Local Government Autonomy 

Needs for State Constitutional 

Statutory, and Judicial Clarification 

. I. 

g: .: 

- -. 

U.S. Advisory Commission 

on Intergovernmental Relations 

A-1 27 

October 1993 


Advisory Commission on Intergovernmental Relations 

800 K Street, NW 

Suite 450, South Building 

Washington, DC 20575 

Phone: (202) 653-5640 

FM: (202) 653-5429 

U.S. Advisory Commission on Intergovernmental Relations 
EXECUTIVE SUMMARY 

Local government in the United States has a rich history. Cities, counties, towns, townships, boroughs, villages, school districts, and a host of special purpose 

districts, authorities, and commissions make up the 86,743 

units of local government counted in the 1992 Census of 

Governments. These local governments have many different forms and organizational structures. Variations in the 

numbers and forms of local government arise from each 

state’s unique political culture. 

Local self-government has been institutionalized in 

thousands of compacts, charters, special acts, statutes, 

constitutional provisions, resolutions, ordinances, administrative rulings, and court decisions. Among these enactments, state constitutional provisions are singled out for 

special attention in this report. 

State constitutional provisions that speak directly to 

the allocation of authoritybetween state and local government embody a judgment about the preferred allocation 

of power within the state. These provisions have been 

created, revised, and refined over time as a popular political response to empirical conditions. As such, they are the 

cornerstones on which any sound theory of local government autonomy can be built. 

The Commission’s findings on the relationship of the 

states and local government autonomy are as follows: 

Home rule for municipal and county governments is 

now available in most states. By state constitutional and/ 

or general law provisions, 48 states grant home rule authority to municipalities and 37 states grant such powers to 

counties. 

Wo legal concepts of local government have contended for ascendancy in the American federal system: home 

rule and creatures of the state. The home rule concept of 

granting greater discretionary authority to local governments has been gaining ground on the creatures-of-thestate concept of strict limits on local discretionary authority. Most states have adopted a system of devolved powers 

for local governments within which they can act freely. 

Local government autonomy consists of degrees of 

discretionary authority separately established for cities 

and counties in four basic areas: (1) structure-determining their form of government and internal organization; 

(2) function-choosing the functions they perfom; (3) fiscal-raising revenue, borrowing, and spending; and (4) 

personnel-fixing the numbers, types, and employment 

conditions of their employees. 

The most common form of home rule grants initiative 

to local governments. Local governments, however, are 

not immune from constitutional and/or statutory limits on 

these grants of initiative. State restrictions do not present 

local government immunity in strongly positive terms, allowing the courts to rule in favor of the state more often 

than not. 

Home rule is jeopardized if the state legislature is 

free to impose unfunded mandates on local governments. 

Sometimes, these state mandates are the result of federal 

mandates. States have not always relaxed the restrictions 

on the fiscal autonomy of local governments or provided 

them with additional resources to cope with mandates. 

This double burden places financial pressures on local governments and reduces their ability to make choices about local priorities-effectively reducing local autonomy. 

As home rule has become a common feature of state 

constitutions and general state law, the relationship between the states and their local governments has become 

more complicated. Increasingly, state courts are serving as 

arbiters of state-local relations. Courts have begun to recognize local governments as “juridical persons” able to 

sue their parent state government. In addition, courts 

have played a major role in defining the constitutional 

framework of interlocal cooperation. 

There is no single best model of constitutional lane 

guage that states can apply to clarify the extent and limits 

of local government autonomy. Different state courts can, 

and often do, interpret identical constitutional language 

differently. A state’s civic culture, legislative traditions, 

and judicial temperament all affect such interpretations. 

Local governments in some states prefer a statutory rather than constitutional approach to the definition of local 

government autonomy. 

Based on these findings, the Commission recommends the following: 

(1) That the states increase and clarifi local home rule 

U.S. Advisory Commission on intergovernmental Relations iii 
iv 

by adopting constitutional andlor statutory provisionsgranting broadpowers of structural, functional, 

fiscal, and personnel authority to local governments 

and authorizing joint exercise of author@. 

(2) That the states review their constitutional provisions 

andlor statutes governing the powers of localgovernments and consider amending them as appropriate to 

clarifV the went of local power, the degree of immunity from state statutes, liberal rules of construction 

to be followed by rhe courts in interpreting consfitutional or statutory provisions in favor of localgovernments, the status of local governments as juridical 

persons, and the extent to which autonomy and discretion are to be accorded to different types of local 

governments. 

