CHAPTER X

MUNICIPAL GOVERNMENT

Our municipal government, like the rest of our political system, was

originally an inheritance from England. The governing power in colonial

times was a single body, the common council, such as exists in England

to-day, composed of mayor, recorder, aldermen, and councilmen. As a rule

the councilmen were elected annually by the qualified voters, while the

mayor was appointed by the colonial governor. The council had authority

to enact local regulations not in conflict with English or colonial

legislation. The mayor had no veto and usually no appointing power.

The Revolution did not modify the general scheme of municipal government

in any important respect. The mayor was still, as a rule, appointed by

the governor, who now owed his office directly or indirectly to the

qualified voters of the state. The power to grant municipal charters,

which before the Revolution was exercised by the provincial governor,

was now lodged in the state legislature.

The important changes in municipal government were made after, and may

be regarded as an effect of the adoption of the Federal Constitution. As

the centralization of authority in the hands of the common council could

not be reconciled with the new doctrine of checks and balances,

municipal 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 municipal charters granted after the adoption of the Constitution.

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 Constitution rather than

to any intelligent and carefully planned effort to improve the machinery

of municipal 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 municipal

government, however, as a concession to the newer democratic thought,

did not ensure any very large measure of popular control. Municipal

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 masses--that it is

the fruit of an extreme democracy. This conclusion rests upon the

assumption that municipal government in this country is democratic--an

assumption 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 analysis of the situation shows clearly that the municipal

evils so frequently attributed to an excess of democracy are really due

to the system of checks by which all effective power to regulate

municipal 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 municipal government the

nearest approach to democracy. This is the true explanation of the fact

that municipal government is our greatest failure and their most

conspicuous success.

Under any consistent application of the theory of democracy a city would

be entitled 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 constitutional 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 municipal 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. Municipal charters thus have the

same origin as the constitution 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 municipal 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 Constitution of the state. For a

considerable period after the adoption of this constitution, 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 passed 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 municipal corporations as entitled 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 municipal

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 municipal 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 municipal government would have been avoided, however, if

authority once granted to municipalities 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 municipal activity which it would have no right to

invade, has been the main cause of corruption and inefficiency in

municipal government.

The policy of state interference in municipal 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 municipal 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 municipality 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 municipality 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

asset 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 municipal

officers and to fix and change the details of municipal organization,

has legislated municipal 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 passed 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 passed 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 municipal buildings of a

debt-burdened city.' Yet this act was declared constitutional, 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 surpasses

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 municipal 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

municipal 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 constitutional 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 municipal 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 municipal 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 constitutional provisions regulating the

power of the legislature to interfere in municipal affairs. These

limitations relate to those matters wherein the evils of state

interference have been most pronounced. 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 municipal

authorities; to create special commissions and bestow upon them

municipal functions; or to incorporate cities or regulate them by

special laws.

It was not the purpose of these constitutional provisions to grant to

municipalities 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 constitutions, has,

however, largely failed to accomplish its purpose, owing to the fact

that the courts have permitted the legislature to establish so many

classes of cities that it has been able to pass special acts under the

guise of general laws.

The state of Ohio furnishes a good example of the practical

nullification of a constitutional provision by the legislature through

the abuse of its power of classification. The constitution of 1851

prohibited the legislature from passing any special act conferring

corporate powers and provided for the organization of cities by general

laws. The legislature, however, adopted a method of classifying cities

which defeated the object of this provision. In 1901 each of the eleven

principal cities in the state was in a separate class. Consequently all

laws enacted for each of these classes were in reality special acts, and

as such were clearly an evasion of the constitutional prohibition of

special legislation. Nevertheless, this method of classification 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 classification in vogue and invalidated the

charter of every city in the state. It is unfortunate that this change

in the attitude 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 passed into the Democratic column, and

this suit was instituted as part of the plan of the Republican machine

of the state to curb the power and influence of the mayor of that city.

The new municipal code which was adopted at an extra session of the

legislature provided a scheme of government applicable to Cleveland

under which the powers of the mayor were much curtailed.

