§ 140. Constitutional Provisions. The later Constitutions of many of the States contain provisions respecting the creation and powers of municipal corporations. Some of these provisions are qualifications of the manner in which the legislature may exercise its control over municipal affairs, whilst others are prohibitions of legislative action directed sometimes to the legislature, sometimes to the cities, and sometimes embracing both within their operation. Provisions of the former class are usually prohibitions against special legislation for municipal purposes. They permit legislation concerning the particular matters, but require or allow it only by general laws. The prohibitions of special legislation are so numerous that they touch municipal affairs at almost every point. Among the

matters concerning which special legislation is prohibited in different States are the creation of corporations for municipal purposes,' or

Ala. Const., 1901, § 104; Ark. the protection of chartered rights and Const., 1874, art. xii. §3; Cal. Const., powers of municipalities (Ib. art. vii. 1879, art. xi. § 6; Colo. Const., 1876, 11). The Constitution of this State art. xiv. § 13; Idaho Const., 1889, also requires the legislature to "proart. xii. §1; Ill. Const., 1870, art. vide by general laws for the organizaiv. § 22; Iowa Const., 1857, art. iii. tion and classification of municipal $30; Ky. Const., 1899, § 156; Minn. corporations" (Ib. art. viii. § 1). In Const., 1857, art. iv. § 33, as amended Texas, the Constitution prohibits, "exin 1892; Mo. Const., 1875, art. iv. § 53; cept as otherwise provided in this Neb. Const., 1875, art. iii. § 15; N. Dak. Constitution," any local or special law Const., 1889, §§ 69, 130; Pa. Const., "incorporating cities, towns, or vil1874, art. iii. §7; S. Dak. Const., 1895, lages or changing their charters" (Texas art. iii, § 34; Utah Const., 1895, art. v. Const., 1876, art. iii. § 56). It further § 26; Wash. Const., 1889, art. xi. § 10; declares (Ib. art. xi. § 4): "Cities and Wis. Const., 1848, art. iv. § 31; Wyo. towns having a population of 10,000 Const., 1889, art. iii. § 27. This is the inhabitants or less, may be chartered rule in the Territories under the Or- alone by general laws," but "cities ganic Act (Act of Congress, July 30, having more than 10,000 inhabitants 1886, § 1). In Mississippi, it is pro- may have their charters granted or vided that "The legislature shall pass amended by special act of the legislageneral laws, under which local and ture" (Ib. art. xi. § 5). In West Virprivate interests shall be provided for ginia, local or special laws "incorporatand protected, and under which cities ing cities, towns, or villages, or amendand towns may be chartered and their ing the charter of any city, town, or charters amended" (Miss. Const., 1890, village, containing a population of less § 86). In Ohio and Nevada, "the legis- than 2,000, are prohibited (W. Va. lature shall provide for the organization Const., 1872, art. vi. § 39). In some of cities and towns, by general laws" States it is declared that corporations (Ohio Const., 1851, art. xiii. §6; Nev. shall be formed under general laws, Const., 1880, art. viii. § 8). In Virginia, and shall not be created by special the Constitution requires the enactment acts of the legislature, except for of "general laws for the organization and municipal purposes" (Me. Const., 1819, government of cities and towns," and art. iv. part iii. § 4; Md. Const., prohibits special acts in relation thereto 1867, art. iii. § 48; Mich. Const., 1850, unless passed by a two-thirds vote in art. xv. § 1; N. Car. Const., art. viii. the special manner provided for in the $1; Oreg. Const., 1859, art. xi. § 2. Constitution. Cities and towns having In New York, "Corporations may be special charters may retain them, ex- formed under general laws, but shall cept so far as they may be amended or not be created by special act, except repealed (Const., 1902, § 117). The ex- for municipal purposes" (Const., 1895, tension or contraction of the corporate art. viii. §1). But the legislature is limits of cities and towns must be prohibited from passing a private or pursuant to general laws (Ib. § 126). focal bill "incorporating villages" (Ib. In South Carolina, the Constitution de- art. iii. § 18). The provision of the clares that the legislature shall forth- Constitution of that State against the with enact general laws dealing with passage of a private or local bill grantthe matters as to which special legisla- ing to any corporation, association, or tion is prohibited (which includes the individual the right to lay down railincorporation of municipalities), but road tracks has no application or refer"nothing contained in this section ence to a municipality, and a statute shall prohibit the General Assembly authorizing a city to construct a railroad from enacting special provisions in gen- does not come within its provisions. eral laws" (S. Car. Const., 1895, art. iii. Sun Printing & Pub. Co. v. Mayor, &c. § 34). In another place, after declaring of New York, 152 N. Y. 257, affirming townships bodies politic and corporate, 8 N. Y. App. Div. 230. In Florida, the the General Assembly is authorized to Constitution directs that "The legislaprovide a system of township govern- ture shall establish a uniform system ment, "and may make special provi- of county and municipal government, sion for municipal government, and for except in cases where local or special

