Any county, city, town, or township may make and enforce within its limits all local, police, sanitary, and other regulations not in conflict with general laws.1

No municipal corporation can be authorized by the Legislature to pass laws inconsistent with the general laws of the State.2

3

$602. Officers. The following persons are, by the Constitution, declared ineligible to hold municipal offices: persons in default as collectors or custodians of money or property of such municipality. In cities or counties having more than 200,000 inhabitants, no person can at the same time have a State office and a municipal office, or two municipal offices together in any municipality. The fees or salaries of municipal officers cannot, in two States, be increased or diminished during their terms. They must reside in their respective counties or towns. In one, they must have so resided one year. They must be qualified electors.

5

§ 603. Citizens' Rights. By the Constitution of Arkansas, any citizen of any county, city, or town may institute suits in behalf of himself and all others interested to resist an illegal exaction.'

§ 604. Specified Systems of City, County, or Town Government exist in the Constitutions of a few States. 10

$ 605. Franchises." The right to collect rates for water furnished to a municipality is, in California, declared to be a franchise, not to be exercised except by authority of law and in the manner by

10 Thus, the New York Constitution divides cities into three classes: the first class above 250,000, the second class above 50,000, and the third class below 50,000. All laws relating to cities are divided into general and special city laws; general city laws being those which relate to all the cities of one or more classes, and special city laws those which relate to a single city or to less than all the cities of a class. No special city law can be passed except a certified copy be sent to the Mayor, and fifteen days there

after the Mayor returns such bill to the House, passing it on to the Governor with his certificate stating whether the city has or has not accepted the same. The Legislature may provide for the concurrence of the legislative body in cities of the first class. In both the other classes the Mayor and legislative body must act concurrently. If a bill relate to more than one city, it must be sent to all. If it be not accepted or returned without acceptance, it may, nevertheless, again be passed by both branches of the Legislature, and shall then be subject only to the action of the Governor. (N. Y. 12, 2.)

Municipal elections must be held on the Tuesday succeeding the first Monday in November in the odd year, but this does not apply to cities of the third class nor to elections of judicial officers. (N. Y. 12, 3.) 11 See also §§ 435, 536.

law prescribed. So, in Colorado the county commissioners, and in Idaho the Legislature, may empower reasonable maximum rates for the use of water, whether furnished by persons or corporations." And in Texas the right to regulate tolls or freights, for the use of roads, bridges, ferries, landings, or wharves, shall always remain in the Legislature. So, in California the Legislature shall pass laws to regulate the charges of telegraph or gas companies, wharfingers, and warehousemen, where there is a public use.*

"The rights of no city or town in and to its water front, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and other public places, and its gas, water, and electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all the members elected to the council, or to each branch thereof where there are two, and under such other restrictions as may be imposed by law; and in case of the veto by the mayor of such an ordinance or resolution, it shall require a recorded affirmative vote of three-fourths of all the members elected to the council, or to each branch thereof where there are two, had in the manner heretofore provided for in this article, to pass the same over the veto. No franchise, lease, or right of any kind to use any such public property or any other public property or easement of any description, in a manner not permitted to the general public, shall be granted for a longer period than thirty years. Before granting any such franchise or privilege for a term of years, except for a trunk railway, the municipality shall first, after due advertisement, receive bids therefor publicly, in such manner as may be provided by law, and shall then act as may be required by law. Such grant, and any contract in pursuance thereof, may provide that upon the termination of the grant the plant as well as the property, if any, of the grantee in the streets, avenues, and other

Cal. 14, 2; Ida. 15, 2. So, "No municipal corporation shall, directly or indirectly, lease, sell, alien, or dispose of any water-works, water-rights, or sources of water supply now or hereafter to be owned or controlled by it; but all such water-works, waterrights, and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained, and operated by it for supplying its inhabitants with water at reasonable charges:

public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, be and become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise; and any such plant or property acquired by a city or town may be sold or leased, or, if authorized by law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for, and shall make adequate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of the grant. Nothing herein contained shall be construed as preventing the General Assembly from prescribing additional restriction on the powers of cities and towns in granting franchises or in selling or leasing any of their property, or as repealing any additional restriction now required in relation thereto in any existing municipal charter.” 1

2

3

No franchises may be granted for more than a fixed period of time, twenty or thirty years, and there must always be due advertisement and a public bidding.*

$606. Police Power. Any county or incorporated city or town may make and enforce, within its limits, all such local, police, sanitary, and other regulations as are not in conflict with its charter or with the general laws.5

1 Va. 125.

2 Ky. 164.

3 Ala. 228; Va. Of cities, etc., over

6000 population, and except railroads other than street (Ala.).