In the New York constitution of 1894 an effort was made to guard against

the abuse of special legislation. The cities of the state were by the

constitution itself divided into three classes according to population,

and any law which did not apply to all the cities of a class was

declared to be a special act. Special legislation was not prohibited;

but when any act of this kind was passed by the legislature it was

required to be submitted to the authorities of the city or cities in

question, and if disapproved of by them after a public hearing, it could

become law only by being passed again in the regular manner. This merely

afforded to the cities affected by the proposed special legislation an

opportunity to protest against its enactment, the legislature having

full power to pass it in the face of local disapproval. That this is not

an adequate remedy for the evils of special legislation is shown by the

fact that the two charters of New York City enacted since this

constitution went into effect, have both been framed by a

state-appointed commission and passed over the veto of the mayor.

The constitutional changes which have been mentioned must not be

understood as implying any repudiation of the doctrine that a municipal

corporation is a creature of the general government of the state. These

provisions merely secured, or rather sought to secure, to cities some

benefits of a negative character--immunity from certain recognized

abuses of legislative authority. They are the expression of an effort to

find a remedy for the evils of municipal government by restricting the

authority of the legislature rather than by giving cities the power to

act independently in local matters. They have diminished somewhat the

evils of state interference, but they failed to remove the cause by

giving the cities the constitutional right to control their own affairs.

The failure of all these measures to accomplish what was expected of

them finally brought the advocates of municipal reform to a realization

of the fact that the American system made no provision for real local

self-government, and that our refusal to recognize this principle was

the chief cause of the prevalent corruption and misrule of our cities

and the insuperable obstacle to all effective and thoroughgoing reform.

As soon as attention was directed to this feature of the problem it was

seen that no system could be devised that would be better adapted to the

purpose of defeating the end of good city government, since those who

would be directly benefited by the reforms in municipal government were

powerless to bring them about except with the co-operation of the

legislature. Moreover the consent of the legislature, though once given,

was liable at any time to be withdrawn at the instigation of private or

partisan interests, since this body was not directly interested in

establishing and maintaining good municipal government nor responsible

to those who were.

It was finally seen that some more effective measure than the

prohibition of special legislation was required. The next step was the

attempt to secure to cities the needed authority in local matters by

means of a constitutional provision authorizing them to frame their own

charters. In this movement the state of Missouri led the way by

incorporating a home-rule provision in its constitution of 1875.

California, Washington, Minnesota, and Colorado have since adopted

similar provisions. In each of these states the charter is framed by a

commission locally elected except in Minnesota, where it is appointed by

the district judge.

In Missouri this privilege is accorded only to cities having more than

100,000 inhabitants. The constitution of California adopted in 1879

also restricted the benefits of home rule to cities of more than 100,000

population, but it has since been extended to all cities having more

than 3,500 inhabitants. Washington allows all cities having 20,000 or

more population to frame their own charters. Minnesota extends the

privilege to all cities and villages without respect to size, while

Colorado restricts it to cities having more than 2,000 inhabitants.

The right to serve as a member of a charter commission is limited to

freeholders in all these states except Colorado, where it is restricted

to taxpayers. The object of these home-rule provisions was to give

cities some measure of initiative in local affairs without at the same

time permitting them to organize on the plan of simple majority rule. In

the Missouri constitution of 1875 a four-sevenths vote was required to

adopt a charter and a three-fifths vote to ratify an amendment, although

the constitution itself was adopted and could be amended by mere

majority vote. The constitution of California permits ratification by a

majority of the qualified voters, but every charter thus ratified must

be submitted to the legislature for its approval or rejection as a

whole. No charter amendment can be adopted except by a three-fifths

majority of the popular vote and subsequent legislative approval,

although, as in the case of Missouri, a majority vote is sufficient to

approve an amendment to the state constitution. In Washington the

constitution provides for the ratification of charters and charter

amendments by a majority of the qualified electors. The constitutional

amendment adopted in Minnesota in 1896, with its subsequent

modifications, provides for the ratification of charters and charter

amendments by a four-sevenths vote except in the case of certain cities

where a three-fourths majority is required. A three-fifths vote in favor

of a charter amendment is necessary for its ratification. Colorado, by a

constitutional amendment adopted in 1902, permits the ratification and

amendment of charters by a majority vote. A constitutional amendment

adopted in Missouri in 1902 provides for the ratification of charters by

majority vote.

