f ■ I RECENT TENDENCIES IN MUNICIPAL LEGISLATION r I wI isli i •D.EG & 1919 BY HORACE E. FLACK Executive of the Department of Legislative Reference, Baltimore, Md. Reprinted from the Proceedings of the American Political Science Association, 1910. Reprinted from Proceedings of the American Political Science Association, 1910 RECENT TENDENCIES IN MUNICIPAL LEGISLATION BY HORACE E. FLACK Executive of the Department of Legislative Reference, Baltimore, Md. The time allotted for this paper will permit only a brief statement of the tendencies manifested in recent municipal legislation. For this purpose, it may be well at the outset to state the classes of municipal legislation. In the first place, there are the constitutional provisions relating to cities which determine the general powers to be exercised by the legislatures and the cities respectively. Next in order of rank are the municipal codes and special charters passed by the legisla¬ tures and the charters framed and adopted by the cities themselves. For the purposes of this paper, it also seems well to consider briefly the methods of formulating and enacting municipal legislation, to be followed by a consideration of the substantive changes in the organ¬ ization of municipal government. Notwithstanding the numerous constitutional provisions prohib¬ iting or restricting special legislation, municipal government has been in the main regulated by special acts of the legislatures and is even to-day, though to a less extent than formerly, determined by special charters or acts. In many cases where general laws governing cities were required, legislation for all cities of importance was in practice, by the device of classification, applied to individual cities. This method also resulted in frequent and often arbitrary changes. Prior to 1900, only four States had constitutional provisions author¬ izing cities of a specified population to frame and adopt their own charters, these States being Missouri, California, Washington and Minnesota. It is fitting that here in St. Louis, a city which has had a very fair degree of home rule under the earliest constitutional pro¬ vision guaranteeing self-government in almost all purely local matters, a resum4 of the progress made along this line should be given. To show that the tendency is very strong towards these home rule pro¬ visions, it is only necessary to say that as many States have incor¬ porated these provisions in their constitutions within the past eight 117 118 PROCEEDINGS OF THE years as had been incorporated in all the previous history of the coun¬ try. Colorado incorporated such provisions in 1902 ; Oregon in 1906, Oklahoma in 1907, and Michigan in 1908. The Constitutional Con¬ vention of the Territory of Arizona has included such a provision in the constitution to be voted upon in the coming February. The most significant of these provisions is that of Michigan, since it shows that the idea of home rule is spreading eastward. Michigan is the first State east of the Mississippi to adopt such a provision and the growth of the idea indicates that it will be only a question of time until other eastern States will either adopt such provisions in their constitutions or will enact legislation along these lines. The differences in detail to be found in the several constitutions providing for home rule charters cannot be discussed in this brief summary, but since Michigan is the first State east of the Mississippi to adopt this method of municipal legislation, it may be well to add a few words in regard to the provisions of her revised constitution. It is distinctly recognized in the Michigan constitution that city charters shall be subject to the general laws of the State, and it is made the duty of the legislature to prescribe the detailed method for the fram¬ ing and adoption of charters by the electors of the several cities and villages. The first legislature under the revised constitution passed an Act (ch. 279, 1909) prescribing the methods of framing and adopting charters as well as some of the general provisions which must be in¬ cluded in all charters. The restrictions placed on the cities are few and leave the cities to govern themselves as they see fit in respect to nearly all matters of local concern. The cities are thus at liberty to adopt the commission form of government or any other form so long as there is a mayor as the executive head and a body vested with legislative power. The cities with a population of 25,000 or over may own and operate transportation facilities within their limits and any city may purchase private property for any public use or purpose within the scope of its powers. Furthermore, any city or village is empowered to own and operate, within or without its corporate lim¬ its, public utilities for supplying water, light, heat or power. All cities are given the power to alter, amend or repeal any special act affecting any existing municipal department. Each city in its charter may provide for a system of civil service and for the exercise of all municipal powers in the administration of its government, whether such powers be expressly enumerated or not, and through its regularly AMERICAN POLITICAL