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.