sors, in nature and form, of the ancient civil divisions of England, - its counties, hundreds, tithings, and towns, which date as far of cities of the metropolitan class, saying: "The right of local self-government is purely a political right, and all political rights, of necessity, have their foundation in human government. For an individual to predicate an inherent right - a right inborn and inbred on a foundation of human origin involves a contradiction of terms. So far as a city is concerned, considered in the character of an artificial being, it is a creature of the legislature. It can have no rights save those bestowed upon it by its creator. As it might have been created lacking some right bestowed upon it, it is in no position to complain should the power that bestowed such right see fit to take it away. In other words, the power to create implies the power to impose upon the creature such limitations as the creator may will, and to modify or even destroy what has been created. The power to create a municipal corporation, which is vested in the legislature, implies the power to create it with such limitations as the legislature may see fit to impose, and to impose such limitations at any stage of its existence." See also State v. Broatch, 68 Neb. 687; State v. Nolan, 71 Neb. 136. hold other powers, and may withdraw any part of that which has been delegated.' Van Cleve v. Passaic Valley Com'rs, 71 N. J. L. 183; s. c. 71 N. J. L. 574. Consequently the court held that the legislature might create a sewerage district which included portions of four counties in which were situated many cities, villages, and townships, and authorize commissioners appointed by the governor to construct an intercepting sewer for the purpose of putting an end to the pollution of the Passaic River, and that such a scheme did not violate the rights of any municipality to govern itself. In Ohio the courts do not seem to have adhered to any fixed principle. In State v. Covington, 29 Ohio St. 102, the court sustained a statute which authorized the governor to appoint a board of police commissioners in cities of the first class, holding in effect that there was no restriction on the power of the legislature to prescribe the manner in which municipal officers should be elected or appointed. See also State v. Baughman, 38 Ohio St. 455. In State v. Smith, 44 Ohio St. 348, an act authorizing the governor to appoint a board of public affairs in cities was attacked as unconstitutional. The conclusion arrived at by the court was that "The entire details of the system [of municipal government] that may be devised, and the public agencies that may be employed for administering it, and whether they shall be elected or appointed, is left by the Constitution to the wisdom of the legislature.' The court referred to the case of People v. Hurlbut, 24 Mich. 44 (infra, § 99), and said that the reasoning of that case was "illusory and without any well-founded distinction in principle.' In State v. Commissioners, 54 Ohio St. 333, a statute atIn New Jersey, in the case of the tempted to authorize the commissionPassaic Valley Sewerage Commission, ers of a county to widen, extend, and the court declared that "It is not, in improve a highway in a prescribed manour opinion, a constitutional right of ner, one-half the expense to be assessed the people to have all matters of local on the land benefited, and the remainder concern entrusted to municipal cor- to be borne by the county, without porations. Within constitutional limits, the request or consent of any of the the people of the State, acting through parties to be assessed. The court held the general legislature, may delegate that the statute was unconstitutional, such portion of political power as saying: "It is simply a usurpation they may deem expedient, may with- of the powers heretofore always allowed New Hampshire. In Gooch v. Exeter, 70 N. H. 413, the court held that a statute creating a board of police commissioners for a town to be appointed by the governor, and authorizing them to appoint, remove, and equip police officers and fix their pay, is not unconstitutional, as taking from the town control of local affairs to which it is entitled. In this State the Constitution authorizes the legislature to "name and settle... or provide by fixed laws for the naming and settling" of all civil officers within the State. Police officers are civil officers within this provision. back as the times of Alfred. When our forefathers came to this country, they brought with them these forms of local organization, to the proper administrative boards Oregon. In David v. Portland Water Committee, 14 Oreg. 98, the court held that while public parks, gas, water, and sewers in towns and cities may ordinarily be classed as private affairs, they often become matters of public interest; and when the legislature determines that there is a public necessity for their use in a certain locality, they cannot be designated as the merely private or corporate affair of the municipality. It therefore held that it was within the power of the legislature to appoint by name a commission composed of citizens of a city with authority to construct or purchase, at the expense of the municipality, a system of water works for the use of the city. Pennsylvania. - In Commonwealth v. Moir, 199 Pa. 534, the court had under consideration the so-called "Ripper Bill," which provided for the removal from office of the mayors of cities of the second class, and the appointment of a recorder in each of the existing cities of that class, who People v. Draper, 15 N. Y. 532, 561, cited in State v. Denny, 118 Ind. 449, 458. On the general subject of local government, see ante, chaps. i. and iii.; also Professor Goodnow's Mu should continue in office for a period of upwards of two years. The statute removed the mayor of these cities by abolishing the offices, but continued them in office temporarily until a recorder should have been appointed by the governor. The court held that, inasmuch as municipal corporations were merely agents of the State invested with governmental functions for reasons of convenience and public policy, the legislature might properly remove the elected mayor of any city and authorize the governor to fill the office by the appointment of another officer, to be known as recorder, who should perform similar although not identical duties. The court said: "Municipal corporations are agents of the State, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined, by the legislature, and