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CHAPTER VIII.

THE SEVERAL GRADES OF MUNICIPAL GOVERNMENT.

IN the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate.

In contradistinction to those governments where power is concentrated in one man, or one or more bodies of men, whose supervision and active control extend to all the objects of government within the territorial limits of the State, the American system is one of complete decentralization, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national Constitution was formed, under which the States, while yielding to the national government complete and exclusive jurisdiction over external affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to national union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road, and school districts, and to confer upon each the powers of local legislation, and also to incorporate cities, boroughs, and villages wherever a dense population renders different rules important from those which are needful for the rural districts.

The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm. for the purposes of municipal government has existed in England from the earliest ages; and in America, the first settlers, as if

1 Crabbe's History of English Law, c. 2; 1 Bl. Com. 114; Hallam's Middle Ages, c. 8, pt. 1; 2 Kent, 278; Vaughan's Revolutions in English History, b. 2,

c. 8.

instinctively, adopted it in their frame of government, and

* no other has ever supplanted it, or even found advocates. [* 190] In most of the colonies the central power created and provided for the organization of the towns;1 in one at least the towns preceded and created the central authority; 2 but in all, the final result was substantially the same, that towns, villages, boroughs, cities, and counties exercised the powers of local government, and the Colony or State the powers of a more general nature.3

For an interesting history of the legislation in Connecticut on this subject, see Webster v. Harwinton, 32 Conn. 131. In New Hampshire, see Bow v. Allenstown, 34 N. H. 351. The learned note to Commonwealth v. Roxbury, 9 Gray, 503, will give similar information concerning the organization and authority of towns in the Massachusetts provinces. And see People v. Hurlbut, 24 Mich. 98. Mr. Elliott well says: "The prime strength of New England and of the whole republic was and is in the municipal governments and in the homes." And he adds, that among the earliest things decided in Massachusetts was, that trivial things should be ended in towns." (1635.) Elliott's New England, Vol. I. p. 182.

86

* Rhode Island; see Arnold's History, c. 7. It is remarked by this author that, when the charter of Rhode Island was suspended to bring the Colony under the dominion of Andros, "the American system of town governments, which necessity had compelled Rhode Island to initiate fifty years before, became the means of preserving the individual liberty of the citizen when that of the State or Colony was crushed." Ib. Vol. I. p. 487.

3.The townships," says De Tocqueville, " are only subordinate to the State in those interests which I shall term social, as they are common to all of the citizens. They are independent in all that concerns themselves, and among the inhabitants of New England I believe that not a man is to be found who would acknowledge that the State has any right to interfere in their local interests. The towns of New England buy and sell, prosecute or are indicted; augment or diminish their rates, without the slightest opposition on the part of the administrative authority of the State. They are bound, however, to comply with the demands of the community. If a State is in need of money, a town can neither give nor withhold the supplies. If a State projects a road, the township cannot refuse to let it cross its territory; if a police regulation is made by the State it must be enforced by the town. An uniform system of instruction is organized all over the country, and every town is bound to establish the schools which the law ordains. . . . Strict as this obligation is, the government of the State imposes it in principle only, and in its performance the township assumes all its independent rights. Thus taxes are voted by the State, but they are assessed and collected by the township; the existence of a school is obligatory, but the township builds, pays, and superintends it. In France, the State collector receives the local imposts; in America, the town collector receives the taxes of the State. Thus the French government lends its agents to the commune; in America, the township is the agent of the government. The fact alone shows the

...

The several State constitutions have been framed with this system in view, and the delegations of power which they make, and the express and implied restraints which they impose thereupon, can only be correctly understood and construed by keeping in view its present existence and anticipated continuance. There are few of the general rules of constitutional law that are not more or less affected by the fact that the powers of government are not concentrated in any one body of men, but are carefully distributed, with a view to being exercised with intelli[*191] gence,* economy, and facility, and as far as possible by the persons most directly and immediately interested.

It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of State policy or dangers of local abuse to warrant the interposition.1

extent of the differences which exist between the two nations." Democracy in America, c. 5.

"It seems to be generally conceded that powers of local legislation may be granted to cities, towns, and other municipal corporations. And it would require strong reasons to satisfy us that it could have been the design of the framers of our constitution to take from the legislature a power which has been exercised in Europe by governments of all classes from the earliest history, and the exercise of which has probably done more to promote civilization than all other causes combined; which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among us many of our most valuable institutions." State v. Noyes, 10 Fost. 292, per Bell, J. See also Tanner v. Trustees of Albion, 5 Hill, 121; Dalby v. Wolf, 14 Iowa, 228; State v. Simonds, 3 Mo. 414; McKee v. McKee, 8 B. Monr. 433; Smith v. Levinus, 8 N. Y. 472; People v. Draper, 15 N. Y. 532; Burgess v. Pue, 2 Gill, 11; New Orleans v. Turpin, 13 La. An. 56; Gilkeson v. The Frederick Justices, 13 Grat. 577; Mayor, &c., of New York v. Ryan, 2 E. D. Smith, 368; St. Louis v.

