PREFACE

BROADLY construed the term "municipal home rule" has reference to any power of self-government that may be conferred upon a city, whether the grant of such power be referable to statute or constitution. In American usage, however, the term has become associated with those powers that are vested in cities by constitutional provisions, and more especially provisions that extend to cities the authority to frame and adopt their own charters. Powers thus conferred by the people of a state through the medium of their fundamental law create for the city constitutional rights which may, like the similar rights of private persons, be defended in the courts against invasion by the legislative arm of the government. Such rights it would seem are appropriately designated rights of home rule. This is certainly the sense in which the term "home rule" is descriptively employed by our courts in an ever increasing number of cases, although in point of fact the term has never been given legal definition and can scarcely be regarded as a term of our law at all. It is in this restricted sense, therefore, which is likewise in fair harmony with the popular conception of what it imports, that the term "home rule" has been used to describe the general subjectmatter of this volume.

There are now twelve states in which certain or all cities enjoy the power to frame and adopt their own charters. Wherever in any state this right has been enjoyed and exercised for a considerable length of time it has given rise to numerous difficult questions. These have of necessity been presented to the courts for solution. The cases upon this subject already constitute a distinct and important branch of our state constitutional law. It seems obvious that the time has arrived when this branch of law should as a whole be

336082

subjected to review and critical analysis. This is one of the objects of this work. It is submitted with the hope that, having accomplished this object with moderate success, it may be of referential service alike to the courts and to the legal profession, especially in the states which have conferred upon cities the charter-making power. This is not, however, the primary object of this study. The law of municipal home rule- if such it may be called — is preeminently public law. It is, or should be, of less importance to the practitioner than to the student of politics, to the maker of constitutions and of laws, to the active but serious-minded reformer, and to that vast host of laymen who, with or without participation, are deeply interested in the betterment of municipal government in the United States. There is perhaps no subject that lends itself more readily to fluent discourse than this subject of home rule for cities. Arguments without number may be readily adduced in its favor — arguments that are none the less of compelling force because of their splendid generality. The fact is, however, that home rule in practice is a matter of harassing details, of knotty problems of law, and of concrete questions that require yes-or-no answers. It is in the face of these that generalities fail to suffice. In this work the smooth path of general argument has been wholly eschewed. It has been assumed that home rule as a general, political, and more or less abstract concept is desirable; and it is recognized that whether desirable or not it is a legal actuality in one-quarter of the states of the Union and an imminent probability in others. Without sentiment, therefore, and without appeal to all that is picturesquely indefinite in the notion of self-government, this study strikes into the rough and only partly broken field of the applied problems of home rule. The effort has been made to study the cases not only for the legal principles declared but also in the light of the practices both of cities in the making of charters and of legislatures in the enactment of laws. In other words, in so far as is possible, the attempt has been made to set forth the net governmental results of home rule in the states in which it has been put into operation. This, then, is the primary object of this work to wit, that the specific questions that have arisen may be marshaled into review; that the difficulties, real and otherwise, which the courts have encountered in construing

home rule provisions of constitutions may be understood and appreciated; and that the actual relation in law between the city as an autonomous unit and the state government as its restricted superior may be comprehended to the extent at least to which it has been settled by judicial decree and by charter and statutory practices,

It seems probable that few if any of the more recent constitutional provisions granting home rule powers have been framed with an accurate and detailed knowledge of the legal problems to which similar provisions have elsewhere given rise. If they have been drafted with such knowledge at hand, the least that can be said is that the authors of these provisions have been inexcusably shortsighted. They have certainly imposed an unnecessary onus upon the courts already much abused for their failure to respond to our individual views respecting the policies which we in large measure compel them to determine by the use of vague and undefined phrases in our constitutions. It may be that it is impossible to confer broad powers of home rule in terms of such definiteness and precision that the courts will find no difficulty in the matter of construction and application. But it seems patent that the makers of constitutions should wrestle earnestly with the task of avoiding the various pitfalls of uncertainty which the courts have discovered in most of the constitutional provisions upon this subject, and that they should endeavor to give unmistakable answer at least to those concrete questions which have been recurrently presented elsewhere. It is idle to seek the solution of a problem without an understanding of its practical difficulties. Many, though by no means all, of the difficulties of the home rule problem have found exposition and a measure of wise or unwise solution in the books. No constitutional provision granting home rule powers should be drafted without an accurate and detailed knowledge of the origin and nature of these difficulties. It is unjust that the courts should be compelled to give precise definition to terms which have no precision of meaning and be forced to determine complicated questions of public policy which the framers of constitutions have either lightly ignored or deliberately dodged. This book has been written with the end in view that those who may be interested in or responsible for the writing of constitutional provisions conferring home rule powers may have