(3) That the statewide local government organizations 

and their national counterparts cooperate to provide 

legal support to advocating local assertion of initiativepowers and immunity from the reach of stategovernment. 

(4) That state and federal courts reconsider local government as entailing citizen rights of local selfgovernment, not merely as creatures of the states. 

U.S. Advisory Commission on Intergovernmental Relations 
PREFACE 

The importance of local self-government in the 

United States, and its relationship to state governments 

through constitutional and statutory provisions, needs 

reexamination. Agreement on the principles, purposes, 

and roles of local governments is not universal. This lack 

of consensus is most apparent in the pronouncements of 

state and federal courts. 

There are two competing legal concepts of local government in the American federal system, which can be 

summed up by Dillon’s Rule (“creatures of the state”) and 

the Cooley Doctrine (“home rule”). A survey of recent court 

decisions indicates that many state constitutional and statutory provisions may not contain the degree of local government legal autonomy desired by home rule proponents. 

In this report, the Commission recommends that local 

self-government requires clarification of state constitutional 

and statutory formulations of home rule to refocus the debate over how to balance state control and local autonomy. 

The Commission also reviews the historical underpinnings of the American tradition of local self-government. 

This historical dimension provides a basis for rethinking the 

allocation of authority between local governments and the 

states in state constitutions, statutes, and court decisions. 

The development of American local self-government 

is inextricably linked to an expansive concept of citizenship. Local government is a key institutional mechanism 

for securing citizen participation in designing the instrumentalities for making public policy decisions. State constitutions and statutes reveal that citizenship encompasses 

empowering local citizens to create structures of governance to define and solve common problems. Each state 

must clarify its state-local government relationship. If 

states enact unfunded mandates and regulatory restrictions on local governments, they impose a serious restraint on the ability of those governments to exercise 

even a modicum of autonomy. 

The historical relationship between states and local governments developed in the twentieth century into a complex 

web of shared responsibilities. The courts have played an 

ever larger role in interpreting the limits of the exercise of 

local powers and state legislative powers. Local governments are being recognized more and more as “juridical 

persons” able to sue the state. The Commission recommends that the organizations representing local governments coordinate resources to provide effective legal 

support to local governments in meritorious suits when their 

initiative and immunity are threatened by state action. 

The Commission reiterates its support for well-defined 

powers of local autonomy. The long and thriving tradition 

of local government can encourage and strengthen local autonomy. The clarification of home ruleby the states can help 

restore the state-local balance in the system. 

U.S. Advisory Commission on intergovernmental Relations V 
vi U.S. Advisory Commission on Intergovernmental Relations 
ACKNOWLEDGMENTS 

Michael E. Libonati, Laura H. Camel1 Professor of 

Law at Temple University School of Law, was the principal 

investigator and author of this report. 

A thinkers’ session was held in 1990 to establish the 

scope of the project. An initial critics’ session was held in 

August 1991 to review a draft report, and a final review 

took place in March 1993. Many scholars and experts in 

the field of local government gave generously of their time 

and effort to contribute to this report. We acknowledge them 

with gratitude. The following took part in thinkers’ sessions 

or critics’ sessions, or both, or provided written or telephone 

comments, or in other ways provided assistance: 

Federal Government: Earl Armbrust, Congressional 

Budget Office; Andrea Hillyer, U.S. Department of Justice; David Kellerman, U.S. Department of Commerce, 

Bureau of the Census; Stephen McMillan, Office of Representative Craig Thomas (R-WY); Robert W. Rafuse, Jr., 

U.S. Department of the Treasury; and James Roberts, 

U.S. Department of Education. 

State and Local Governments: Enid Beaumont, Academy of State and Local Government; Benjamin Brown, National Institute of Municipal Law Officers; Richard 

Hartman, National Association of Regional Councils; 

Louise Jacobs, Council of State Governments; Christine 

Milliken, National Association of Attorneys General; 

Chris Nolan, Federal Funds Information for States; Brian 

Roherty, National Association of State Budget Officers; 

David Russell, Connecticut Advisory Commission on Intergovernmental Relations; Hirst Sutton, Virginia Advisory Commission on Intergovernmental Relations; and 

Alice Tetelman, Council of Governors’ Policy Advisors. 

