act have adopted the contrary view that the action of the courts is inherently legislative.1 § 63. many Constitutional Provisions authorizing Cities to frame their Charters. In of the States are to be found constitutional provisions granting or guaranteeing to cities and other municipalities some degree of autonomy. So far has the principle of self-government been carried that the Constitutions of some States authorize and permit localities of a certain population to frame their own charters, popularly known as Freeholders' Charters. In California this Carey, 184 Ill. 613, rev'g 80 Ill. App. 601. Tennessee. In the application of the principles stated in the text, the Supreme Court of this State has held statutes conferring on the courts the power to incorporate to be unconstitutional. See State v. Armstrong, 3 Sneed (Tenn.), 634; Ex parte Chadwell, 3 Baxt. (Tenn.) 98; s. c. 1 Tenn. chap. xcv.; Ex parte Burns, 1 Tenn. Chan. 83. But a statute simply conferring power to record the petition and designate the boundaries of the corporation is constitutional, as the State, and not the court, determined the extent and nature of the powers of the corporation. Mayor, &c. Morristown v. Shelton, 1 Head (Tenn.), 24. See also note to § 61. In Washington, it is held that a statute which authorizes a majority of the inhabitants of a town or village to present a petition to the court setting forth the metes and bounds thereof and praying that they be incorporated and directs the judge of the court, upon being satisfied that the petition is signed by a majority of the taxable inhabitants, to record an order declaring such town or village duly incorporated, authorizes the creation of a municipal corporation by a judicial court, and is unconstitutional as delegating legislative functions to the court. Territory v. Stewart, 1 Wash. 98. In Wisconsin, it is held that the creation of municipal corporations is the exercise of legislative power and cannot be delegated save as authorized by the Constitution itself; and that the act of determining, either tentatively or finally, whether it is for the best interest of the people that they should be incorporated into a village and fixing the boundaries is not the determination of a mere question of fact, but is the exercise of legislative discretion, and 2 a court a statute attempting to delegate such power to the Circuit Court provided for by the Constitution is invalid. In re North Milwaukee, 93 Wis. 616. A statute declaring valid the incorporation of municipalities under an unconstitutional delegation of authority to the courts, is not unconstitutional as a special law. It applies to a legitimate class of municipalities. State v. Spaude, 37 Minn. 322. 1 In Kelly v. Pittsburg, 104 U. S. 78, 80, where the Supreme Court of the United States held that the annexation of a tract of land to a city against the consent of the owner thereof did not involve any Federal question under the Constitution of the United States, Miller, J., said: "It is not denied that the legislature could rightfully enlarge the boundary of the city of Pittsburg, so as to include the land. If this power were denied we are unable to see how such denial could be sustained. What portion of a State shall be within the limits of a city and be governed by its authority and its laws has always been considered to be a proper subject of legislation. How thickly or how sparsely the territory within a city must be settled is one of the matters within legislative discretion. Whether territory shall be governed for local purposes by a county, a city, or a township organization, is one of the most usual and ordinary subjects of State legislation." 2 Cal. Const., 1879, art. xi. § 8, as amended in 1892 and 1896; Colo. Const. art. xx adopted in 1902; Minn. Const. art. iv. § 36, adopted in 1898; Mo. Const., 1875, art. ix. §§ 16, 17; Wash. Const., 1889, art. xi. § 11. The language of these provisions is not in all respects the same, and the precise words of the several constitu right was at first conferred on cities containing a population of more than 100,000 inhabitants, but it was afterwards extended to all cities containing a population of more than 3,500 inhabitants. These constitutional provisions are framed on the same general plan. Provision is made for the appointment of a board of freeholders of the city to whom is entrusted the duty of preparing a charter.' When the proposed charter has been prepared, it is published in one or more newspapers in the city. After publication for the prescribed period, it is submitted to the electors at a general or special election. In California and Washington a majority of the qualified electors is sufficient for adoption; in Missouri and Minnesota it must be approved by four-sevenths of the qualified voters. In Missouri, Minnesota, and Washington, upon approval by the requisite popular vote, the charter takes effect and supersedes any existing charter and amendments thereof. In California, after the popular vote, it is submitted to the legislature for its approval or rejection as a whole, without power of alteration or amendment. Upon approval by the legislature by concurrent resolution, it becomes the organic law of the city, and supersedes any existing charter, and all amendments thereof, and all laws inconsistent with the new charter. The charter thus adopted may be amended by proposal submitted to the popular vote, but in California amendments can only be made at intervals of not less than two years. In Missouri all popular charters must provide, among other things, a mayor or chief magistrate, and two houses of legislation, one of which at least shall be elected by general ticket. In California popular charters may, in addition to other matters, provide for police courts, boards of education, boards of police commissioners and a municipal police force, and boards of election. These provisions must be regarded as an indication of the popular demand that municipalities should be allowed to govern themselves with greater freedom from legislative interference than tional provisions must be kept in mind App. 96; People v. Adams, 31 Colo. in the study of the judicial decisions of 476. the different States. In Minnesota, the constitutional provision applies to all cities existing at the time of the adoption of the constitutional amendment, and does not apply to cities thereafter incorporated. State v. O'Connor, 81 Minn. 79. As to validity and effect of constitutional amendment providing for a popular charter for Denver, see People . Sours, 31 Colo. 369; Denver v. Adams County, 33 Colo. 1; Boston & C. Smelting Co. v. Elder, 20 Colo. The board of freeholders cannot employ one of its own members as counsel for the board to advise it, and draw a charter. Young v. Mankato, 97 Minn. 4. 