The people of the municipalities, however, do not define for themselves their own rights, privileges, and powers, nor is there any common law which draws any definite line of distinction between the powers which may be exercised by the State and those which must be left to the local governments. The municipalities must look to the State for such charters of government as the legislature shall see fit to provide; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the general principles with which we are familiar. The [* 192] charter, or the general law under which they exercise their powers, is their constitution, in which they must be able to show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.2

The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is

Russell, 9 Mo. 503; Bliss v. Kraus, 16 Ohio, N. s. 55; Trigally v. Memphis, 6 Cold. 382; Durach's Appeal, 63 Penn. St. 491; State v. Wilcox, 45 Mo. 458; Jones v. Richmond, 18 Grat. 517; State v. Neill, 24 Wis. 149; Bradley v. M'Atee, 7 Bush, 667; s. c. 3 Am. Rep. 309; Burckholter v. M'Connellsville, 20 Ohio, 308; People v. Hurlbut, 24 Mich. 108; Mills v. Charleton, 29 Wis. 415.

1 As to the common law affecting these corporate existences, and the effect of usage, see 2 Kent, 278, 279.

* Stetson v. Kempton, 13 Mass. 272; Willard v. Killingworth, 8 Conn. 254; Abendroth v. Greenwich, 29 Conn. 363; Baldwin v. North Branford, 32 Conn. 47; Webster v. Harwinton, ib. 131; Douglass v. Placerville, 18 Cal. 643; Lackland v. Northern Missouri Railroad Co., 31 Mo. 180; Mays v. Cincinnati, 1 Ohio, N. S. 268; Frost v. Belmont, 6 Allen, 152; Hess v. Pegg, 7 Nev. 23.

deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion. The rights and franchises of

such a corporation, being granted for the purposes of the [* 193] government, can never *become such vested rights as against the State that they cannot be taken away; nor does the charter constitute a contract in the sense of the constitutional provision which prohibits the obligation of contracts being violated. Restraints on the legislative power of control must be

1 St. Louis v. Allen, 13 Mo. 400; Coles v. Madison Co., Breese, 115; Richland County v. Lawrence County, 12 Ill. 1; Trustees of Schools v. Tatman, 13 Ill. 27; Robertson v. Rockford, 21 Ill. 1; People v. Power, 25 IlL 187; St. Louis v, Russell, 9 Mo. 503; State v. Cowan, 29 Mo. 330; McKim v. Odorn, 3 Bland, 407; Granby v. Thurston, 23 Conn. 416; Harrison Justices v. Holland, 3 Grat. 247; Brighton v. Wilkinson, 2 Allen, 27; Sloan v. State, 8 Blackf. 361; Mills v. Williams, 11 Ired. 558; Langworthy v. Dubuque, 16 Iowa, 271; Weeks v. Milwaukee, 10 Wis. 242; State v. Branin, 3 Zab. 484; Patterson v. Society, &c., 4 Zab. 385; Atchison v. Bartholow, 4 Kansas, 124; City of St. Louis v. Cafferata, 24 Mo. 94; People v. Draper, 15 N. Y. 532; Aspinwall v. Commissioners, &c., 22 How. 364; Howard v. McDiamid, 26 Ark. 100; Philadelphia v. Fox, 64 Penn. St. 169; Bradshaw v. Omaha, 1 Neb. 16; Kuhn v. Board of Education, 4 W. Va. 499; Sinton v. Ashbury, 41 Cal. 530; Hess v. Pegg, 7 Nev. 23. The legislature may in its discretion recall to itself and exercise so much of such powers as it has conferred upon municipal corporations as is not secured to them by the constitution. People v. Pinkney, 32 N. Y. 377. The creditors of a county cannot prevent the legislature reducing its limits, notwithstanding their security may be diminished thereby. Wade v. Richmond, 18 Grat. 583. This power is not defeated or effected by the circumstance that the municipal corporation was by its charter made the trustee of a charity; and in such case, if the corporation is abolished, the Court of Chancery may be empowered and directed by the repealing act to appoint a new trustee to take charge of the property and execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. And see Harrison v. Bridgeton, 16 Mass. 16; Montpelier Academy v. George, 14 La. An. 406; Reynolds v. Baldwin, 1 La. An. 162; Police Jury v. Shreveport, 5 La. An. 665. But neither the identity of a corporation, nor its right to take property by devise, is destroyed by a change in its name, or enlargement of its area, or an increase in the number of its corporators. Girard v. Philadelphia, 7 Wall. 1. Changing a borough into a city does not of itself abolish or affect the existing borough ordinances. Trustees of Erie Academy v. City of Erie, 31 Penn. St. 515. Nor will it affect the indebtedness of the corporation, which will continue to be its indebtedness under its new organization. Olney v. Harvey, 50 Ill. 453. A general statute, containing a clause repealing all statutes contrary to its provisions, does not repeal a clause in a municipal charter on the same subject. State v. Branin, 3 Zab. 484.

This principle was recognized by the several judges in Dartmouth College . Woodward, 4 Wheat. 518. And see People v. Morris, 13 Wend. 331; St.