Academics: Gerald Benjamin, Rockefeller Institute of 

Government, State University of New York, Albany; Richard Briffault, Columbia University Law School; David 

Gelfand, Tulane Law School; Otto Hetzel, Wayne State 

University School of Law; Melvin Hill, Institute of Government, University of Georgia; James Kee, George 

Washington University; Frank J. Mauro, Rockefeller Institute of Government, State University of New York, 

Albany; Mavis Mann Reeves, University of Maryland; Stephen L. Schechter, Russell Sage College; Carl w. Stenberg, 111, Center for Public Service, University of Virginia; 

Robert W. Thomas, University of Houston; Joan Williams, 

American University School of Law; and Joseph F. Zimmerman, State University of New York, Albany. 

Private Consultants and Others: Wayne Anderson; William N. Cassella, Jr., Institute of Public Administration; 

William G. Colman; John Peterson, Government Finance 

Research Center; and John Shannon, Urban Institute. 

For the Commission, Bruce D. McDowell, Director 

of Government Policy Research, supervised the project. 

Sharon Lawrence, Senior Analyst, and Seth B. Benjamin, 

Senior Analyst, provided assistance in the preparation of 

the material for the Commission and publication of the report. The report was edited by Joan Casey. Secretarial assistance was supplied by Suzanne Spence. 

Professor Libonati acknowledges with thanks the 

study leave granted by Temple University and Temple Law 

School, during which he completed most of the research 

for this study. 

Responsibility for the contents of this report and any 

errors lie solely with the Commission and its staff. 

John Kincaid 

Executive Director 

U.S. Advisory Commission on Intergovernmental Relations vii 
... Vlll U.S. Advisory Commission on Intergovernmental Relations 
CONTENTS 

Findings and Recommendations .............................................................. Findings ........................................................................................ Recommendations ................................................................................ 

while Preserving State Responsibilities ...................................................... Recommendation 1 -Reaffirming the Need for Local Discretionary Authority 

Recommendation 2-Strengthening Local Immunity from State Preemptions and Mandates ............. Recommendation 3-Enhancing the Ability of Local Governments to Challenge 

State Governments in Suits over Powers .................................................... Recommendation 4-Recognizing an Alternative Theory of Local Government Autonomy ................ 

Part I Local Government Legal Autonomy: The Issue of Constitutional Choice ................... 

Chapter I Defining Local Government Legal Autonomy ................................................. Autonomy as Determined by Initiative and Immunity ................................................. Powers of Both Initiative and Immunity ......................................................... Power of Initiative but Not Immunity ........................................................... Power of Immunity but Not Initiative ........................................................... Neither Power of Initiative nor Immunity ....................................................... Shortcomings of the Immunity and Initiative Concepts ............................................ Structural, Functional. Fiscal. and Personnel Autonomy .............................................. 

Chapter 2 Analyzing Local Government Autonomy ............................................ 

A Closer Look at the Definition of Autonomy ....................................................... Structural Autonomy ......................................................................... Functional Autonomy ......................................................................... Fiscal Autonomy ............................................................................. Personnel Autonomy .......................................................................... Policymaking Concerns ........................................................................... Restrictions on the State ...................................................................... 

The Role of Citizen Choice .................................................................... Eligibility for Local Autonomy ................................................................. Intergovernmental Cooperation ................................................................ The Role of the Judiciary ...................................................................... The Legal Content of Local Autonomy ............................................................. Clarity of the Text ............................................................................ Principles of Construction ..................................................................... Judicial Perspectives about Local Autonomy ..................................................... 

The Degree of Local Government Autonomy .................................................... 

Citizen Demands to Expand, Constrict, or Clarify Home Rule Provisions ........................... Official and Institutional Demands to Expand, Constrict, or Clarify Home Rule Provisions ............ Conclusion ...................................................................................... 

Purf II The Historical Framework Toward a Legal Theory of Local Government Autonomy ....... 

Chapter 3 The Historical Legacy ..................................................................... 

