cise of such a power by a municipality, a municipality has no power to enact a rent control ordinance. ERVIN, Justice (dissenting): I cannot agree with the majority's conclusions. The majority holds, first, that the City of Miami Beach does not have the power to enact a rent control ordinance absent specific authorization from the Legislature of the State of Florida. Although such a conclusion would have been correct under the 1885 Constitution, it is not proper under Article VIII, Section 2(b) of the 1968 Constitution and Section 167.005, Florida Statutes, F.S.A., which statutorily implements that constitutional provision. The majority has totally ignored the intent and plain meaning of these new sections. Its holding on this point will return to this state the plethora of local bills, which evil was supposedly obviated by Article VIII, Section 2(b). That section provides: Municipalities shall have governmental, corpo- The comparable provision in the 1885 Constitution, The Legislature shall have power to establish, The difference in the two provisions is obvious. Under the earlier constitution, municipalities had Discussion Notes 1. After the court's decision in Fleetwood Hotel, the legislature enacted a municipal home rule statute apparently intended to permit cities to adopt rent control ordinances. This statute was upheld by the Florida Supreme Court, but the Miami Beach ordinance was once again invalidated on the ground that it was a delegation of power without proper guidelines or standards. City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla. 1974). only such powers as were specifically granted them by the Legislature. "Legislative control over cities... [was] absolute, subject only to the restriction that it shall not contravene some provision of the Constitution." Cobo v. O'Bryant, Fla. 1959, 116 So.2d 233, 236. The converse is now true. The 1968 revision to the Florida Constitution has given municipalities governmental, corporate, and proprietary powers to enact municipal legislation unless otherwise provided by law. Commentary to Art. VIII, Sec. 2(b), 26A F.S.A., pp. 291, 292. Under the pertinent section of Florida's Constitution, therefore, a municipality may enact a rent control ordinance without receiving specific authorization from the State Legislature if (1) rent control is a municipal function and (2) there is no contrary or superseding legislation. Article VIII, Section 2(b), places no other limitations on a municipality's power to enact ordinances. It seems clear to me that rent control can be a municipal function. Accord, Warren v. City of Philadelphia, 1955, 382 Pa. 380, 115 A.2d 218; Heubeck v. City of Baltimore, Md.App.1954, 205 Md. 203, 107 A.2d 99. The housing problems of a community are unquestionably the concern and responsibility of the government of that city. Without adequate, decent housing a city cannot function as a modern peaceful community. Unchecked spiraling rents can destroy it. Certainly those closest to the problem, the people of the affected municipality, are the ones most able to recognize and attempt to cure an untoward condition. It is equally clear that there is no contrary or superseding legislation preventing the City of Miami Beach from enacting this rent control ordinance. The majority, as its third point, holds the ordinance is superseded by Chapter 83, Florida Statutes. Such a position is totally untenable. The chapter deals with the duration and termination of nonfreehold estates, rent, removal of tenants, and deposit money. Nowhere does the chapter mention rent control. Rent control has to do with rents to be paid-nothing else. Chapter 83 does not relate to the amount of rents to be paid. 2. Compare the concern with "local bills" expressed in Justice Ervin's dissent, with that expressed in Anderson v. Bd. of Com'rs of Cloud County, in Chapter 9, Section C. 3. How can both the majority and dissenting opinions rely on the same cases for support? 4. Can governmental powers really be classified as either local or statewide? See Fordham, "Foreword: Local Government," 675. Jefferson v. State 527 P.2d 37 (Alaska 1974) This court has dealt with conflicts between state law and a municipal home rule charter or ordinance in several cases.24 The starting point for an analysis of this issue must be found in the Alaska Constitution, Art. X, Sec. 11: A home rule borough or city may exercise all legislative powers not prohibited by law or charter. The authors of this provision hoped that its simple language and sweeping grant of power would enable home rule municipalities to meet a multitude of legislative needs without depending on specific grants of power from a state legislature.25 They were aware of the difficulties encountered in other jurisdictions where delegations of power to local government units were conferred in terms, such as "matters of local concern" or "of local affairs," which were intended to create an exclusive sphere of municipal action free from any intrusion by the state legislature.26 Attempts by the courts in those jurisdictions to re 24It has been claimed our approach has not always been entirely consistent. See Sharp, Home Rule in Alaska: A Clash Between the Constitution and the Court, 3 U.C.L.A.-Alaska L.R. 1 (1973). 