4 Ky.

Cal. 11, 11; Ida. 12, 2.

PART IV

JUDICIAL SYSTEM

ARTICLE 65

$650. General Principles. · Nearly all States provide in their Constitutions for the separation into three departments, and all in fact apply the common law, though Louisiana preserves its French Code and New Mexico some Spanish law.

1

3

§ 651. Courts. The system of all the States is substantially the same, except that the older States are more apt to leave the establishment of courts to the Legislature than to prescribe it in the Constitution. Only seven States apparently still have a separate Court of Chancery. In many States, however, like Massachusetts, equity jurisdiction, though administered in the Supreme Court or Superior Courts, is kept separate from the common law; and different sittings are held. In other States common law and chancery are declared to be fused. Nearly all the States have a Supreme Court and Superior, Circuit, or District Courts. Some States interpose a Court of Appeals between the Superior Courts and the Supreme Court, while in New York there is a Court of Appeals above the Supreme Court. The words "Circuit" or "District" are in some States used for the courts corresponding to the County Courts in other States, which are below the Superior Court. Most States have a separate Probate, Orphans' or Surrogate's Court, but in the West probate jurisdiction is commonly given to the superior courts or the county courts. There are furthermore many city, municipal, police, or corporation courts, frequently, in the large cities, created by special law; while in the country there are justices of the peace or magistrates with, in the West, minor jurisdiction in civil cases not involving the title to real

1 See §§ 76, 200.

2 Ala. 139; Del. 4, 1; Mich. 6, 1; Miss. 152; N. J. 6, 1; Tenn. 6, 1; Vt. 2, 4. See, however, § 671.

N.

Cal., Ct., Ga., Ida., Mich., N. C.,

Y., O., S. C. See $671.

4 Cal., Ga., Ill., La.

estate, or in criminal cases not amounting to felony, but always with appeal to a higher court.

It might be wished that the States could adopt a more uniform system or at least adopt the same names; in this book the terms "Supreme Court," "Superior Court," "County Court," "Probate Court," "Chancery Court," or "Justices of the Peace" have been used as typical names for the system above described; when there is a Court of Appeals above the Supreme Court that term is used. In New Hampshire alone there are no constitutional provisions affecting the establishment of courts, the whole matter being left to the Legislature;1 while in Kentucky, and presumably others, the Legislature may establish no courts except those provided in the Constitution. A few State Constitutions provide that land registration courts may be established by the Legislature.3 In the absence of such a provision it may be questioned whether such courts, which purport to deprive a land owner of his title without notice and hearing, are constitutional in States, or in any case consistent with the Fourteenth Amendment.1

§ 652. Jurisdiction. — The general division of jurisdiction has been indicated above. When there is a Court of Appeals above the Supreme Court, it has only appellate jurisdiction, and in most States the Supreme Court has no original jurisdiction except to issue habeas corpus, mandamus, prohibition, certiorari, procedendo, quo warranto, injunction, supersedeas, and other prerogative or remedial writs; and in some States it has jurisdiction of suits against the State.5

In a few States the opinion of the Supreme Court may be required upon important questions of law and upon solemn occasions by either branch of the Legislature or by the governor and council. This practice of requiring opinions from the Supreme Court was copied from the English Parliament; but it may be questioned whether it is advisable or, when required by statute, even constitutional. At all events such opinions are not regarded as a binding precedent, and being given without the argument of counsel and

1 N. H. 2, 4.

2 Ky. 135.

Fla. 5, 17; S. D. 5, 21; Va. 100. • Tyler v. Judges, 175 Mass. 71; s. c. 179 U. S. 405.

5 Ida. 5, 10; Neb. 6, 2; N. C. 4, 9. So, often, by statute; and see § 75.

Col. (Amt.) 6, 3; N. H. 2, 73; Mass. 2, 3, 2; Me. 6, 3; R. I. Amt. 12. By the Governor, upon questions concerning the State Constitution: Fla. 4, 13; or concerning important questions of law: S. D. 5, 13.