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U.S. Advisory Commission on Intergovernmental Relations ix 
Background ..................................................................................... 25 

Ancient and Medieval Local Government ........................................................... 25 

Classical Roots: Greece and Rome ............................................................. 25 

The Civic Republic: Italian Medieval Cities ...................................................... 26 

The English Antecedents of American Local Government (1066-1688) ................................. 27 

Settlements in America and their Local Governments ................................................ 27 

The Relationship of Colonies to England ........................................................ 27 

The Relationship between Colony and Locality .................................................. 28 

Local Self-Government in Colonial America .................................................... 29 

The Constitutional Dimension to Colonial Local Government ......................................... 30 

Local Autonomy in the First State Constitutions ................................................. 30 

Organizing State and Local Government Relations: From the Northwest Ordinance to Dillon's Rule 

(1789-1868) .................................................................................. 31 

Northwest Ordinance ......................................................................... 31 

Dillon's Rule ................................................................................ 31 

33 

33 

Judicial Restraints on Home Rule .............................................................. 33 

An Inherent Right to Local Self-Government? The Cooley Doctrine ............................... 34 

State Constitutions and Restrictions on State Supremacy .......................................... 34 

Conclusion ...................................................................................... 35 

An Increasing Role for the Judiciary ............................................................ Judicial Constraints on State Interference with Local Autonomy ................................... 

Chapter 4 The Developing Concept of Home Rule in 'hentieth Century America ................. 41 

The Missouri Experiment ......................................................................... 41 

The Early Twentieth Century and Home Rule ....................................................... 42 

The City Republic ............................................................................ 42 

A Local Bill of Rights ......................................................................... 43 

The Devolution-of-Powers Approach ........................................................... 44 

45 

New Jersey and Home Rule ................................................................... 45 

Local or Special Legislation ................................................................... 45 

Interlocal Collaboration ....................................................................... 46 

Illinois and the Devolution-of-Powers Approach ................................................. 46 

Greater FiscaLAutonomy ...................................................................... 47 

Conclusion ...................................................................................... 47 

Twentieth Century Constitutional Developments in Local Autonomy ................................... 

Chapter 5 Recent Trends in Judicial Decisions Affecting Local Autonomy: 1978-1992 .............. 51 

General Issues ................................................................................... 51 

Capacity to Sue .............................................................................. 51 

Constitutionality of Local or Special Legislation ................................................. 51 

Ripper Clauses ............................................................................... 52 

Interlocal Agreements-Service Transfers ....................................................... 52 

52 

Delegations of Power ......................................................................... 52 

HomeRule .................................................................................. 53 

Autonomy of Function ............................................................................ 53 

Fiscal Autonomy ................................................................................. 55 

Tax Indices .................................................................................. 55 

Local Voter Choice ........................................................................... 55 

Restrictions on Mandates ...................................................................... 55 

Home Rule and Tax Capacity .................................................................. 56 

Personnel Autonomy ............................................................................. 57 

Autonomy as Immunity ....................................................................... 57 

Autonomy as Initiative ........................................................................ 58 

Conclusion ...................................................................................... 58 

Autonomy of Governmental Structure .............................................................. 

X U.S. Advisory Commission on Intergovernmental Relations 
FINDINGS AND RECOMMENDATIONS 

The States and local Government Autonomy 

1. Home rule for municipal and county governments is 

now available in most states. 

Forty-eight states grant home rule authority to municipalities and 37 states grant such powers to counties.These 

grants of authority are provided by the state constitutions 

and/or by general law. 

For municipalities, 37 states grant home rule by constitutional provision and 34 by general law (24 states have 

both types of provisions, 13 use the constitution only, and 

10 use general law only). 

For counties, 23 states grant home rule authority by 

constitutional provision and 25 by general law (12 states 

have both types of provisions, 11 use the constitution only, 

and 13 use general law only). 

Between 1978 and 1992, five states granted home rule 

authority to municipalities. On the county side, nine more 

states provide home rule authority now than in 1978. 

2. Wo legal concepts of local government have contended for ascendancy in the American federal system: 

home rule and creatures of the state. The home rule 

concept (granting greater discretionary authority to 

local governments) has been gaining ground on the 

creatures-of-the-state concept of strict limits on local 

discretionary authority. 

The idea of local governments as creatures of the 

state is embodied in Dillon’s Rule, which holds that the 

political subdivisions of a state owe their existence to 

grants of power from the state. Therefore, local governments possess no inherent sovereignty. Their powers are 

construed strictly to be no more than what is expressly permitted by state statute. No room can be made for discretionary authority or even incidental powers. 

The home rule concept was initially articulated in the 

Cooley doctrine, holding that local government is a matter 

of absolute right, which cannot be taken away by the state. 