25 Art. X, section 1, the introductory section on home rule in the Alaska Constitution reads: The purpose of this article is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdiction. A liberal construction shall be given to the powers of local government units. 26 See Sharp, supra, note 24 at 3. Most courts fail to distinguish between the types of home rule provisions. The provisions of other jurisdictions described in the text are sometimes designated as "shield" or "protection" provisions and usually require a court's determination of whether an exercise of municipal power is statewide or local in nature, when such exercise of power conflicts with a state statute. Alaska's home rule provision is a "grant" or "sword" of legislative power given to the municipality to be exercised as long as it is not prohibited by law. Art. X, Sec. 11. This difference between "shield" and "sword" provisions was implicitly recognized in Rubey v. City of Fairbanks, 456 P.2d 470, 475 (Alaska 1969) where the court declined to follow California's preemption-by-state-occupation-of-thefield doctrine because of the difference between California's and Alaska's home rule provisions. California's provision is a combination "shield” and “sword," while Alaska's is solely a "sword." See Duvall, Delineation of the Powers of the Alaska Home Rule City: The Need for a Beginning, 8 Alaska L.J. 232, 233-35 (Oct. 1970); Sato & Van Alstyne, State and Local Government Law 216-218 (1970). solve conflicts between local enactments under such limited delegations of authority and state statutes relating generally to the same subject have often led to confusion and inconsistencies. Then too, some commentators have suggested that constitutional or statutory home rule provisions had been rendered ineffective in other states because of restrictive court decisions.28 With this all before them the constitutional delegates undertook to give Alaska home rule municipalities a wide range of powers to meet the differing needs of the varied and scattered communities of this state. It was hoped that the constitutional delegation of authority to local government units under the terms of Art. X, Sec. 11 would lead the courts of this jurisdiction to take a new and independent approach when conflicts inevitably arose between the municipalities and the state.29 The foundation for this new approach has been laid in the past decisions of this court which have favored the exercise of legislative powers by local government units.30 However, to say that home rule powers are intended to be broadly applied in Alaska is not to say that they are intended to be pre-eminent. The constitution's authors did not intend to create "city states with mini-legislature."31 They wrote into Art. X, Sec. 11 the limitation of municipal authority "not prohibited by law or charter." The test we derive from Alaska's constitutional provisions is one of prohibition, rather than traditional tests such as statewide versus local concern.32 A municipal ordinance is not 28 See Fordham & Asher, Home Rule Powers in Theory and Practice, 9 Ohio St.L.J. 18 (1948): Richland, Courts Nullify Home Rule, 44 National Mun. Rev. 565-70 (1955); Sato, "Municipal Affairs" in California, 60 Cal. L. Rev. 1055 (1972). But see also Sandalow, The Limits of Municipal Powers Under Home Rule: A Role for the Courts, 48 Minn. L.R. 643 (1963-64). 29See Sharp, Home Rule in Alaska, supra, note 24, at 22-27. 30See Lien v. City of Ketchikan, 383 P.2d 721-23 (Alaska 1963); City of Juneau v. Hixon, 373 P.2d 743 (Alaska 1962); Rubey v. City of Fairbanks, 456 P.2d 470-475 (Alaska 1969). 31 Duvall, Delineation of the Powers of the Alaska Home Rule City: The Need for a Beginning. 8 Alaska L.J. 232, 240 (Oct. 1970). 32See Sharp, supra note 24, at 30-31; Duvall, supra note 31 at 235, 237-239. In Rubey v. City of Fairbanks, 456 P.2d 470, 475 (Alaska 1969) this court recognized a prohibition test for conflict resolution between state and local legislation: Article X, section 11 of the Alaska constitution provides that a home rule city, such as Fairbanks, 'may exercise all legislative powers not prohibited by law or by charter.' There is no legislative enactment in Alaska that expressly prohibits a home rule city from making assignation a criminal offense. We do not find such prohibition from the fact that the Alaska legislature has extensively covered the field of sexual offenses. We believe there would have to be some additional factor from which the intent of the legislature to prohibit local regulation in the area could be reasonably inferred. We are not aware of any such factor in this case. necessarily invalid in Alaska because it is inconsistent or in conflict with a state statute. The question rests on whether the exercise of authority has been prohibited to municipalities. The prohibition must be either by express terms or by implication such as where the statute and ordinance are so substantially irreconcilable that one cannot be given its substantive effect if the other is to be accorded the weight of law.33 33 We affirm our rejection of the doctrine of state preemption by "occupying the field." We will not read into a scheme of statutory provisions any intention to prohibit the exercise of home rule authority in that area of the law. If the legislature wishes to "preempt" an entire field, they must so state. See Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969). We note that the legislature has done this in its new Title 29, Municipal Code. AS 29.13.100 provides in part: Only the following provisions of this title apply to home rule municipalities as prohibitions on acting otherwise than as provided. Discussion Notes 1. What does the Alaska court mean by "shield" and "sword" home rule provisions? 2. How do the Florida and Alaska approaches to home rule differ? 3. Did the Florida court's approach in Fleetwood Hotel resemble any of those described by the Alaska Court? 4. The case of Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 470 N.E. 2d 266 (1984), which was considered in Chapter 5 with respect to the use of constitutional history to interpret a state constitutional right to bear arms provision, also confronted a major home rule issue. The majority opinion upheld a municipal ban on the possession of operable handguns, stating: Article VII, section 6, of our constitution provides in relevant part: (a)... Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; ... (i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive. (Ill. Const. 1970, art. VII, sec. 6.) The limitation "pertaining to its government and affairs" has been interpreted to mean that ""... the powers of home rule units relate to their own problems, not to those of the state or the nation.'" City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill.2d 1, 5, 2 Ill.Dec. 266, 357 N.E.2d 433. Whether a particular problem is of statewide rather than local dimension must be decided not on the basis of a specific formula or listing set forth in the Constitution but with regard for the nature and extent of the problem, the units of government which have the most vital interest in its solution, and the role traditionally played by local and statewide authorities in dealing with it.... The Plaintiffs seek to apply a freewheeling preemption rule to the exercise of home rule power. They argue in effect that a subject is preempted whenever it is of significant concern to the State or whenever a uniform statewide solution to the problems it entails might arguably be more manageable than individual control by local units of government. Home rule, however, is predicated on the assumption that problems in which local governments have a legitimate and substantial interest should be open to local solution and reasonable experimentation to meet local needs, free from veto by voters and elected representatives of other parts of the State who might disagree with the particular approach advanced by the representatives of the locality involved or fail to appreciate the local perception of the problem. 103 Ill.2d at 502, 470 N.E.2d at 274. Does the Illinois court's description of the relationship between states and local governments bear any analogy to the relationship between states and the federal government? What about the notion of "experimentation"? 5. In 1968, Pennsylvania amended its constitution to provide: Discussion Notes (cont.) Municipalities shall have the right and power to frame and adopt home rule charters. Adoption, amendment or repeal of a home rule charter shall be by referendum. The General Assembly shall provide the procedure by which a home rule charter may be framed and its adoption, amendment or repeal presented to the electors. If the General Assembly does not so provide, a home rule charter or a procedure for framing and presenting a home rule charter may be presented to the electors by initiative or by the governing body of the municipality. A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time. Pennsylvania Constitution, Art. IX, section 2. Interestingly, Article IX, section 14 defines "municipality" to cover "a county." Jefferson B. Fordham described the terms: Plainly the direct constitutional grant of power is self-executing. The section embraces the writer's home rule theory. Neither enabling nor implementing legislation is required. There is reserved to the legislature power to deny to a home rule charter unit authority to exercise a power or function, but there is no express reservation of that sort as to governmental structure and administration. Thus, home rule power as to the latter appears to be plenary. "Judicial Nullification of a Democratic Political Process-The Rizzo Recall Case," University of Pennsylvania Law Review 126 (November 1977): 17. Fordham was criticizing a decision of the Pennsylvania Supreme Court which held that Philadelphia did not have the power, under the provision quoted above, to provide for recall in its home rule charter. See Citizens Committee to Recall Rizzo v. Board of Elections, 470 Pa. 1, 367 A.2d 232 (1976). 6. The most recent home rule recommendations, however, suggest "a direct constitutional devolution of substantive home rule powers dependent only upon the adoption of a home rule charter. It does not place any substantive power or function beyond legislative control by general law. Under this approach a home rule charter is an instrument of limitation and not of grant." Fordham, "Judicial Nullification," 13. The recommendations are contained in Fordham, Model Constitutional Provisions for Municipal Home Rule (1953), reprinted in J. Fordham, Local Government Law 76-84 (rev. ed. 1975). See generally Kenneth Vanlandingham, "Constitutional Municipal Home Rule Since the AMA (NLC) Model," William and Mary Law Review 17 (Fall 1975): 1. 