munic.i.p.alities any immunity from state control, but merely to forbid certain modes of exercising legislative supervision which, as experience had shown, were liable to serious abuses. The prohibition of special legislation, generally incorporated in recent state const.i.tutions, has, however, largely failed to accomplish its purpose, owing to the fact that the courts have permitted the legislature to establish so many cla.s.ses of cities that it has been able to pa.s.s special acts under the guise of general laws.
The state of Ohio furnishes a good example of the practical nullification of a const.i.tutional provision by the legislature through the abuse of its power of cla.s.sification. The const.i.tution of 1851 prohibited the legislature from pa.s.sing any special act conferring corporate powers and provided for the organization of cities by general laws. The legislature, however, adopted a method of cla.s.sifying cities which defeated the object of this provision. In 1901 each of the eleven princ.i.p.al cities in the state was in a separate cla.s.s. Consequently all laws enacted for each of these cla.s.ses were in reality special acts, and as such were clearly an evasion of the const.i.tutional prohibition of special legislation. Nevertheless, this method of cla.s.sification had been repeatedly upheld by the courts. Its advantages to the party in control of the state government were obvious, since it gave the legislature a free hand in interfering in local affairs for partisan ends. It permitted the state machine to make concessions to a city which gave it political support and at the same time extend state control over those cities in which it encountered opposition. This was the situation down to 1902, when the supreme court rendered two decisions which overthrew the system of cla.s.sification in vogue and invalidated the charter of every city in the state. It is unfortunate that this change in the att.i.tude of the court, though much to be desired, occurred at a time when it had the appearance of serving a partisan end. One of these suits was brought by the Republican attorney-general of the state to have the charter of the city of Cleveland declared invalid on the ground that it was a special act. This charter had been in force for over ten years, having granted liberal corporate powers at a time when Cleveland was a Republican city. Later it pa.s.sed into the Democratic column, and this suit was inst.i.tuted as part of the plan of the Republican machine of the state to curb the power and influence of the mayor of that city.