subject to change, repeal, or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no State has it been more clearly expressed and more uniformly applied than in Pennsylvania.... Of the objection that the citizens are deprived of an opportunity of electing the chief executive, it is sufficient to say that there is no constitutional right of election in reference to that office. The legislature might make it permanently appointive, and what they could do permanently they may do temporarily. It is conceded that if the act bore date of approval so near the day of election that the electors would have no proper opportunity to prepare for the election, the postponement would be free from objection. But what is a reasonable or proper opportunity is a question for the legislature. That the prolongation of a temporary appointment to a vacancy beyond an election not unduly close at nicipal Home Rule, 1895, which the municipal inquirer or student will read with profit; also Shaw's Municipal Government in Great Britain, 1895. each of which involved the right to govern its own affairs. The Constitutions of the States were adopted at a time when this form of local self-government was uniformly recognized, and this right of local selfgovernment was vested in, exercised, and enjoyed by the people of the municipalities, and remains in them, unless expressly yielded up and granted to one of the departments of the State by the Constitution. The Constitutions of all the States provide in some form that the legislative authority of the State shall be vested in a legislative body, but when the legislature was vested with this authority, which conferred upon it the right to make laws, it was not intended to surrender hand is unusual, and contrary to what citizens are accustomed to regard as their moral and political rights, may be conceded, but that does not make it unconstitutional. Being an exercise of a legal and constitutional right by the legislature, they are answerable for their action only to their constituents." In Philadelphia v. Fox, 64 Pa. 169, which involved the question of the power of the legislature to deprive the city of the control and management of the Girard and other public trusts, and in which it was held that the court might vest the management of these trusts in a commission appointed as prescribed by the statute, the court said, with reference to the power of the legislature over municipal corporations: "The sovereign may continue its corporate existence and yet assume or resume the appointments of all its officers and agents into its own hands, for the power which can create and destroy can modify and change." Similar views were expressed by this court in Darby v. Sharon Hill, 112 Pa. 66, 70. Rhode Island. In Newport v. Horton, 22 R. I. 196, 201, the legislature had passed an act establishing a board of police commissioners for Newport, and conferred the power of appointing the commissioners on the governor. The board was vested with the power of appointing the chief of police. The court held that police officers are appointed to perform a public service, and in appointing them a city exercises one of the functions of government acting for the State, and that the act did not infringe any inherent right of local self-government, the right of the city to control its police force not being reserved by the Constitution of the State. The court discusses the historical origin of towns in Rhode Island, and concedes that they had a self-governing organization before the colony received a charter from the English parliament, and that "the form of government adopted under that charter was a federation of towns rather than a colony." But the subsequent course of events shows that the towns relinquished the absolute control of their own affairs, which they originally possessed, and generally towns were treated as deriving their powers from the State rather than from an independent right of local selfgovernment. The conclusion which the court reaches is that "Towns and cities are recognized in the Constitution, and doubtless they have rights which cannot be infringed. What the full limit and scope of those rights may be cannot be determined in the decision of this case. The court cannot properly go beyond the question before it. We assume that the towns and cities in this State have the same rights which towns and cities have in other States under the prevalent form of State government. Our inquiry, therefore, is whether the establishment of police authorities by the State infringes the rights of self-government." See also Horton v. Newport, 27 R. I. 283; 61 Atl. Rep. 759. Virginia. In Burch v. Hardwicke, 30 Gratt. (Va.) 24, the court held that the chief of police of a city is an officer of the State, and not of the municipality, and therefore is subject to complete legislative control, but in so doing declared that "Cities and towns are mere territorial divisions of the State, endowed with corporate powers to aid in the administration of public affairs. They are instrumentalities of the government acting under delegated powers, subject to the control of the legislature, except so far as may be otherwise expressly provided by the Constitution. to it the right of local self-government and the right of municipalities to choose their own local officers and rulers, nor was it intended to delegate such power to the legislature. Accordingly, wherever such right of local self-government has been recognized, the right of the legislature to appoint, or to authorize the executive of the State to appoint, a municipal officer is denied. Only the people of the municipality can exercise that power, and the powers and duties of the legislature end with the enactment of laws prescribing the manner of selection and the duties of the officers. These views have been adopted by the courts of Michigan, Indiana, and Kentucky.1 1 Michigan. - In People v. Hurlbut, 24 Mich. 44, ante, § 97, it was held that the legislature had no power to appoint the members of a board of public works of the city of Detroit as permanent officers for the full term, or the specific portions of such terms provided by the act creating the board for the respective members thereof. The Constitution of Michigan contains a provision that "Judicial officers of cities and villages shall be elected; and all other officers shall be elected or appointed at such time and in such manner as the legislature may direct." In applying this provision the court considered the question whether municipalities had the