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Real estate record and builders' guide: [v. 97, no. 2509: Articles]: April 15, 1916

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