With the exception of California, where the constitutional amendment of

1902 allows 15 per cent. of the qualified voters to require the

submission of a charter amendment, and Colorado, where 25 per cent. of

the voters have that right, the states above mentioned make no provision

in their constitutions for the popular initiative. Both Washington and

Minnesota, however, have permitted it by statute, the former on the

application of 15 per cent., and the latter when 5 per cent. of the

qualified voters demand it.

The chief defect of these constitutional provisions relating to home

rule is that they do not really grant it. There are too many

restrictions imposed upon cities availing themselves of this privilege,

and in two of the states in question, notably in Missouri, they are for

the benefit of the larger cities only. The restriction of the

charter-framing right to freeholders, the withholding from the majority

of the power to amend in California and Minnesota, and the failure to

provide in the constitution for the popular initiative in Missouri,

Washington, and Minnesota indicate a willingness to grant the right of

home rule only under such conditions as are calculated to ensure

adequate limitation of the power of the majority.

These constitutional provisions certainly point in the direction which

we must follow if we would find any satisfactory solution of our

municipal problem. They would, if liberally interpreted by the courts,

secure to cities immunity from interference in local matters. But the

courts are naturally opposed to innovations in our constitutional

system, and have consequently been disposed to give provisions of this

character such an interpretation as will minimize their effect. The

requirement that the charters framed under these provisions must be in

harmony with the constitution and laws of the state has been declared by

the courts to mean that they must not only conform to the laws in force

at the time the charters are adopted, but also that they must conform to

all legislation subsequently enacted. Had the courts been thoroughly

imbued with the principle of local self-government, they could easily

have given these constitutional provisions an interpretation which would

have effectually deprived the legislature of the power to interfere in

purely local affairs. They could have declared all acts by which the

state government sought to invade the sphere of local affairs null and

void, just as they have all acts of the municipal government which have

encroached upon the powers reserved exclusively to the state. What the

courts have done, however, is to hold that these constitutional

provisions merely authorize cities to govern themselves in accordance

with the constitution and in harmony with such laws as the legislature

has or may hereafter enact. The city may adopt a charter which is in

harmony with the constitution and the laws of the state, but the charter

thus adopted may be freely modified by general laws relating to cities.

The unfriendly attitude of the courts has thus largely defeated the

object of these home-rule provisions. The state legislature is still

free to encroach upon or abridge the sphere of municipal

self-government.