2 In Minnesota, popular or freeholders' charters must provide, among other things, for a mayor or chief magistrate, and a legislative body of either one or two houses; if of two houses, at least one of them shall be elected by general vote (Minn Const. art. iv. § 36). heretofore,' but it is unfortunate that the demand should find expression in this form. A prompt, frank, and sincere recognition of local requirements by the legislature will usually render unnecessary any resort to a referendum such as is here provided for, and it may be questioned, upon experience up to the present, whether freeholders' charters will prove to be so satisfactory as to come into general use throughout the country. A series of novel and difficult questions has arisen under these provisions. A city framing its own charter under the Missouri Constitution has been declared by the highest judicial authority to be in a very just sense an imperium in imperio,' and to the prescribed extent this is true. But a charter so framed, so far from being a departure from a republican form of government, is republican in essence and form. The constitutional provisions in 1 In Ex parte Braun, 141 Cal. 204, the court referred to the provisions of the California Constitution as adopted by the people under "a temporary impulse (not yet entirely abated), to carry the notion of what is termed 'local self-government' to extremes." In State v. O'Connor, 81 Minn. 79, 83, Brown, J., explained the origin of the amendment to the Minnesota Constitution thus: "By a constitutional amendment in 1891 special legislation as to cities and villages was wholly prohibited. Thereafter all incorporated cities and villages were limited in the conduct and management of municipal affairs to the power and authority theretofore contained in and conferred by their charters to which no amendments or additions could be made. The result of this was to hamper and embarrass such cities in the conduct of their affairs. Exigencies and new conditions arose, which demanded and required the exercise of greater power than was conferred upon them; but the legislature was powerless to act, except perhaps by general legislation, which was impracticable, because of the varied interests, duties, and responsibilities of different cities. The Constitution prohibited granting any further privileges to such cities, and as a consequence the administration of public affairs thus became very much embarrassed and involved. To obviate all these difficulties, and to place such cities on a broader basis, and in a position prepared to meet and deal with new conditions sure to follow their advancement and growth, it was deemed wise and advisable to authorize them to frame and adopt their own charters. Cities in existence at this time were for the most part incorporated by special charters and, by reason of the Constitutional Amendment of 1891, were absolutely helpless when confronted with new conditions requiring the exercise of additional power." 2 St. Louis v. Western Union Tel. Co., 149 U. S. 465, 468, per Brewer, J. The later decisions of the Supreme Court of Missouri, referred to infra, upon the subject of the relation between a freeholders' charter and the general legislative power of the State, have wisely limited the exclusive power of the city to matters purely, clearly, and indisputably local and municipal, leaving the city in all other matters under the general legislative power of the State. State v. Missouri & K. Tel. Co., 189 Mo. 83. But what is a "local" or "internal" or "municipal” affair as distinguished from a "general" or "State" affair has proved to be a source of much controversy, and the decisions of the courts in the several States have left the subject in such a condition of chaos and uncertainty that the question can, in many instances, only be settled by the highest tribunal of the State in each individual case as it arises. See Goodnow, Munic. Home Rule, pp. 77 et seq., 95-98. 3 People v. Sours, 31 Colo. 369; Hopkins v. Duluth, 81 Minn. 189. In these cases it was urged that the Amendments to the Constitutions of Minnesota and Colorado violated the provision of the Federal Constitution guaranteeing to every State in the Union a republican form of government, but this contention was overruled. It California are self-executing and do not require legislation to give them effect. The authority to provide a municipal government for a city is referable to the law-making power of the State, and the enactment of a charter for a municipality is a legislative act. By the constitutional provisions in California, authorizing cities to frame their own charters, the people have withdrawn from the legislature the legislative authority of the State in reference to municipal government for cities to the extent that it cannot exercise any legislative authority in the enactment of a charter for a municipality until after its provisions have been formulated and approved by the city itself in the manner prescribed by the Constitution; and in that It has, however, been said that even in statutes furthering the exercise of the the case of municipal charters adopted constitutional right conferred upon the by the people pursuant to constitutional cities and making such right available. provision, there are certain things which In Minnesota, it is expressly declared the people cannot do, even by consti- that before any city shall incorporate tutional amendment; viz.: (1) free under the constitutional amendment any portion of the State from the oper- "the legislature shall prescribe by ation of the State Constitution; (2) law the general limits within which delegate to a charter convention the such