SCIENCE ASSOCIATION 119 constituted authorities pass all laws and ordinances relating to munici¬ pal concerns, subject only to the constitution and general laws of the State. The constitution also prescribes that the legislature shall pass no special or local act where a general act can be made applicable, and this question is made one for judicial construction; and it is further provided that no local or special act shall take effect until approved by a majority of the electors voting in the district to be affected. The municipal code of Ohio adopted in 1902 was regarded as quite unsatisfactory, since it was a combination of the methods devised for the smaller towns and the old special charter of Cincinnati. Under the former conditions, the legislature determined for nearly every city what officers they should elect, what salaries should be paid, what streets should be opened, the tax limit, bonds to be issued, and what power each and every department of the government should exercise. In fact, the legislature had usurped completely the duties of local councils and home rule did not exist. The code of 1902 was not a great improvement on the conditions existing at the time. It was soon realized that the code of 1902 made it impossible to secure a business-like or satisfactory government. Dr. Wilcox has char¬ acterized it as “the most striking example of deliberate dissipation of responsibility to be found.” Efforts were made from time to time to amend the code of 1902 in a radical manner, but not until the spring of 1908 did success crown the efforts of those seeking to improve the municipal legislation of the State. The so-called Paine Law of 1908 is not in itself a complete code or charter but merely adds amendments to the code of 1902. By these amendments, the boards of public safety and public service are abolished and single directors substituted in their place. The appointment of these directors is placed in the hands of the mayor. Thus, for the first time the responsibility for the conduct of these two principal departments is placed on the shoulders of the mayor. He has the power to remove the directors or the heads of the sub-depart¬ ments at pleasure. The director of public safety is the chief admin¬ istrative authority of the fire, police, charity, correction, and build¬ ing departments. The director of public service is charged with the supervision of the improvement and repair of streets and other pub¬ lic ways; the lighting, sprinkling and cleaning of all public places and the construction of all public improvements and public works. Upon him is also imposed the management of municipal water, lighting, 120 PROCEEDINGS OF THE heating, sewer and garbage plants and other undertakings of the city. In addition to these, he has supervision of the baths, playgrounds, and public buildings, and he is given authority to establish such sub¬ departments and to determine the number of officers, engineers, etc. as may be necessary for the performance of the duties imposed upon him. It will be observed that the departments of public safety and public service embrace nearly all the departments of the city governments. In short, the recent Ohio legislation is a modification of the so-called federal system in that it seeks to fix responsibility and produce unity in the administration of city government. The two directors and the mayor constitute the board of control, and to this board must come every contract which calls for an expenditure of more than $500 and upon it rests the duty of preparing the principal estimates of revenues and expenditures upon which the mayor must base his budget. The Paine Law centralized administrative power, simplified the gov¬ ernmental machinery, and made it possible to locate responsibility. The mayor has become actually, not figuratively, the responsible head of the administrative departments in the city government. It seems of sufficient importance to add that by this law, for the first time in the history of Ohio, a general merit system has been intro¬ duced into the government of its cities. There are apparently two reasons or motives which are aiding in the extension of the principle of home rule for cities. The first one, the time required by the legislature in passing and amending special char¬ ters, is probably the most potent one; the second reason is the demand on the part of the cities and the recognition on the part of the rest of the State of the justice of the demand that the cities be given the power to act for themselves in purely local matters. The legislature of West Virginia recognized the weight of the first reason as shown by the following resolution adopted at its last session: Whereas, A great portion of the time of the Legislature of West Virginia is occupied in considering and passing bills incorporating municipalities within said state, and making changes in charters here¬ tofore granted, and Whereas, The time so employed could be profitably spent in the consideration of legislation affecting the interests of the people of said state as a whole, it is hereby Resolved by the Legislature of West Virginia: That the Governor of said state be, and he is hereby authorized