Few states have followed this rule, however. Instead, most 

states adopted what became known as the Fordham Rule, 

which sets out an area of devolved powers for local governments within which they can act freely. This approach 

provides home rule localities with a liberal construction of 

their powers, limiting state court imposition of a doctrine 

of implied preemption. 

3. Local government autonomy consists of degrees of 

discretionary authority separately established for 

cities and counties in four basic areas: (1) structuredetermining their form of government and internal organization; (2) function-choosing the functions they 

perform; (3) fiscal-raising revenue, borrowing, and 

spending; and (4) personnel-fuing the numbers, types, 

and employment conditions of their employees. 

In most states, the amount of discretionary authority 

differs for cities and counties and for the four different 

types of power. Grants of structural and functional authority frequently exceed grants of financial and personnel powers. These imbalances can create difficulties for 

local governments. 

4. Home rule can (1) empower local governments to take 

initiative, (2) confer immunity on local governments 

from the reach of state legislation, and (3) instruct the 

state courts to interpret grants of local authority liberally in favor of local discretion. States have focused 

most of their authorizations on initiative; few state 

grants of home rule authority include or adequately 

address immunity and liberal construction. 

The most common form of home rule grants initiative 

to local governments, subject to constitutional and/or statutory limits. Such limitations are frequently substantial. Immunity from such limitations often are weak or absent. Also, 

instructions to the courts to interpret liberally in favor of local governments are frequently absent. Without these provisions, the courts generally rule in favor of the state. 

5. Home rule is jeopardized if the state legislature is free 

to impose unfunded mandates on local governments. 

U.S. Advisory Commission on Intergovernmental Relations 1 
State legislatures have imposed an increasing number of 

mandates and regulatory restrictions on local governments 

as the result of statewide policies. Sometimes, these state 

mandates are the result of federal mandates. At the same 

time, states have not always relaxed the restrictions on the 

fiscal autonomy of local governments or provided them with 

additional resources to cope with mandates. This double 

burden places severe financial pressures on local governments and reduces their ability to make choices about local 

priorities-effectively reducing local autonomy. 

6. As home rule has become a common feature of state 

constitutions and general state law, the relationship 

between the states and their local governments has become more complicated. Increasingly, therefore, state 

courts are serving as arbiters of state-local relations. 

During the colonial era, the royal executive granted 

local government charters, following the English tradition. After the Revolution, state legislatures ordinarily exercised this responsibility by special acts that provided 

local governments with individualized powers-always 

subject to legislative revision. By the 1870s, however, misuse of the legislative power to create local governments 

led to reform movements seeking general laws for local 

government authority and constitutional recognition of 

home rule outside the scope of state legislative discretion. 

As a result, state-local relations have become more 

complex. Today, in any one state, the scope of home rule 

or local autonomy is often difficult to discern. Moreover, 

constitutional and statutory protections of local autonomy 

do not eliminate legislative authority. State courts, therefore, have taken on a key role in interpreting the limits of 

the exercise of local powers and state legislative powers. 

In several states, the courts have begun to recognize local governments as “juridical persons” able to sue their parent state government, thus conferring (or at least asserting) 

state constitutional claims against the state sovereign. Also, 

some state courts have scrutinized more closely legislation 

intended to affect specific local governments and have heard 

challenges to these acts as special or local laws. In addition, 

courts have played a major role in defining the constitutional 

framework of interloml cooperation. In each area of local 

discretionary authority-structural, functional, fiscal, and 

personnel-state courts have made major contributions to 

the definition of state-local relations. 

Nevertheless, state courts across the nation take very 

different approaches to home rule. Even the same state 

court may issue confusing dicta on the subject of statelocal relations. Thus, although there is a discernible trend 

toward a greater recognition for local government autonomy, the guidance for local governments is far from clear. 

7. There is no single best model of constitutional language that states can apply to clarify the extent and 

limits of local government autonomy. 

Different state courts can, and often do, interpret identical constitutional language differently. A state’s civic culture, legislative traditions, and judicial temperament aU 

affect interpretations of constitutional language. Thus, constitutional language with respect to local government must 

be adapted to the civic culture and traditions of each state. 

Indeed, because of prevailing traditions, local governments 

in some states prefer a statutory rather than constitutional 

approach to the definition of local government autonomy. 

Recommendation 7 

Reaffirming the Need 

for Local Discretionary Authority 

While Preserving State Responsibilities 

The Commission finds that its previous recommendations encouraging states to formalize a thriving system of 

local self-government are as important as ever. To be effective and accountable, local governments need the flexibility and autonomy to undertake the responsibilities 

allocated to them and the responsibilities chosen for them 

by their citizens. 