The constitutional provisions above mentioned may be regarded as having

a twofold purpose. They were designed to limit, if not destroy, the

power of the legislature to invade the sphere of municipal affairs, and

also to confer upon cities the general power to act for themselves, by

virtue of which they could on their own initiative, subject to certain

restrictions contained in the constitution, set up their own government,

formulate and carry out a municipal policy and manage their own affairs

to suit themselves. This would seem to be implied necessarily in the

grant of constitutional power to frame a charter for their own

government. A liberal interpretation of this feature of the

constitutions in question would have held that all cities to which it

applied were thereby authorized to exercise all powers not expressly

withheld by the constitution or the statutes of the state. This,

however, has not been the attitude of the courts. Their reluctance to

give home-rule provisions a liberal interpretation may be illustrated by

a decision of the supreme court of Washington. In addition to the power

granted to cities of the first class to frame their own charters the

constitution of this state provides that "any county, city, town, or

township, may make and enforce within its limits all such local, police,

sanitary and other regulations as are not in conflict with general

laws." In view of the attitude that courts have generally taken in this

matter it is not surprising that the supreme court of Washington has

intimated that the above-mentioned constitutional provisions are not

self-executing. Moreover, it does not seem disposed to concede even to

cities of the first class any important powers except such as have been

expressly conferred by statute. For example, the statutes of Washington

authorize cities of the first class "to regulate and control the use" of

gas supplied by a private corporation, and the charter of Tacoma

expressly gave to the city council the power to fix the price of gas so

supplied. Suit was brought to enjoin the city from exercising this power

which was claimed under the constitutional and statutory authority given

to cities of the first class. The supreme court held that while Tacoma

had the power to regulate and control, expressly given it by statute, it

did not have the power to fix the price.[164] This decision evinces a

singular lack of sympathy on the part of the court with the home-rule

provisions of the constitution of Washington.

But although the effort to confer upon cities by constitutional

enactment the power to manage their own affairs has thus far largely

failed, it indicates a growing appreciation of the nature of the problem

and the character of the remedy that must be applied. A more clearly

defined and effective public opinion in favor of municipal

self-government must in the end overcome judicial opposition.

The most liberal interpretation of which these constitutional provisions

are susceptible, however, would not have ensured complete municipal

self-government. Unless a city is given adequate financial powers, a

constitutional grant of the right of local self-government does not

enable it to exercise much choice in relation to the more important

matters of municipal policy. By narrowly limiting the powers of cities

in this direction, they have been largely deprived of the advantages

which they would have enjoyed under a consistent application of the

home-rule principle. A certain amount of freedom in the use of the

taxing power would seem to be no less essential to the city than to the

state itself. Within reasonable limits it ought to be conceded the right

to formulate its own scheme of taxation. In every important American

city the taxes collected for municipal purposes greatly exceed those

imposed for the support of the county and state government. In a matter

which so vitally concerns the city it ought to have some right to pursue

a policy of its own. This right has not been recognized, however, even

in the constitutions which have made most concessions to the principle

of municipal home rule. By this means all innovations or reforms in

municipal taxation except such as may be authorized by the state itself

are effectually prevented. It could not, for instance, exempt personal

property from taxation, or make a tax on ground rent the main source of

its revenue.

The power to incur debt for municipal purposes is no less essential than

the power to tax. The present-day city must spend large sums in making

public improvements the cost of which it is necessary to distribute over

a period of years. To limit too narrowly the borrowing power of cities

for these purposes would prevent them from realizing the full benefits

of unhampered self-government. This does not imply that a city should

own and operate all industries of a quasi-public character, but it does

imply that it should have the unquestioned right and the power to do so.

Unless this is the case it is not in a position to secure the most

favorable terms from such private corporations as may be allowed to

occupy this field. Unreasonable restrictions upon the borrowing power of

cities by placing obstacles in the way of municipal ownership of public

utilities tend to deprive the people of the most effective safeguard

against the extortion of private monopolies.

The limitation placed upon the amount of municipal indebtedness has not

had altogether the effect intended. This is mainly due to the fact that

the debt limit fixed in the state constitutions was in many cases so low

that it did not permit cities to make absolutely necessary public

improvements, such as the paving of streets and construction of sewers.

To make these improvements without resorting to credit would require the

owners of the property affected to advance the full amount of their

cost. This would in many instances be extremely inconvenient.

Accordingly, an effort was made to find some method of evading these

restrictions which would be upheld by the courts. This was accomplished

by issuing bonds to be paid out of a special fund which was to be

created by taxes assessed against the property of the district charged

with the cost of the improvements. The courts held that this was merely

a lien upon the property of the district in question, and not a

municipal debt within the meaning of the above-mentioned constitutional

limitations. These decisions by the courts may not appear to be in

harmony with the letter of the constitutional provisions relating to

municipal indebtedness, but they are hardly at variance with their

spirit. The object of these restrictions was not so much to limit the

rights of the property-owning classes as to protect them against the

extravagance of the propertyless voters. To make an exception in favor

of municipal indebtedness incurred in this way and for these purposes

was not calculated to work any hardship upon property owners, but rather

to give them the power to authorize the employment of credit for their

own advantage. They were protected against the abuse of this particular

kind of indebtedness inasmuch as the consent of the owners of a majority

of the property affected was quite generally required.

