But the picture is not without its shadows. The usefulness of our municipal corporations has been impaired by evils that are either inherent in them or that have generally accompanied their workings. Some of these may be briefly indicated: 1. Men the best fitted by their intelligence, business experience, capacity, and moral character, for local governors or counsellors are not always, it is feared, it might be added, are not generally, - chosen. This is especially true of populous cities. 2. Those chosen are too apt to merge their individual conscience in their corporate capacity. Under the shield of their corporate character, men but too often do acts which they would never do as individuals. The public, as if wherever they have carried their language and laws, these communities, each with a local administration of its own selection, have gone with them. It is here that they have acquired the habits of subordination and obedience to the laws, of patient endurance, resolute purpose, and knowledge of civil government, which distinguish them from every other people. Here have been the seats of modern civilization, the nurseries of public spirit, and the centres of constitutional liberty. They are the opposites of those systems which collect all power at a common centre, to be wielded by a common will and to effect a given purpose, which absorb all political authority, exercise all its functions, distribute all its patronage, repress the public activity, stifle the public voice, and crush out the public liberty." "Whoever," says De Tocqueville, Euvres Complètes, VIII., "travels in the United States is involuntarily and instinctively so impressed with the fact that the spirit of liberty and the taste for it have pervaded all the habits of the American people, that he cannot conceive of them under any but a Republican government. In the same way it is impossible to think of the English as living under any but a free government." After quoting these words, Prof. Dicey, in his work on the Law of the Constitution, says (2d ed., 1886, p. 173) that "they point in the clearest manner to the rule, predominance, or supremacy of law as the distinguishing characteristic of English institutions"; institutions which we have fully inherited or adopted. What is meant by absolute supremacy of the rule of law in England and America, how it permeates the whole political system, and how it protects and secures the individual man in all of his fundamental legal rights, viz., that no man shall be punished except for a breach of law, and that all classes are subject to the ordinary law of the land administered in the ordinary law courts, with no immunity from liability of any officer or official however high (the King only excepted) who violates the legal rights of any other man, however humble, are so clearly set forth in the instructive work just cited, that it gives us pleasure to commend it to our readers. "The city corporations," remarks a modern jurist, "which have grown up in modern times, are of infinite advantage to society; they bind men more closely together than does any other form of political association. But that which most remarkably distinguishes them from the close corporations which formerly existed, is the general spirit of freedom which has been breathed into them. More especially is this the case with town corporations in America, which are as different from those of England as the latter are from similar corporations in Scotland and Holland." Per Grimke, J., Rosebaugh v. Saffin, 10 Ohio, 31, 37; see also State v. Noyes, 10 Fost. (N. H.) 292; and the opinion of Allen, J., in People v. Albertson, 55 N.Y. 50, 57 (1873), where he says: "The right of (local) self-government lies at the foundation of our institutions." People v. Supervisors, 112 N. Y. 585. Post, secs. 45, note, 58, 72, 73, 183; People v. Detroit, 28 Mich. 228 (1873); s. c. 15 Am. Rep. 202. to retaliate, acts towards corporations in the same spirit. The notion, though not avowed, is quite too much acted upon, that all that can be obtained from a public, or, indeed, from any corporation, is legitimate spoil. Against these, men, usually honest and fair in their dealings, do not scruple to make demands which they would never make against an individual.1 3. As a result, the administration of the affairs of our municipal corporations is too often unwise and extravagant. § 12. Municipal corporations are institutions designed for the local government of towns and cities; or, more accurately, towns and cities, with their inhabitants, are, for purposes of subordinate local administration, invested with a corporate character. To clothe them with powers to accomplish purposes which can better be left to private enterprise, is unwise. Their chief function should be to regulate and govern in respect of local affairs, which can be dealt with better by the people concerned than by the distant central power. To invest them with the powers of individuals or of private corporations, for objects not pertaining to municipal rule, is to pervert the institution from its legitimate ends, and to require of it duties which it is not adapted satisfactorily to execute. Some of the evil effects of municipal rule have arisen from legislation unwisely conferring upon municipalities, at the suggestion often of interested individuals or corporations, powers foreign to the nature of these institutions, and not necessary to enable them to discharge the appropriate functions and duties of local administration. Among the most conspicuous instances of such legislation may be mentioned the power to aid in the building of railways, to incur debts, often without any limit or any which is effectual, and to issue negotiable securities.2 The result has too often been that