right of local self-government beyond legislative control, and being of the opinion that they had, held that officers must be elected by the people of the city, or appointed by the local authorities so elected by the people. As this is apparently the first case which recognizes an inherent right of selfgovernment beyond legislative control, the views expressed by the court have a peculiar and special interest. Mr. Chief Justice Campbell said: "This is no mere political theory, but appears in the Constitution as the foundation of all our polity. There is no middle ground. A city has no constitutional safeguards for its people, or it has the right to have all its officers appointed at home. Unless this power is exclusive, the State may manage all city affairs by its own functionaries. The only reasonable meaning of the constitutional clause in question is that, when the legislature has designated the time and manner of appointment or election, the local authority shall fill the offices as so ordained." Mr. Justice Cooley said: "The State may mould local institutions according to its views of policy or expediency; but local govern ment is matter of absolute right, and the State cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the State not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs or no control at all." The courts of Michigan have steadily adhered to the principles adopted in this case. See AttorneyGeneral v. Lathrop, 24 Mich. 235; People v. Springwells, 25 Mich. 153; People v. Detroit Common Council, 28 Mich. 228; People v. Detroit Common Council, 28 Mich. 108, 228; Park Commissioners v. Detroit, 29 Mich. 343; Allor v. Wayne County Auditors, 43 Mich. 76; Robertson v. Baxter, 57 Mich. 127; Attorney-General v. Detroit Common Council, 58 Mich. 213; Wilcox v. Paddock, 65 Mich. 23; Board of Metropolitan Police v. Auditors of Wayne County, 68 Mich. 576; AttorneyGeneral v. Trombly, 89 Mich. 50; Davock v. Moore, 105 Mich. 126, 128; Moreland v. Miller, 126 Mich. 381. See ante, § 97; Freeholders' Charters, ante, § 63. But when an officer in a city exists solely by the legislative will, the legislature has the power to abolish the office, and confer its functions on another officer. Attorney-General v. Cogshall, 107 Mich. 181. Indiana. In State v. Denny, 118 Ind. 382, and State v. Denny, 118 Ind. 449, the statute under consideration assumed to give to a board of public works chosen by the legislature from residents of the city the exclusive power and control over the construction, supervision, cleaning, repairing, improving and lighting of streets, &c., in cities of a certain population, and The conflict § 100. Right of Local Self-Government; Texas. which has arisen between the courts on the subject of municipal home rule is well illustrated in the decisions of the courts of last resort of the State of Texas. By the charter of Galveston, enacted in 1901, provision was made for the election and appointment of five commissioners to whom all powers of the municipality were entrusted, including the powers to pass ordinances, by-laws, &c. Three of these commissioners were appointed by the governor of the State, one of whom was designated as president of the board of commissioners, and the commissioners court of Galveston County was directed to order an election of two other commissioners, who, together with the three commissioners appointed by the governor, should constitute the board of commissioners of the city of Galveston. The Court of Criminal Appeals of Texas, on writ of habeas corpus, issued on the application of a person who had been fined for a violation of a sanitary ordinance adopted by the board of commissioners, held that this statute was unconstitutional. The court said that the commission Kentucky. In Lexington v. Thompson, 113 Ky. 540, it was held that the fixing of the compensation of the officers and members of a city fire department is not governmental in its nature, but is a matter affecting the city in its private or corporate capacity, and that a statute attempting to fix such compensation is unconstitutional as violating the city's right to control its private affairs. See ante, § 97 and notes. the court held that it denied the right ner of selection and the duties of the of local self-government to these cities officers." These cases were affirmed in and was unconstitutional. In Evans- State v. Fox, 158 Ind. 126, holding to ville v. State, 118 Ind. 382, 426, a stat- be unconstitutional an act placing the ute creating a metropolitan police and management of police and fire departfire board in certain cities, such board ments of a municipal corporation of being elected by the legislature, was a certain class of municipalities under held invalid for the same reason. In the control of boards appointed by the State v. Denny, 118 Ind. 449, the court governor of the State. said: "As we interpret the theory of our State government, this right of local self-government, vested in, exercised and enjoyed by, the people of the municipalities of the State at the time of the adoption of the Constitution yet remains in them, unless expressly yielded up and granted to one of the branches of the State government by the Constitution. And in the decision of the question presented in this case, it is only necessary to determine whether or not that power is granted to the legislative branch of the government, as it is only it which attempted to deprive the people of cities of the right to choose their own officers and administer their local affairs." It also said: "The conclusion we unhesitatingly reach is, that the right of local self-government in towns and cities of this State is vested in the people of the respective municipalities, and that the General Assembly has no right to appoint the officers to manage and administer municipal affairs; that the right of the General Assembly ends with the enactment of laws prescribing the man Ex parte Lewis, 45 Tex. Crim. Rep. 1. Henderson, J., who delivered the opinion of the Court of Appeals, summed up its views as follows: "The fact that a system of municipal government was long in vogue prior to the enactment of the Constitution, and that under this system, from time immemorial, local self-government was recognized, and the power of the suffragans in cities to elect their own municipal officers was conceded, and that nowhere and at no time had the power ever been claimed on the part of the legislature to interfere by authorizing the governor to appoint local municipal officers, must afford strong evidence |