One influence which helped to mold a public sentiment in favor of

constitutional provisions limiting the amount of municipal indebtedness

was the rapid increase in the debts of American cities during the period

that immediately followed the Civil war. For this condition of affairs

the state government itself was largely to blame. It had prescribed a

form of municipal organization which was scarcely compatible with an

efficient and responsible management of financial matters. Moreover, the

state government, as we have seen, could empower its own agents to

borrow money for a purpose which it had authorized and obligate the city

to pay it. The effort to correct these evils, first noticeable about the

year 1870, took the form of constitutional provisions limiting the

amount of indebtedness which could be incurred by or on behalf of

cities. The main object of these provisions was to protect municipal

taxpayers against an extravagant use of the borrowing power for local

purposes, whether exercised by state or municipal authorities.

Another advantage which these provisions seemed likely to secure to the

capital-owning class deserves at least a passing mention. This policy of

limiting the amount of municipal indebtedness was adopted at a time

when, owing to the rapid growth of urban population, the local

monopolies of water, light, transportation, etc., were becoming an

important and extremely profitable field for the investment of private

capital. The restrictions imposed upon the power of cities to borrow

money would retard, if not preclude, the adoption of a policy of

municipal ownership and thus enable the private capitalist to retain

exclusive possession of this important class of industries.

That the constitutional restrictions upon the general indebtedness of

cities have retarded the movement toward municipal ownership is beyond

question. It is not likely, however, that they will much longer block

the way to municipal acquisition of those industries in which private

management has proven unsatisfactory, since it may be possible to evade

them by resorting to the device of a _special fund_. The same line of

argument which has been accepted by the courts as supporting the

constitutionality of the special fund for local improvement purposes is

no less applicable to special debts incurred for the purchase of

revenue-producing public utilities, such as water works, lighting plants

and street railways. Under this arrangement, however, the city must not

assume any responsibility for the payment of the capital borrowed, the

creditors advancing the purchase price or cost of construction, looking

solely to the earnings under municipal operation for the payment of both

principal and interest. It may be doubted whether the courts in

permitting cities to employ the special fund in relation to local

improvements realized its possibilities in the direction of municipal

ownership.[165]

These restrictions upon the powers of cities indicate a fear that too

much local self-government might jeopardize the interests of the

propertied classes. This attitude on the part of those who have framed

and interpreted our state constitutions is merely an expression of that

distrust of majority rule which is, as we have seen, the distinguishing

feature of the American system of government. It is in the cities that

the non-possessing classes are numerically strongest and the inequality

in the distribution of wealth most pronounced. This largely explains the

reluctance of the state to allow cities a free hand in the management of

local affairs. A municipal government responsive to public opinion might

be too much inclined to make the public interests a pretext for

disregarding property rights. State control of cities, then, may be

regarded as a means of protecting the local minority against the local

majority. Every attempt to reform this system must encounter the

opposition of the property-owning class, which is one of the chief

reasons why all efforts to establish municipal self-government have thus

far largely failed.

We thus see that while property qualifications for the suffrage have

disappeared, the influence of property still survives. In many ways and

for many purposes property is directly or indirectly recognized in the

organization and administration of municipal government. The movement

toward democracy has had less influence upon property qualifications for

the suffrage and for office-holding in its relation to municipal than in

its relation to state and national affairs. When the Federal

Constitution was adopted the property qualifications for voting and

office-holding in force in the various states were not disturbed. The

Constitution did not recognize the principle of universal suffrage. It

not only allowed the states to retain the power to prescribe the

qualifications of voters in state and municipal elections, but also

limited the suffrage for Federal purposes to those who were qualified to

vote at state elections.[166] The removal, during the first half of the

nineteenth century, of property qualifications for voting at state

elections and holding state offices had the effect of placing the

Federal suffrage upon a popular basis.