amending the charter of any city,' or granting corporate powers or privileges; regulating the affairs of cities and other public corporations; creating offices, or prescribing the powers and duties of officers,

Davis v. Rogersville, 107 Tenn. 588; Grainger County v. State (Redistricting Cases), 111 Tenn. 234; Red River Furnace Co. v. Tenn. Central R. Co., 113 Tenn. 697.

1 Ala. Const., 1901, § 104, subdiv. 18. See Little v. State, 137 Ala. 659; Idaho Const., 1889, art. xii. § 1; Ill. Const., 1870, art. iv. § 22; Mo. Const., 1875, art. iv. § 53; Neb. Const., 1875, art. iii. § 15; N. Dak. Const., 1889, § 69; Pa. Const., 1874, art. iii. §7; S. Car. Const., 1895, art. iii. § 34; S. Dak. Const., 1889, art. iii. § 23; Utah Const., 1895, art. vi. § 26; Wis. Const., 1848, art. iv. § 31; Wyo. Const., 1889, art. iii. § 27. For the Territories, see the Organic Act, § 1 (Act of Congress, July 30, 1886).

laws are provided by the legislature that may be inconsistent therewith" (Const., 1885, art. iii. § 24). It also provides that "The legislature shall have power to establish and abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. When any municipality shall be abolished, provision shall be made for the protection of its creditors" (Fla. Const., 1885, art. viii. $8). In Illinois, the prohibition against the formation of municipal corporations by special or local legislation is only directed against "cities, towns, and villages," and a "sanitary district," or "drainage district for sanitary purposes," is not within this prohibition. Wilson v. Board of Trustees, 133 Ill. 443. 2 Wash. Const., 1889, art. ii. § 28, Nor is a drainage district. Owners of subdiv. 6; Ohio Const., 1851, art. Lands v. People, 113 Ill. 296. In xiii. § 1; infra, § 145 of this chapter. Louisiana, the Constitution prohibits This provision has been held to apply local or special laws "creating corpor- to the powers conferred on municipal ations, or amending, renewing, extend- as well as private corporations. Terry ing, or explaining the charters thereof; v. King County, 43 Wash. 61; 86 Pac. provided this shall not apply to munic- Rep. 210. But see Globe Elevator Co. ipal corporations having a population v. Andrew, 144 Fed. Rep. 871; Pell v. of not less than 2,500 inhabitants, or Newark, 40 N. J. L. 71, affirmed 40 to the organization of levee districts N. J. L. 550. "Under the decisions of and parishes" (La. Const., 1898, art. the Supreme Court of Ohio, the wellxlviii). In California, levee districts as established rule appears to be that it is organized under the laws of that State only when a law creates a new corporaare not municipal corporations. They tion or confers additional powers upon are mere governmental agencies having an existing one that it confers corporate certain of the attributes and functions powers within the meaning of § 1 of art. of a corporation, but in strictness not xiii. Atkinson v. Marietta, &c. R. R. corporations at all; consequently they Co., 15 Ohio St. 21; State v. Cincinnati, do not come within the provision of the 20 Ohio St. 18, 26; Walker v. Cincinnati, California Constitution (art. xi. § 6), 21 Ohio St. 14; 8 Am. Rep. 24; State v. that "corporations for municipal pur- Davis, 23 Ohio St. 434, 443, 444; State poses, shall not be created by special v. Covington, 29 Ohio St. 102, 111; laws." People v. Levee Dist. No. 6, 131 Neil v. Board of Trustees, 31 Ohio St. Cal. 30. It has frequently been de- 15, 21; State v. Powers, 38 Ohio St. 54, cided in Tennessee that special legisla- 61; State v. Pugh, 43 Ohio St. 98; tion as to municipal corporations is not State v. Smith, 48 Ohio St. 211, 218; within the inhibition of the Constitution Commissioners v. State, 50 Ohio St that "No corporation shall be created, 653, 659; Cincinnati v. Trustees of or its powers increased or diminished by Hospital, 66 Ohio St. 440, 445, 448; special laws, but the General Assembly State v. Jones, 66 Ohio St. 453, 488, shall provide by general laws for the 489; Rees v. Olmsted, 135 Fed. Rep. organization of all corporations here- 296. after created." State v. Wilson, 12 Lea (Tenn.), 246; Ballantine v. Pulaski, 15 Lea (Tenn.), 633; Williams v. Nashville, 89 Tenn. 487; Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn. 151; Burnett v. Maloney, 97 Tenn. 697;