and empowered, within sixty days from the date of the adjournment of the present session AMERICAN POLITICAL SCIENCE ASSOCIATION 121 of said legislature, to appoint a committee consisting of three to pre¬ pare a municipal code for the State of West Virginia, which said committee shall report the result of its work to the next regular ses¬ sion of the Legislature, or to the Governor, if sooner completed. As a result of this resolution, a commission was appointed and the report recently issued by it calls particular attention to the loss of time and the great expense involved in the special legislation for cities, it being estimated that this alone costs $30,000 at each session of the legislature. The commission also calls attention to the fact that special charters are generally ill-considered and that the consider¬ ation of them impedes other important legislation. In fact, it is cited that, in self defense, the legislature passed the resolution with the view of securing a general act for the government of all the cities and towns of the State. After a thorough investigation, the com¬ mission submitted a plan embodying the following features: 1. Charters, and amendments thereto, may be procured without special acts of the legislature. 2. A wholesome amount of home rule is provided. 3. Certain general provisions are made applicable to all cities of the same class. There is submitted with the report the draft of a general law for all cities of each class and a proposed charter which embodies many features of commission government, but each city is given power to change the charter to conform to its wishes, provided such change does not conflict with the general provisions applicable to all cities in its class. By this means each city can practically provide for its own form of government. Even the form of charter proposed does not go into small detail, but contains general provisions only, leaving the details to be provided by ordinances. If the report of the com¬ mission is accepted the cities of West Virginia will be able to provide for the commission plan of government, the initiative and referendum, civil service, non-partisan primary and elections, etc., for it is stated that the principle of home rule should permit the people of any city to govern themselves in these respects as they desire. Although the legislation recommended by the commission, even if adopted, will not be as effective, since not so permanent, as the pro¬ visions in the Michigan constitution, it is nevertheless very note¬ worthy as showing the growth of the idea of home rule in the eastern States. The report also states that it has drafted the proposed legis¬ lation so as to concentrate power and fix responsibility. 122 PROCEEDINGS OF THE The Charter Commission of New York appointed by Governor Hughes in 1907 considered what the relation between the city and State should be, as well as the question of the centralization or diffu¬ sion of the powers exercised by the city. In regard to the former, the commission had the following to say: “A virile municipality, once endowed by a proper measure of self-government, should settle for itself questions which in their relation to the State as a whole, were distinctly local.” As to the second question, the commission sug¬ gested a greater degree of centralization in city government. Another tendency to be noted has already been mentioned in con¬ nection with home rule; namely, the concentration of power and the location of responsibility. This tendency is to be observed not only in the cities under the commission form of government, but in cities which retain the legislative department as a distinct and separate branch of the city government. This is to be noted particularly in Cleveland and other Ohio cities under the “ Paine Law” of 1908, Boston, the cities of Pennsylvania, and Indiana, and in the proposed legislation recommended by the Municipal Commission of West Virginia. Another development has been the reduction in the size of legisla¬ tive bodies and the tendency to abolish ward lines. In this connec¬ tion, it is also well to notice the general tendency to substitute a uni¬ cameral for the bicameral council. This has been done quite recently in Boston, and in nearly every case of charter revision within the past few years, this has either been done or recommended. The Board of Freeholders of St. Louis has recommended the change from a bi¬ cameral to a unicameral system. The proposed charter for Balti¬ more also provides for a unicameral council. It is not necessary to call attention to the fact that the commission plan of government also provides for a small legislative body elected at large. The growth of the idea of non-partisan primaries and elections is worthy of note. This principle has not been confined to small cities under the commission plan, but it is to be found in Boston, Spokane, and only during the past month has San Francisco been added to the list. Non-partisan elections are not to be found in all commission government cities, but the more recent of these charters provide for them, especially those modeled after the so-called Des Moines plan. In some of the cities, nominations are