The influence of the democratic movement was less marked, however, in

the domain of municipal affairs. Here the old system under which voting

and office-holding were regarded as the exclusive right of the

property-owning class has not entirely disappeared. In this as in other

respects the American state has evinced a fear of municipal democracy.

It is true that in the choice of public officials the principle of

manhood suffrage prevails. But the suffrage may be exercised either with

reference to candidates or measures; and in voting upon questions of

municipal policy, which is far more important than the right to select

administrative officers, the suffrage is often restricted to taxpayers

or the owners of real estate. Thus in Colorado, which has gone as far as

any state in the Union in the direction of municipal democracy, no

franchise can be granted to a private corporation or debt incurred by a

city for the purpose of municipal ownership without the approval of the

taxpaying electors. When we consider that 72 per cent. of the families

living in Denver in the year 1900 occupied rented houses,[167] and that

the household goods of a head of a family to the value of two hundred

dollars are exempt from taxation,[168] the effect of this restriction is

obvious. In thus limiting the right to vote, the framers of the state

constitution evidently proceeded upon the theory that the policy of a

city with reference to its public utilities should be controlled by its

taxpayers. The justification for this constitutional provision is not

apparent, however, inasmuch as the burden of supporting the public

service industries of a city is not borne by the taxpayers as such, but

by the people generally. Such a system makes it possible for the

taxpaying class to control public utilities in their own interest and to

the disadvantage of the general public. The part of the community who

are taxpayers, if given the exclusive right to control these industries,

would be tempted to make them an important source of municipal revenue.

They would be likely to favor high rather than low or reasonable charges

for these necessary public services, since their taxes would be

diminished by the amount thus taken from the non-taxpayers through

excessive charges. Where the majority of the citizens are property

owners and taxpayers there is but little danger that public ownership

will be subject to this abuse. But where there is great inequality in

the distribution of wealth and a large propertyless class, democracy is

the only guarantee that the benefits of municipal ownership will not be

monopolized by the property-owning class.

An investigation of the practical working of municipal ownership in

American cities will show that this danger is not purely imaginary. In

the year 1899 53.73 per cent. of the waterworks in this country were

owned and operated by municipalities, public ownership being the rule in

the larger cities. Taking the thirteen largest plants in the United

States, all of which were municipally owned, the income from private

users was $20,545,409, while the total cost of production, including

estimated depreciation, aggregated only $11,469,732. If to this amount

be added the estimated taxes, interest on total investment and rental

value of the municipally owned quarters occupied for this purpose, the

total cost of production would be $22,827,825. Private consumers,

however, used only 80.2 per cent. of the water supplied. If the 19.8 per

cent. supplied free for public purposes had been paid for at the same

rate charged to private users, the total income from these 13

municipally owned plants would have been $25,817,720. This would have

been $2,989,895 in excess of a fair return upon the total investment. No

one would claim that the price of water has been increased under

municipal ownership. As a matter of fact, it has been substantially

reduced and the quality of the water at the same time improved. The

reduction in price, however, has been less than it would have been, had

the interests of the consumers alone been considered. If the object of

municipal ownership is to supply pure water at the lowest possible price

to the general public, there is no good reason why the city should

demand a profit on the capital it has invested in the business. This

would certainly be true where the earnings under municipal ownership

have been sufficient to pay for the plant. In this case it would be an

injustice to consumers to make them contribute, over and above the cost

of operating the plant, an additional amount sufficient to pay interest

on the investment, inasmuch as they have supplied the capital with which

the business is carried on. Any attempt to make municipal ownership a

source of revenue would mean the taxation of water consumers for the

benefit of property owners. Nor is there any reason why the private

consumers of water should be made to pay for the water used for public

purposes. The water needed for public buildings, for cleaning streets

and for extinguishing fires ought to be paid for by those chiefly

benefited--the property-owning class.