The Commission rea-m, therefore, its previous recommendations to the states to increme und cluri3 local home rule by 

adopting constitutional undlor statutoiy provisions granting 

broad powers of structural, Jicnctional, fical, und personnel authority to local governments and to authorize them to erercise 

their authority jointly with other govemments as they deem best. 

Recornmendation 2 

Strengthening local Immunity 

from State Preemptions and Mandates 

The Commission finds that the provisions for local 

home rule and discretionary authority in many states are 

being eroded by increases in regulatory and statutory control of local government functioning through enactment 

of federal and state mandates and preemption of local 

decisionmaking. The state courts have increasingly asserted their power to adjudicate state-local relations, supplying their own solutions in the absence of clear constitutional 

and/or statutory direction. Thus, ambiguity in state-local 

relations places substantial political decisionmaking authority in the hands of the judiciary. 

The Commission recommends, therefore, that the states 

review the local government articles in their constitutions andl 

or statutes governing the powers of local governments, and 

2 U.S. Advisory Commission on Intergovernmental Relations 
consider amending them as appropriate to clarifi: state’s legal resources in specific cases. Such an inconsistent 

The extent of local power intended to initiate structural, functional, fiscal, and personnel matters without prior permission of the state, and to ensure a 

proper balance among these powers; 

The degree of immunityfrom the reach of state statutes intended, including limitations on the right of the 

state to preempt local authority and to mandate 

functions without giving local governments the fiscal 

resources to cany out required functions; 

Liberal rules of construction to be followed by the 

courts in interpretingthese constitutional or statutory 

provisions in favor of local governments; 

(d) The status of local governments as juridical persons 

having the same capacity and rights to assert legal 

claims against the state as natural persons and private corporations; and 

(e) The extent to which autonomy and discretion are to 

be accorded to different types of local governments, 

including counties, municipalities, townships, school 

districts, and special districts. 

Recommendation 3 

Enhancing the Ability of Local Governments 

to Challenge State Governments 

in Suits over Powers 

The Commission finds that, in virtually all states, local 

government interests are represented in the state capital by 

local government associations or leagues. Their effectiveness in challenging state legislation that affects local governments adversely varies across states. Some statewide local 

government associations possess strong in-house counsel 

that monitors state legislative activities actively and represents local interests quickly and thoroughly in court. Others, 

however, rely on private ad hoc expert counsel, leaving the 

results very much to chance. Moreover, individual local governments rarely have the time and resources to match the 

arrangement for professional counsel is not conducive to 

sustained local government advocacy. 

The Commission recommends, therefore, that the statewide local government organizations and their national counterparts cooperate to provide continuous, well-financed, and 

well-staffed legal support devoted to advocating the local government assertion of local initiative powers and local immunity from the reach of state government. 

Recommendation 4 

Recognizing an Alternative Theory 

of local Government Autonomy 

Although the United States Supreme Court has sanctioned the view that local governments are essentially the 

legal creatures of the states, the Commission finds that 

there is another, equally persuasive, theory of local government status in America. Best articulated by Judge 

Thomas Cooley of Michigan in the late nineteenth century, this theory holds that American local government has 

an inherent right to self-rule, that is, a sovereignty of its 

own. This concept was embodied in some early state constitutions, such as Massachusetts, that gave local governments representation in the state legislature. 

Nevertheless, such a view has not been favored by the 

federal courts and many state courts. Given the historical 

strength of this alternative view of American local government, the Commission finds that the courts are distorting a 

viirant chapter in the American history of local government. 

77te Commission recommends that the courts begin to look 

more serious!^ again at an alternative view of local government in 

America, which stresses the primacy of local government sovereignty Such a view should be evaluated as the bmi for making 

decisions about the powers of local governments, thus challenging 

the auihority of ihe creatures-of-the-state theov confirmed by the 

US. Supreme Court. 

U.S. Advisory Commission on Intergovernmental Relations 3 
4 U.S. Advisory Commission on Intergovernmental Relations 
Part I 

LOCAL GOVERNMENT LEGAL AUTONOMY: 

THE ISSUE OF CONSTITUTIONAL CHOICE 

U.S. Advisory Commission on Intergovernmental Relations 5 
6 US. