The Right To Local Self-Government
The Right To Local Self-Government
The Right To Local Self-Government
IV
Author(s): Amasa M. Eaton
Source: Harvard Law Review, Vol. 14, No. 1 (May, 1900), pp. 20-38
Published by: The Harvard Law Review Association
Stable URL: https://www.jstor.org/stable/1322629
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20 HAARVARD LAW REVIE W.
IV.
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THE RIGHT TO LOCAL SELF-GOVERNMENT. 21
"Counsel on the argument very properly and very ably placed the
right to redress chiefly on the ground that the rights and duties of con-
stables were for many purposes recognized and fixed by our constitu-
tional polity, and so connected with the course of criminal justice as to
be beyond legislative annihilation. The argument, although dealing with
very ancient affairs, in nio sense belongs to mere antiquarian curiosity.
It is very unfortunate and very discreditable that so little heed is some-
timies paid to the continued and perpetual importance of institutions
which form an essential element in the organic life of our government.
Courts, at least, are bound to respect what the people have seen fit to
preserve by constitutional enactment, until the people are unwise enough
to undo their own work. The loss of interest in the preservation of
ancient rights is not a very encouraging sign of public spirit or good
sense."
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22 HARVARD LAW REVIEW.
"Instead of being the source of our laws and liberties, it is, in the
main, no mnore than a recognition and reenactment of an accepted sys-
tem. The rights preserved are ancient rights, and the nmunicipal bodies
recognized in it, and required to be perpetuated, were already existing,
with known elements and functions. They were not towns or counties
or cities or villages in the abstract."
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THE RIGHT TO LOCAL SELF-GOVERNMENT. 23
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24 HAR VARD LA W RE VIE W.
" The result is that the local board of Detroit draws from the fun
the county to carry on its own work in part of the townships entirely
beyond its own jurisdiction, an-d at the expense as well of the cities and
townships where none of this money is spent as of. the townships
patrolled. We think that no such extension of powers can be granted,
and that the attempt to make the grant is illegal."
It would seem from the language used by the court (at p. 529)
in speaking of People v. Mahaney,2 that, were the questi on raised
in that case new, a different result might be reached. At any
rate, this decision places a limit upon the powers of such a board,
and thereby restricts the operation of the decision in People v.
Mahaney. The dissenting opinion of Sherwood, C. J., is notice-
able because of his statement (p. 589) that the constitution is not
a grant of powers but a limitation thereof. It is submitted, on
the contrary, that every constitution is a grant of powers to stated
agencies of government, together with a limitation thereof. See
the authorities already quoted.
Upon this review of the Michigan cases on this subject, it is
evident this state is definitely committed to the views herein pre-
sented as to the inherent right of local self-government of towns
and cities.
We come now to those cases in the Supreme Court of the
United States that are often cited as authorities to sustain the
proposition that towns and cities are the creatures of the state
and are therefore subject to its will without limit or control by
the courts.
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THE RIGHT TO LOCA1L SELF-GOVERNMENT. 25
1 91 U. S. 540 (I875).
4
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26 HARVARD LAW REVIEW.
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THIE RIGHT TO LOCAL SELF-GO VERNMENT. 27
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28 HARVARD LA W REVIE W.
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THE RIGHT TO LOCAL SELF-GOVERNMENT. 29
ity of the legislature, and they derive all their powers from
the source of their creation, except where the constitution of the
state otherwise provides."
Again, as in the last case, this enunciation of a general principle
must be looked upon as obiter dictum, unless it be limited to the
case actually before the court. That case came from the state of
Wisconsin; and it may be a correct statement of the law in that
state, but it certainly would not be a correct statement of the law
in Rhode Island. We have not time nor space to enter now into
an examination of the origin and development of town powers in
Wisconsin, as we have in the case of Rhode Island, and there-
fore we cannot now answer the question thus raised.
Merewether v. Garrett: 1 The question in this case was, upon
the dissolution of a municipal corporation by the legislature,
what property of the defunct municipality is liable for its debts,
and how shall it be got at?
Among the propositions of law enunciated by the court in
this case are several that are obiter dicta if stated as universal
propositions of law, but which may be sustained if confined to
the particular case before the court.
Thus on p. 501 (2) it is stated that the private property of indi-
viduals within the limits of the city whose charter is annulled
cannot be subjected to the payment of the debts of the city,
except through taxation. It is admitted law to the contrary in
the New England states generally.
Page 501 (3) it is stated: "The power of taxation is legislative,
and cannot be exercised otherwise than under the authority of the
legislature. "
But we have seen, in our examination of the history of the towns
of Rhode Island, they had that power before they united to form
the colony, and they therefore did not derive that power from the
legislature. Page 5 ' ' states: " The right of the state to repeal the
charter of Memphis cannot be questioned. Municipal corporations
are mere instrumentalities of the state for the more convenient
administration of local government. Their powers are such as the
legislature may confer, and these may be enlarged, abridged, or
entirely withdrawn at its pleasure. This is common learning,
found in all adjudications on the subject of municipal bodies and
repeated by text-writers." With all due respect to this learned
and august court, we submit that this is erroneous. Witness the
many opinions to the contrary cited in these articles.
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30 HARVARD LAW REVIEW.
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THE RIGHT TO LOCAL SELF-GOVERNMENT. 3I
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32 HARVA RD LA W REVIEW.
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THE RIGHT TO LOCAL SELF-GOVERNMENT. 33
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34 HIARVARD LAW REVIEW.
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THE RIGHT TO LOCAL SELF-GOVERNMENT. 3 5
"The law was held invalid, not because it violated any expres
1 122 Mass. 344 (I872). 244 Ohio State, 348 (i886). 8 24 Mich. 44.
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36 HARVARD LAW REVIEW.
sion of the constitution, for it was admitted that it did not, but because
it was thought to contravene certain principles of local self-government,
that the court by way of inference regarded as part of their system of
government."
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THE RIGHIT TO LOCAL SELF-GOVERNMENT. 37
lature under that act may remove the chief engineer appointed
by the City Council, and may appoint another in his place.
The argument was briefly presented, pages 53, 54, 65, 67, that
municipalities have a right to local self-government, but the his-
tory of the subject and the constitutional development of the state
were not given in any detail. This argument was lightly dis-
missed in the opinion (p. 9I):-
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38 HARVARD LAW REVIEW.
[To be continued.]
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