debts are incurred so large that they press with disastrous weight on the municipality and its citizens. Extraordinary and extramunicipal powers have been too often incautiously or unwisely granted, and the charters or constituent acts carelessly worded and loosely construed. The remedy suggested by experience consists, in part, in constitutional provisions prohibiting the granting of special charters, and requiring all municipal corporations to be 1 These effects are not confined to this side of the Atlantic. "It is a familiar fact," says Mr. Herbert Spencer, "that the corporate conscience is ever inferior to the individual conscience- that a body of men will commit, as a joint act, that which every individual of them would shrink from, did he feel personally responsible." Essays, No. VII. p. 261, Am. ed. 1865; and see Ib., Essays No. 5, for a description - perhaps too highly colored of the unsatisfactory working of the English reformed municipal corporations. 2 See post, secs. 117, 153. organized under general laws. The legislature ought also to be prohibited from allowing municipal corporations to engage in extramunicipal projects, or to incur debts or levy taxes for such purposes. The powers granted to such corporations, and especially the power to levy taxes, ought to be more carefully defined and limited, and should embrace such objects only as are necessary for the health, welfare, safety, and convenience of the inhabitants. The amount of indebtedness that may be incurred, even for municipal purposes, ought also to be limited beyond the power to be evaded.2 § 12 a. Unrestrained power in the central legislative authority to bestow valuable franchises affecting cities and property therein, without the consent of the municipal authorities and of the property owners who are injuriously affected, necessarily makes the city and such owners the sufferers from inconsiderate grants. Administered on business principles, a city ought to derive large revenues from the use of wharves, from railways occupying streets with their tracks, from gas, water, and other companies to which are given the right to lay mains in the streets and public places. Effective 1 “The great increase of corruptions in municipal bodies, growing out of the ability to create by taxation a fund which may be squandered, has made many think'ng men doubt the wisdom of endowing them with the power." Mr. Justice Miller, in Rusch v. Des Moines County, 1 Woolw. C. C. 313, 322 (1868). And note the striking observations of Mr. Justice Agnew on the abuses which attend the administration of finances by municipal bodies and officers, and the too prevalent frauds in the procurement and execution of public contracts. Philadelphia v. Flanigen, 47 Pa. St. 21; Hague v. Philadelphia, 48 Ib. 527. In the Pennsylvania case first cited, the suggestion of the text as to the wisdom of strictly guarding and limiting the power to create debts is well enforced by this learned judge. He truly says: "A valid contract is uncontrollable, demanding its performance at the hands of the judiciary, and calling to their aid the whole power of the government. If an appropriation for its payment is not made this year, it must be in the next or some following." Agnew, J., 47 Pa. St. 21. The gigantic and astounding frauds and corruption perpetrated by what is known as the "Tweed ring," which were revealed in 1871, in the local administration of the affairs of the great city of New York, have awakened public attention to the necessity of more efficient checks upon the misuse of municipal powers. The legis lation which was thereupon enacted to prevent frauds in the future, cannot be said, in view of disclosures in 1886 in reference to the Broadway railway franchises, to have been adequate to the end proposed. It was judicially established that a large majority of the board of aldermen had been guilty of accepting bribes. People v. Jaehne, 103 N. Y. 182; People v. O'Prien, 111 N. Y. 1 (1888). Legislation based upon the principles suggested in the text (secs. 13-15) would, it is believed, have prevented these shocking and scandalous corruptions. The mayor was without real power in the matter of the granting of these franchises by the common council. His veto was overridden. 2 As we shall hereafter see, nearly all of the States which have revised or adopted Constitutions since the above was written, have ordained provisions limiting the power of the State legislatures and of municipalities in respect of each of the four important subjects referred to in the text. organic limitations on the power both of the legislature and of the local authorities to make grants of this character ought to be devised, and the proprietary rights of adjoining property owners protected. Accordingly in late years several States have ordained constitutional provisions of this character. And generally it may be said that experience has shown the necessity of organic provisions more exactly defining and limiting the power of the legislature to enact laws which affect the local and private or distinctly corporate rights of chartered cities, and which involve expenditures of money, the creation of debts and consequent pecuniary burdens, without the consent, or against the will of the local authorities of the municipality or the people thereof.2 § 13. Experience with us has also demonstrated the necessity of more power and more responsibility in the executive head of our municipal institutions. Too often the duties of the mayor or executive officer are only nominal, and to these he gives but little attention, -a natural result of his want of importance, and of his inability to control the administration of municipal affairs. If the office were clothed with dignity and real authority; if the mayor