7. On municipal home rule generally, see Harvey Walker, "Toward a New Theory of Municipal Home Rule," Northwestern University Law Review 50 (November-December 1955): 571; Note, "Home Rule and the New York Constitution, Columbia Law Review 66 (June 1966): 1145; Note, "Constitutional Home Rule for Idaho Cities," Idaho Law Review 8 (Spring 1972): 355; Sho Sato, “Municipal Affairs in California," California Law Review 60 (June 1972): 1055; Leon Thomas David, "California Cities and the Constitution of 1879: General Laws and Municipal Affairs," Hastings Constitutional Law Quarterly 7 (Spring 1980): 643; Robert Kratovil and John T. Ziegweid, "Illinois Municipal Home Rule and Urban Land: A Test Run for the New Constitution," DePaul Law Review 22 (Winter 1972): 359. For a provocative evaluation of the development of city powers, see Gerald L. Frug, "The City as a Legal Concept," Harvard Law Review 93 (April 1980): 1057. See also, Jon C. Teaford, "Special Legislation and the Cities, 1865-1900," American Journal of Legal History 23 (July 1979): 189; Robert A. Dahl, "The City in the Future of Democracy," American Political Science Review 61 (December 1967): 953. 8. Regarding county home rule, see Charles M. Kneier, "The Legal Nature and Status of the American County," Minnesota Law Review 14 (January 1930): 141; S. Gayle Lowrie, “Interpretation of the County Home Rule Amendment by the Ohio Supreme Court," University of Cincinnati Law Review 46 (November 1936): 454; Orval Etter, "County Home Rule in Oregon,” Oregon Law Review 46 (April 1967): 251. See also, Jerome G. Rose, "Conflict Between Regionalism and Home Rule," Rutgers Law Review 31 (May 1978): 1; Note, "Intergovernmental Cooperation: Does the 1970 Illinois Constitution Give Units of Local Government the Green Light?" John Marshall Journal of Practice and Procedure 8 (Winter 1974-1975): 295. C. Representation in Local Governmental Units Foster v. Sunnyside Valley Irrigation District 102 Wash.2d 395, 687 P.2d 841 (1984) UTTER, Justice. Two issues are raised by this appeal from the trial court's grant of defendant/respondent's motion for summary judgment.... Second, does RCW 87.03.045 and RCW 87.03.050, relating to a voting scheme for the irrigation district, violate Const. art. 1, Sec. 19 by infringing on the right of suffrage? We conclude that. .. RCW 87.03.045 and .050 unconstitutionally infringe upon appellants' right to vote under Const. art. 1, Sec. 19. The facts are basically undisputed. In 1915, appellants' predecessor, R.E. Wise, contracted with the United States government, on behalf of his "heirs, executors, administrators and assigns" for water rights for a 24.36 acre tract he owned in Benton County. The contract was made pursuant to the federal Reclamation Act "and acts amendatory thereof." He agreed to pay annual installments of $52 per acre of irrigable land for construction costs and additional operation and maintenance charges as prescribed by the act. In 1945, the Sunnyside Valley Irrigation District (SVID) purchased the Sunnyside Canal and its appurtenant works from the United States and assumed its contractual obligations.... Under its agreement with the United States, SVID assumed the obligation to operate and maintain all Reclamation Act irrigation works which extend from the Yakima River to delivery boxes (weirs) within the district. There is one weir available for every 40 acres of irrigable land within the district. Pursuant to its authority under RCW 87.03.240, SVID assesses landowners within the district for this service based on the availability of irrigation water to each acre multiplied by the number of acres owned plus administration costs. Parcels which are one acre or less are assessed a minimum charge based on the "benefit of water available." A weir was located appurtenant to Wise's property. In 1972, Wise's farmland was subdivided and sold as residential lots. The plat for the subdivision failed to provide for irrigation water rights of way or pipelines to the lots from the weir (which was later required by RCW 58.17.310); consequently, the lots do not have access to the water. Nevertheless they have been, and continue to be, assessed for irrigation. Appellants purchased property from within that subdivision and petitioned the board of directors of SVID for exclusion of their property from the district. This request has been denied. Appellants are not eligible to vote for members of the board because in 1966 the district adopted a resolution pursuant to RCW 87.03.045 and .050 which provides that holders of title to land platted or subdivided into residential or business lots not being used for agricultural purposes cannot vote in SVID elections. II Appellants challenge the constitutionality of the district's voting scheme, and of the enabling statute. RCW 87.03.045. They maintain that the scheme violates the equal protection clause of U.S. Const. amend. 14, Const. art. 1, Sec. 12, and Const. art. 1, Sec. 19, by denying them the right to vote in district elections. Under the statute only those landowners whose property is used for agricultural or horticultural purposes may vote, no single landowner can have in excess of two votes (one vote for 1 to 10 acres and an |