If instead of considering these thirteen waterworks together, we take a

single example--the third largest plant--the tendency to make public

ownership a source of revenue is more clearly seen. The income from

private users in the case of this plant was $4,459,404. The city used

for public purposes 29.5 per cent. of the total amount supplied, which

if paid for at the rate charged private consumers would have made the

total income from operation $6,325,395. This would have been $2,929,232

more than was required to pay all expenses, including interest on the

total investment.[169]

In the case of electric-light plants private ownership is the rule, only

460 of the 3,032 plants being under municipal ownership. The Report of

the United States Commissioner of Labor[170] gives the data for 952 of

these plants, 320 of which are municipally owned and operated. Municipal

ownership, however, is mainly confined to the smaller cities and towns.

This is shown by the fact that although more than one-third of the 952

plants above mentioned are under municipal control, only 30 out of 277,

or less than one-ninth of the largest plants, are municipally owned.

This is to be accounted for by the more determined opposition to the

policy of municipal ownership by the capitalist class in the larger

cities, where private management is most remunerative. Municipal plants,

too, are often restricted to public lighting, not being allowed to

furnish light or power for commercial purposes. This restricted form of

municipal ownership is merely a slight concession on the part of the

private monopolist to the taxpaying class. The general public, as

consumers of light and power, derive no benefit from such a policy.

These and other facts which might be mentioned illustrate the natural

tendency of a system under which the power of the masses is limited in

the interest of the property-owning class. The chief evils of municipal

government in this country have their source not in majority but in

minority rule. It is in the city where we find a numerically small but

very wealthy class and a large class owning little or no property that

the general political movement toward democracy has encountered the most

obstinate resistance. Only a small part of our urban population own land

or capital. The overwhelming majority of those who live in cities are

employees and tenants. In the year 1900 74.3 per cent. of the families

in the 160 cities of the United States having 25,000 or more population

lived in rented houses and only 14.5 per cent. in unmortgaged

homes.[171] In the smaller towns the proportion of property owners was

larger, while in the country the majority of the population belonged to

the land-holding class, 64.4 per cent. of the "farm" families owning

their homes, 44.4 per cent. of such families owning homes that were

unencumbered.[172]

"Much has been said concerning the necessity of legislative interference

in some cases where bad men were coming into power through universal

suffrage in cities, but the recent experience of the country shows that

this has oftener been said to pave the way for bad men to obtain office

or grants of unusual powers from the legislature than with any purpose

to effect local reforms. And the great municipal scandals and frauds

that have prevailed, like those which were so notorious in New York

City, have been made possible and then nursed and fostered by

illegitimate interference at the seat of State government."[173]

The numerical preponderance of the property-owning class in the country

and of the propertyless class in the cities must be taken into account

in any attempt to find an explanation of the reluctance on the part of

the state to recognize the principle of municipal self-government. When

we consider that the state government, even under universal suffrage, is

largely government by taxpaying property owners, we can understand why

the progress toward municipal democracy has been so slow. Under

universal suffrage municipal self-government would mean the ascendency

of the propertyless class, and this, from the standpoint of those who

control the state government, would jeopardize the interests of the

property-holding minority.

This is doubtless one of the chief reasons why the state government has

not been willing to relinquish its control over municipal affairs. This

fact is not recognized, however, by present-day writers on American

politics. It is generally assumed that the corruption in state and

municipal government is largely due to the ascendency of the masses.

This view of the matter may be acceptable to those who from principle or

interest are opposed to democracy, but it ignores the facts which a

careful analysis of the system discloses. Even in our state governments

the changes that have been made as a concession to the newer democratic

thought are less important than is generally supposed. The removal of

property qualifications for voting and office-holding was a concession

in form rather than in substance. It occurred at a time when there was

an apparently inexhaustible supply of free land which made it possible

for every one to become a landowner. Under such circumstances universal

suffrage was not a radical or dangerous innovation. In fact, property

qualifications for voting and office-holding were not necessary to the

political ascendency of property owners in a community where the great

majority of the citizens were or could become members of the

property-owning class. It is not likely that property qualifications

would have been removed for state purposes without a more serious

struggle, if the wide diffusion of property in the state at large had

not appeared to be an ample guarantee that the interests of property

owners would not be endangered by universal suffrage. It was probably

not intended that the abolition of property qualifications should

overthrow the influence of property owners, or make any radical change

in the policy of the state government.