were invested with the veto power, if he had the sole right to appoint and the unrestricted power to suspend or remove subordinate officials or heads of departments, then the citizens could justly demand of him that he should be individually responsible for the proper conduct of the concerns of the municipality, and if griev The 1 By the amended Constitution of New York, which took effect January 1, 1875, it is provided (art. 3, sec. 18) that "the legislature shall not pass any private or local bill granting to any corporation, association, or individual a right to lay down railroad tracks, or any exclusive privilege, immunity, or franchise whatever. legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which, in its judgment, may be provided for by general laws; but no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of that portion of the street or highway upon which it is proposed to construct and operate such railroad, be first obtained." Several other States have simi larly amended their constitutions. Post, chap. xviii., on Streets. The legitimate sources of revenue that may be thus opened to cities is well illustrated by the case of the city of Berlin. In that city, it is stated on good authority that the street railway company not only paves a portion of all the streets it occupies, but pays a percentage of its receipts to the city, whose revenue from this source is about $250,000 a year; and in 1911 the street railway, with all of its equipment, will become the property of the city. Municipal gas-works yield about 18 per cent of the entire annual expenditure of the city as profit; the water-works also yield an annual profit of about $220,000, and even the great sewerage system produces something like a net revenue of the same figure through the annual rates imposed upon householders for the use of sewers. 2 Mr. Low, describing his experience as ances exist, they would know to whom to apply for remedy, or upon whom to fix the blame.1 § 14. Municipal corporations, as they exist in this country, it may be further observed, are of exceedingly complex character. Not here to allude to the legal complexity which inheres in their corporate nature, we may mention that which arises from the exceedingly diverse character of the multiform duties which are confided to their agency and management, requiring the delegation of corresponding powers and provisions for their execution. mayor of Brooklyn (1 Bryce, Amer. Commonwealth, chap. lii.), says: "The habit of interference in the details of city action has become to the legislature almost a second nature. In every year of his term [as mayor] the writer was compelled to oppose at Albany unwise and adverse legislation on the part of the State. No law objected to by the mayor during this interval was placed upon the statute book. It is not too much to say, however, that the great est anxieties of his term sprang from the uncertainties and difficulties of this annual contest, on the one hand to advance the interest of the city, and on the other to save it from harm in its relations to the law-making power of the State." 1 Extended observation of the work ings of our municipal institutions has satisfied the author that the views expressed in the text are sound, and he is glad to find them confirmed by the Hon. Josiah Quincy, in his Municipal History of Boston, published in 1852. Mr. Quincy was mayor of the city of Boston from 1823 to 1828, inclusive, and his opinions are entitled to great respect, not only from his known ability, but large experience in municipal affairs. It is interesting to observe the striking coincidence of his views with the recommendations of the "Committee of Seventy," of New York, respecting municipal administration and the importance of efficient executive superintendence, control, and responsibility. Municipal History of Boston, chap. v. And to the same effect is Mr. Charles Nordhoff's interesting article in the North American Review for October, 1871, entitled "The Misgovernment of New York,-A Remedy Suggested." This vigorous writer sketches the defects in the ordinary mu nicipal charters with a masterly hand, and shows great familiarity with the subject of which he treats. Many of his suggestions may be profitably studied by the legislator. It may be observed that in England, under the reformed municipal system, the right to a voice in municipal management is not universal, but is restricted to occupiers of houses and taxpayers, and yet we have, as we have seen, complaints of municipal extravagance, corruption, and abuse. In the existing system of municipal government in Great Britain, the function of the mayor, as we shall point out in a subsequent chapter, is in many respects essentially different from the function of the corresponding officer in our American municipalities. There the actual work of municipal administration is in effect carried on by the councils and committees, upon whom, rather than upon the mayor, rests the responsibility of the success of municipal rule. Political Science Quarterly, vol. iv., 215 et seq. The charter of the city of Brooklyn which went into effect January 1, 1882, and which has been declared by the highest authority to be such a vast improvement" on any system of government which the city had tried before, "that no voice is raised against it," is based in its reform features essentially upon the principles suggested in the text. See on this subject chap. lii. vol. I. Bryce's American Commonwealth, written by the Hon. Seth Low (the first mayor of Brooklyn under this charter), entitled "An American View of Municipal Government in the United States." It is replete with that wisdom and instruction that come, and can only come, from careful study combined with practical experience. |