ers appointed were both executive and legislative officers of the city of Galveston, and that the legislature, in making these officers appointive, went further than the legislature of any State ever attempted to go before. Following the decisions which hold that the legislature cannot deprive a municipality of the right to elect or appoint its own officers, the court held that the right of local self-government in municipalities was an inherent part of the general scheme of the Constitution of Texas, although not expressly recognized otherwise than as after mentioned; that the inhabitants and citizens of the municipality could not be deprived of this right; and that the legislature could not undertake to appoint the permanent officers of the municipality or authorize the governor to appoint them.' The court also construed the constitutional provision that all qualified electors who have resided in a city for six months immediately preceding an election in any city should "have the right to vote for the mayor and all other elective officers" as guaranteeing the right to

ciples of local self-government which have been handed down to us from our fathers. Nor will it be conceded that the right to make laws on the part of the legislature carries with it the right to appoint to office either by themselves or through an agent. They undoubtedly have the right to create offices and prescribe their duties, but here their law-making functions cease, and the filling of the office belongs to the locality."

of an existing condition which would indicate that there was no purpose on the part of those who framed our organic law to destroy a system of municipal government which had always heretofore been recognized. We do not understand that the Constitution grants all power which is not expressly reserved to the legislative body of government. This is reserved to the people. Only the law-making power belongs to the legislature, and this must be in accordance with the Constitution In the later cases of Ex parte Anand with the principles of local self- derson, 46 Tex. Crim. Rep. 372, and government reserved to the people of Ex parte Levine, 46 Tex. Crim. Rep. the State, because the Constitution 364, the Court of Criminal Appeals had says that all political power is inherent before it the validity of the acts of a in the people, not in the legislature, and board of commissioners appointed by the right of local self-government is re- the governor for the city of Corsicana, served to the State. Local self-govern- which under the statute had control ment is not the mere whim and caprice and supervision of the fire, police, saniof the legislative department, nor does tary, and street departments, and which it appertain to any distinctive locality was not subject to the direction of the of the State, but to the whole State, city council. The court adhered to the and as it had aforetime existed in the views expressed in Ex parte Lewis, 45 State. The principle of local self- Tex. Crim. Rep. 1, although the cases government is applicable to every or- appear to have been decided upon other ganized portion of the State, and in the grounds. In Ex parte Tracey (Tex. history and traditions of our Common- Crim. App.), 93 S. W. Rep. 538, the wealth, as well as that of other States, Court of Criminal Appeals held, withmunicipalities always exercised the out departing from its earlier decisions right to select their own local self-gov- in other respects, that a chief of police ernment which remains unimpaired to the State. The legislature is the lawmaking power, and to it alone is referred the authority to make laws; but it has no right, under the guise of its lawmaking authority, to overturn the prin

is a State and not a municipal officer, and that the municipality has no inherent right to control his appointment. It also held that the title and powers of de facto officers of the corporation cannot be collaterally attacked.

the voters to elect the officers of a municipality and not merely as defining the qualifications of the voters. But the Supreme Court of Texas, which has final jurisdiction over all civil appeals, later sustained the validity of the same charter in an action by certain taxpayers to restrain the city from enforcing ordinances of the board of commissioners for the payment of revenues, dues, or taxes. In harmony with the great weight of authority in other jurisdictions, the Supreme Court held that the people of Galveston had not the "inherent right" to select their own municipal officers; that in Galveston, as elsewhere, a municipal corporation can exist only by and through an act of the legislature of the State; that it has no power not granted by charter and can have no officers not provided for by law; that the doctrine of vested rights and powers of local self-government derived from "history and traditions" asserted a higher law than the Constitution, for if, in the absence of a prohibition, the legislature could not enact a law in contravention of "history and traditions," the constitutional convention could not by express provision have authorized it to be done; and that since a municipal corporation can only exist by legislative authority, it can have no officer which is not provided by charter and can exercise no power which is not granted by the legislature. It follows that the creation of such corporations and every provision with reference to their organization is the exercise of the legislative power which inheres in the whole people of the State, but, by the Constitution, is delegated to the legislature; and therefore it is within the power of the legislature to determine what form of government will be most beneficial to the public and to the people of a particular community. The Supreme Court also adopted the view that the provision of the Constitution of Texas that "all qualified electors of the State as herein described who have resided for six months immediately preceding an election within the limits of any city or incorporated town shall have the right to vote for mayor and all other elective officers," was not a guarantee that the mayor and other officers of the municipality should be elective officers, but was merely a regulation of the elective franchise, and that this provision was not violated by the appointment of commissioners for the city by the governor.'

1 Brown v. City of Galveston, 97 Tex. 1. This decision has been cited, followed, and approved in Kettle v. Dallas, 35 Tex. Civ. App. 632, and Callaghan v. Tobin, 40 Tex. Civ. App. 441; 90 S. W. Rep. 328, 332. And the city of Galveston is operating and acting under the charter enacted as above

stated in 1901. In Nolan County v. Beall, 98 Tex. 104, 109, a question relating to the enforcement of the local option laws with reference to the sale of intoxicating liquors came before the Supreme Court, and that court held that as the question before it had reference to the criminal laws of the State it felt