3 Mo. Const., 1875, art. iv. § 53; Pa. Const., 1874, art. iii. §7; Texas Const., 1876, art. iii. § 56. In a number of States, the enactment of local or special laws regulating "county_or township business" is prohibited. See

in municipalities;1 releasing or extinguishing, in whole or in part, the indebtedness or liability of any corporation or person to any municipal corporation; authorizing the laying out, opening, altering, maintaining, or vacating roads, highways, streets, &c.;3 legalizing the unauthorized or invalid acts of any officer or agent of any county or municipality; appointing local officers or commissions to regulate municipal affairs; providing for the bonding of cities, towns, precincts, school districts, or other municipalities."

5

local laws "regulating the jurisdiction and duties of any class of officers, except municipal officers" (Fla. Const., 1885, art. iii. § 20).

2 Cal. Const., 1879, art. iv. § 25; Idaho Const., 1889, art. iii. § 19; Mont. Const., 1889, art. v. § 26; Nev. Const., 1880, art. iv. § 20; N. Dak. Const., 1889, § 69; Wash. Const., 1889, art. ii. § 28; Wyo. Const., 1889, art. iii. § 27.

Ind. Const., 1851, art. iv. § 22; Nev. Const., 1880, art. iv. § 20; N. J. Const., 1875, art. iv. § 7, subdiv. 11; N. Dak. Const., 1889, § 69; S. Dak. Const., 1889, art. iii. § 23; Wyo. Const., 1889, art. iii. § 27. This prohibition applies to the Territories (Act of Congress, July 30, 1886). In New Jersey, the Constitution declares that, "the legislature shall not pass private, local, or special laws. regulating the internal affairs of towns and counties" (Const., 1875, 3 Ark. Const., 1874, art. xii. § 24; art. iv. § 7, par. 11). This prohibition Cal. Const., 1879, art. iv. § 25; Colo. is sufficiently broad in its terms to Const., 1876, art. v. § 25; Idaho Const. include cities within its operation. The 1889, art. iii. § 19; Indiana Const., 1851, word "town" is used in the wide sense art. iv. § 22; Iowa Const., 1857, art. of embracing the whole range of mu- iii. § 30; Ky. Const., 1889, art. lix.; nicipalities less than counties. Van La. Const., 1898, art. xlviii.; Mich. Riper v. Parsons, 40 N. J. L. 1; s. c. 40 N. J. L. 123; Pell v. Newark, 40 N. J. L. 71, 550; Rutgers v. Brunswick, 42 N. J. L. 51. The uncertainty, confusion, and chaos in which the judicial decisions in New Jersey as to what is a "local or special act regulating the internal affairs" of municipalities, are clearly set forth by Mr. Hubbard in Harvard Law Review, vol. viii. pp. 597-600, June, 1905.

1 Cal. Const., 1879, art. iv. § 25; Idaho Const., 1889, art. iii. § 19; Minn. Const., 1857, art. iv. § 33, as amended in 1902; Mo. Const., 1875, art. iv. § 53; Mont. Const., 1889, art. v. § 26; N. Dak. Const., 1889, § 69; Pa. Const., 1874, art. iii. § 7; Texas Const., 1876, art. iii. § 56; Wyo. Const., 1889, art. iii. § 27. In Illinois, this prohibition only applies to members of boards of supervisors of incorporated towns or cities (Ill. Const., 1870, art. iv. 22). In Nebraska, local or special laws "providing for the election of officers in townships, incorporated towns or cities," are prohibited (Neb. Const., 1875, art. iii. § 15). In Nevada, there is a similar provision, applicable to county and township officers (Nev. Const., 1880, art. iv. § 20). In Florida, the Constitution prohibits special or

Const., 1850, art. iv. § 23; Minn. Const., 1857, art. iv. § 33, as amended in 1892; Miss. Const., 1890, § 90; Mo. Const., 1875, art. iv. § 53; Mont. Const., 1889, art. v. § 26; Neb. Const., 1875, art. iii. § 15; Nev. Const., 1880, art. iv. § 20; N. J. Const., 1875, art iv. § 7, subd. 12; N. Y. Const., 1895, art. iii. § 18; N. Dak. Const., 1889, § 69; Oreg. Const., 1859, art. iv. § 23; Pa. Const., 1874, art. iii. § 7; S. Car. Const., 1895, art. iii. § 34; S. Dak. Const., 1889, art. iii. § 23; Texas Const., 1876, art. iii. § 56; Utah Const., 1895, art. vi. § 26; Wash. Const., 1889, art. ii. § 28; W. Va. Const., 1872, art. vi. § 39; Wis. Const., 1848, art. iv. § 31; Wyo. Const., 1889, art. iii. § 27. In Florida, the prohibition is only against special legislation "vacating roads" (Fla. Const., 1885, art. iii. § 20. A prohibition in similar terms applies to the Territories (Act of Congress, July 30, 1886).

Idaho Const., 1889, art. iii. § 19; Ky. Const., 1899, art. lix.; La. Const., 1898, art. xlviii.; Mo. Const., 1875, art. iv. § 53.

5 N. J. Const., 1875, art. iv. § 7, subd. 11.

Neb. Const., 1875, art. iii. § 15.

§ 141. Policy and Purpose of Prohibition. The evils resulting from the unlimited power of the legislature over municipal corporations and the habitual and constant exercise of this power by special acts were so generally acknowledged that it was strongly felt that some remedy ought to be provided. The remedy devised and most commonly resorted to was provisions embodied in the later Constitutions of many of the States absolutely forbidding or greatly restricting the passage of special acts relating to municipalities and to municipal affairs. The scope and language of these provisions differ somewhat in the various States, but their general purpose and policy are the same, namely, to reduce the evils of legislative control or interference with municipalities and municipal affairs by means of special acts, and to require such power to be exercised, if at all, by general acts. These constitutional provisions are given or referred to in the notes to the last section, and their language must be carefully borne in mind in considering the exact force and effect of the decisions construing these provisions. What is a "general act" and what is a "special act,” what is a “municipal affair" or an “internal affair" of a municipal corporation, as distinguished from a "State" or general affair, might have appeared to the framers of the Constitutions to be questions easy of solution. But if so, the result has proved otherwise, and these questions (with which the present chapter deals) are among the most difficult and perplexing which the courts have had to meet. Their number and variety are almost infinite, and the results in many respects are very unsatisfactory and inharmonious, as the present chapter abundantly shows. They present a veritable judicial labyrinth, with no certain clue to guide the public or the profession. In the new applications of these constitutional provisions constantly arising, the professional adviser is often compelled to confess that he does not know whether a given act is "special" or a given matter is a "municipal affair" or not, and that the questions are of such nicety that they can be settled only by a decision in many cases of the court of last resort in the State. Thirty years' experience with these general constitutional interdicts against local and special legislation have impressed the author with the conviction that they have failed to produce the beneficial results anticipated, and that this has been brought about largely because the prohibitions of special legislation are too broad and sweeping. Special legislation in some form is often necessary, and it should be allowed, but carefully safeguarded, much in the same way or on the same principles as in the present Constitution of New York.

These constitutional provisions are largely the result of dissatis