made by petition, as in Boston, while in others, as in Des Moines and San Francisco, they are made in non-partisan primaries. The chief feature is that there is nothing AMERICAN POLITICAL SCIENCE ASSOCIATION 123 on the ballot to indicate the source of the nomination or the party affiliation of the candidates. In San Francisco, provision is made to the effect that if any candidate at the primary receives a majority of the votes cast, he shall be declared elected, thus avoiding the neces¬ sity of any further election for that office. Preferential voting has been incorporated in the charter of Grand Junction, Colorado, and this is, I believe, the first time this principle has been adopted in any city or State in this country. Under this system, opportunity is given the voter to record his first, second and third choices. Only one election has been held under its provisions and the notices of the result have been favorable. At present much attention is being given to what is known as the “ Short Ballot” movement. There is an organization for the purpose of promoting this idea and it seems to be making rapid headway. The short ballot is secured in cities with commission government, but it is not confined to this class of cities. Under the present charter of Boston, there will ordinarily be only about five candidates to be voted for, and this is quite a contrast to the ballot to be found in a large number of cities. The extension of the merit system has made great progress during the last few years. Mention has already been made of the provision applying to all Ohio cities, and it may be added that it is to be found in nearly all commission government cities. The new charter of Kansas City, Mo., provides for it and it is incorporated in the pro¬ posed new charter of St. Louis. The Charter Revision Commission of Baltimore included it in the proposed charter there, but the charter failed to pass the legislature. Philadelphia has had the merit system since 1906, and there has not been a case of charter revision in any large city during the past three or four years in which provision has not been made for it. A very rapid and striking development in municipal legislation during recent years is that in regard to what is known as the com¬ mission plan of government. Starting with Galvestion in 1901, the plan has spread until to-day at least one hundred cities and towns are governed by it. Most of these have adopted it during the past two or three years, and the question is being agitated in a number of places. Memphis, Tennessee, is the largest city which has thus far adopted this plan. A campaign is at present being waged in Buffalo for it, but the outcome is uncertain. A feature which is to be found in many of the commission plan 124 PROCEEDINGS OF THE cities, but to be found in other cities as well, is that providing for the initiative, referendum, and recall. The progress of these ideas has also been very remarkable. Provisions for these are to be found in a number of western cities. Los Angeles has had them for a num¬ ber of years, and San Francisco has just recently adopted a charter amendment containing the same features. Several cities have the initiative and referendum provisions without the recall, but the ten¬ dency now seems to be to include all three. Boston has a provision making it possible to recall the mayor at the end of two years, but has no provision for the initiative and referendum. Through these provisions, greater and more effective popular control over legisla¬ tion is secured. The question of excess condemnation by cities is receiving consider¬ able attention, but as far as I have been able to learn, there has re¬ cently been only one piece of legislation on this subject. Baltimore, by an act of the legislature of Maryland in 1908, was given the power to condemn more land than was necessary for any parkway, boule¬ vard, park, public building, etc., and to sell thereafter such excess, thereby enabling the city to get the increment added to the value of the land by the public improvement. Boston is now trying to secure this power, and it is likely that other cities will also eventually possess it. Some of the other tendencies which it is not possible to discuss in this paper are *the substitution of single responsible heads for boards and commissions, longer terms for officials, giving the mayor greater power in regard to the appointment and removal of officials, shorten¬ ing the terms for public service franchises and giving the people greater power in the granting of such franchises. In conclusion, the recent tendencies in municipal legislation may be summarized as follows: 1. The extension of home rule. 2. The concentration of power and the location of responsibility. 3. The extension of the merit system of appointment for subordi¬ nate positions. 4. Smaller legislative bodies and the substitution of a unicameral for the bicameral council, with either the abolition of ward lines or a widening of election districts. 5. Non-partisan nominations and elections. 6. A short ballot. 7. Commission plan of government. AMERICAN POLITICAL SCIENCE ASSOCIATION 125 8. 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