§ 101 (58 a). Home Rule Provision of New York and Wisconsin Constitutions. - In New York a constitutional guarantee protects the right of local self-government only in so far as it involves the election or appointment of local officers. This Constitution declares that all municipal officers whose election or appointment is not provided for by the Constitution shall be elected by the electors of the municipalities or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. This provision of the Constitution only applies to those

town officers, and transact town business, was well established and recognized by a statute, whilst New York was still a colony. The business transacted at the town meeting related to highways, care of the poor, and matters of purely local concern. It was confined to the affairs of a small district, and was clearly separated from public matters of interest to the colony at large. The officers elected, generally by viva voce vote, were supervisors, assessors, collectors, constables, com

itself bound to follow the decisions of the Court of Criminal Appeals on the subject. It also referred to the conflict which had arisen between the Supreme Court and the Court of Criminal Appeals in regard to the provisions of the Galveston charter, and said that, inasmuch as the question before the Supreme Court arose in a strictly civil action, while the question before the Court of Criminal Appeals arose in a strictly criminal proceeding, and there fore the decisions of the respective courts were final and clearly within missioners of highways, and overseers their respective jurisdictions, whilst the conflict was to be regretted, no means of settling the difference in opinion existed or could exist until provision therefor was made in the Constitution.

of the poor. The powers and duties of these officers were regulated by statute, but the right to select them resided in the people of the locality and was stubbornly insisted upon as inviolable. The first Constitution of 1777 In People v. State Board of Tax recognized local self-government as alCommissioners, 174 N. Y. 417, 431, ready existing, and continued and Vann, J., in discussing the history of protected it by providing that "town this constitutional provision, declares clerks, supervisors, assessors, constathat "The principle of home rule or the bles, and collectors, and all officers hereright of local self-government as to the tofore eligible by the people shall allocal affairs existed before we had a ways continue to be so eligible" (§ 29). Constitution." He refers to the cus- The second Constitution of 1821 contoms and liberties which had been tinued the right by the general clause granted to various cities, boroughs, and applicable to county, town, city, and towns prior to Magna Charta, among village offices that "all officers heretowhich was the right to select certain fore elected by the people shall conlocal officers from their own citizens tinue to be elected; and all other offiand with some restrictions to manage cers whose appointment is not protheir own affairs. He pointed out that vided for by this Constitution, and all these customs and liberties were pro- officers whose office may be hereafter tected and guaranteed by Magna created by law shall be elected by the Charta, and the rights thus secured, people, or appointed, as may by law although at times denied and violated be directed (art. iv. § 15). The by the ruling monarch, were never third Constitution of 1846 continued lost, and were brought over by the the principle, and extended the right by colonists. The liberties and customs a provision as follows: "All county of localities reappear on a novel and wider basis in the town meetings of New England and the various colonies including the colony of New York; and the right of the inhabitants of townships and manors to meet at stated times in public town meetings, elect

officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. All city, town, and village

offices existing at the time of its adoption. As to all offices created thereafter, the power of the legislature to provide for or direct the method of appointment is not affected. The provisions of the New York Constitution, when read in the light of contemporaneous history, show that the object of the people in enacting them was to prevent centralization of power in the State, and to continue, preserve, and expand local self-government. This was effected by assign

ing the choice of local officers to the people of the local divisions, and the principle of home rule is preserved by continuing the right of these divisions to select their local officers with the general functions which have always belonged to the office. Unless the office, by whatever name it is known, is protected, the courts have held that the right to choose the officers would be lost, for with his former functions gone he would not be the officer contemplated by the Constitution, even if the name was retained. Unless the office or officer be mentioned eo nomine in the Constitution, the name may be changed or the office abolished, provided the functions, if retained at all, remain in some officer chosen by the locality. Local functions cannot be transferred to a State officer. The legislature has the power to regulate, increase, or diminish the duties of a local officer, but this power is subject to the limitation that no essential or exclusive function belonging to the office can be transferred to an officer appointed by central authority. The office may go, but the function must be exercised locally if exercised at all. While no arbitrary line is drawn to separate the powers of local and State officers, the integrity of the local office is protected with its original and inherent functions unimpaired. What the Constitution prohibits is legislative interference, whether direct or indirect, with the vital, intrinsic, and inseparable functions of the local office.' But the constitutional provision does not prevent the legislature from creating a new district embracing the territory of two or more municipal divisions of the State and appointing or authorizing the executive to appoint State officials to exercise in such district functions formerly belonging to the local officers of the various municipal divisions. But such district must

local offices administered by officers selected by themselves. It was designed to protect and give force and effect to the principle of local self-government which has always been regarded as fundamental in our political institutions, and to be the very essence of every republican form of government. The local government, even in the smallest division of the State, is the preparatory school in which the citizen acquires the rudiments of self-government, and hence these institutions have been justly regarded as the nurseries of civil liberty.'

1 People v. Tax Commissioners, 174 N. Y. 417, 434; People v. Draper, 15 N. Y. 532; People v. Raymond, 37 N. Y. 428; People v. Albertson, 55 N. Y. 50; People v. Keeler, 29 Hun (N. Y.), 175; Astor v. Mayor, &c. of

New York, 62 N. Y. 567; Matter of the Mayor, &c. of New York, 99 N. Y. 569; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170; Koch v. Mayor, &c. of New York, 152 N. Y. 72; People v. Howland, 155 N. Y. 270; People v. Board of Supervisors of Oneida County, 170 N. Y. 105; Matter of Brenner, 170 N. Y. 185; Matter of Allison v. Welde, 172 N. Y. 421.

2 In People v. Draper, 15 N. Y. 532, the statute combined four counties into one police district, invested five police commissioners appointed by the governor, acting as a board with the mayors of two cities in the district, with all the powers belonging to certain local officers of the respective cities. The new board was authorized to appoint and control all the policemen who were to act, in any part of the district, re