It is easily seen that the removal of property qualifications for

voting and office-holding has had the effect of retarding the movement

toward municipal home rule. Before universal suffrage was established

the property-owning class was in control of both state and city

government. This made state interference in local affairs unnecessary

for the protection of property. But with the introduction of universal

suffrage the conservative element which dominated the state government

naturally favored a policy of state interference as the only means of

protecting the property-owning class in the cities. In this they were

actively supported by the corrupt politicians and selfish business

interests that sought to exploit the cities for private ends. Our

municipal conditions are thus the natural result of this alliance

between conservatism and corruption.

We can understand now why the state has been unwilling to permit the

same measure of democracy in municipal affairs that it has seen fit to

employ for its own purposes. This is why our limited majority rule,

which may be safe enough in the state government, is often deemed

inexpedient for the city. It is also the reason for keeping the more

important municipal powers under the control of the state government, as

well as the ground for continuing property qualifications in the city

after their disappearance from the government of the state.

The checks above mentioned are not the only ones to be found, however,

in our municipal government. The city is organized, like the state

government, on the plan of distributed powers and diffused

responsibility. It contains, as a rule, an elaborate system of checks

which affords little opportunity for the prompt and effective expression

of local public opinion in the administration of municipal affairs. At

the same time, it gives the municipal authorities power to inaugurate

and carry out policies to which local public sentiment may be strongly

opposed. This is seen in the control which the mayor and council quite

generally exercise over the matter of municipal franchises. Probably not

a city of any importance could be mentioned in which the council has not

granted privileges which have enriched individuals and private

corporations at the expense of the public. This power has been the chief

source of municipal corruption, since it has made the misgovernment of

cities a source of great profit to a wealthy and influential class.

Those who imagine that the ignorant and vicious part of our urban

population is the main obstacle to reform take but a superficial view of

the matter. The real source of misgovernment--the active cause of

corruption--is to be found, not in the slums, not in the population

ordinarily regarded as ignorant and vicious, but in the selfishness and

greed of those who are the recognized leaders in commercial and

industrial affairs. It is this class that, as Lincoln Steffens says,

may be found "buying boodlers in St. Louis, defending grafters in

Minneapolis, originating corruption in Pittsburg, sharing with bosses in

Philadelphia, deploring reform in Chicago, and beating good government

with corruption funds in New York."[174] This is the natural fruit of

our system of municipal government. The powerful corporate interests

engaged in the exploitation of municipal franchises are securely

entrenched behind a series of constitutional and legal checks on the

majority which makes it extremely difficult for public opinion to

exercise any effective control over them. The effort to provide a remedy

for this condition of affairs took the form of a movement to limit the

powers of the council. Boards and commissions have been created in whose

hands have been placed much of the business formerly controlled by this

body. The policy of subdividing the legislative authority of the city

and distributing it among a number of independent boards has been

carried so far, notably in New York, that, as Seth Low observes, the

council has been largely deprived of all its legislative functions with

the single exception of the power to grant public franchises.[175] It

must not be inferred, however, that public opinion has favored the

retention of this power by the council. The attempt on the part of the

people to control the franchise-granting power has thus far largely

failed, not because of any lack of popular support, but because our

constitutional and political arrangements have made it almost impossible

for any reasonable majority to overcome the opposition of organized

wealth.

Our efforts to bring about reforms in municipal government have thus far

largely failed to accomplish what was expected of them because we have

persistently refused to recognize the principle of majority rule. We

have clung tenaciously to the system of checks and balances with all its

restraints on popular control. The evils of municipal government are not

the evils of democracy, but the evils of a system which limits the power

of the majority in the interest of the minority.

The Spirit of American Government A Study Of The Constitution: Its Origin, Influence And Relation To Democracy · 第 10 / 15 章