charter shall be framed" (Minn. making of constitutional amendments; Const. art. iv. § 36). This proviso (3) give to a charter convention the simply requires the legislature to propower to prescribe the jurisdiction and vide such general limitations and reduty of public officers with respect to strictions as it shall deem proper. State government as distinguished is not required to lay out a broad from the municipal or city government. framework for each topic, or a general People v. Sours, 31 Colo. 369; People plan of a charter. But the general v. Johnson, 34 Colo. 143. The reason assigned for this conclusion is that even the people of the State cannot by constitutional amendment set apart any portion of the State in such manner that that portion of the State shall be freed from the Constitution; if any one of these three things may be done by constitutional amendment, a portion of the State would be freed from the Constitution and the State would no longer have any right to legislate for it. It would, in short, be an imperium in imperio, a condition which cannot be brought about or exist even by constitutional amendment, for the reason that such a result would be sub- this requirement to be unconstituversive of a republican form of government and repugnant to the Constitution of the United States, and violative of the compact existing between the State and the Federal government. 1 power and authority to frame city charters granted to the cities by the constitutional amendment ex necessitate extends to all powers properly belonging to the government of municipalities, and the requirement that the legislature shall prescribe limitations within which such charter may be framed, must be construed to mean limitations beyond which the charter may not go. In other words it is made the duty of the legislature to provide such general limitations and restrictions as that body may deem expedient and proper; and the court cannot hold a statute enacted pursuant to tional because of any omission therefrom. State v. O'Connor, 81 Minn. 79. The legislature may, by statute, permit the charter to be submitted to the voters at a special election. The language of the constitutional amendment that the charter shall be submitted to the voters "at the next election thereafter" does not preclude submission at a special election. State v. Kiewel, People v. Hoge, 55 Cal. 612. But in Reeves v. Anderson, 13 Wash. 17, the court held that the constitutional provision of that State was not selfexecuting in such a sense as to pre- 86 Minn. 136. clude the legislature from passing State have limited their legislative authority to the mere approval or rejection of the charter so formulated. The authority thus withdrawn from the legislature and given to the city is none the less a part of the law-making power of the State because it is conferred upon the city in conjunction with the legislature. The act of the city in formulating the charter and determining the provisions to be included therein has the same force and authority as a charter with the same provisions enacted by a legislature that is not restrained by any constitutional limitations. The requirements of the Constitution are mandatory and peremptory, and a failure to comply with them will invalidate the charter. The purpose of these provisions is to free city governments from the authority and control formerly exercised over them by the legislature, and the legislature cannot curtail the rights conferred upon municipalities to frame their own charters. The power and authority conferred by the Constitution upon cities to frame their own charters extend to all subjects and matters properly belonging to the government of municipalities, and this necessarily includes any subject appropriate to the orderly conduct of municipal affairs. In Missouri and Washington the 4 People v. Gunn, 85 Cal. 238; Sheehan v. Scott, 145 Cal. 684. But in approving a charter under the provisions of the California Constitution, the legislature is not exercising the lawmaking power in the same sense as when it enacts a statute upon a subject which is entirely within its power, and its approval of a charter does not prevent judicial inquiry into the question whether the constitutional requirements as to the enactment of the laws have been met when the validity of different provisions of the charter are drawn in question. People v. Gunn, 85 Cal. 238. That the approval of a freeholders' charter by the legislature is not in itself an exercise of the general law-making power of passing a statute is illustrated by People v. Toal, 85 Cal. 333. Another provision of the Constitution, as then in force, declared that the judicial power of the State should be vested in certain enumerated courts "and such inferior courts as the legislature may establish in any incorporated city or town, or city and county." It was held that this provision entrusted the establishing of inferior courts to the legislature, which must act by regularly passing a statute. Consequently, police courts for a city could not be established by a freehold ers' charter and adopted by a vote of the electors of the city, and approved by the legislature. Since this decision was rendered an amendment to the Constitution has been adopted, which makes it competent for freeholders' charters to provide for the constitution, regulation, government, and jurisdiction of police courts (Cal. Const. art. xi. § 84). 2 People v. Gunn, 85 Cal. 238. Under the provision of the California Constitution requiring the submission of a freeholders' charter "to the qualified electors of said city," "and if a majority of such qualified electors voting thereat shall ratify the same," it shall thereupon be submitted to the legislature for approval, the charter is not adopted if it does not receive a majority of all the votes cast at the municipal election, but merely a majority of the votes cast thereon. Santa Rosa v. Bower, 142 Cal. 299. 3 People v. Hoge, 55 Cal. 612. People v. Bagley, 85 Cal. 343; Kansas City v. Marsh Oil Co., 140 Mo. 458, 467. 5 State v. O'Connor, 81 Minn. 79; State v. District Court of St. Louis Co., 90 Minn. 457; In re Cloherty, 2 Wash. 137, 140. See State v. Mo. & K. Tel. Co., 189 Mo. 83, cited infra. |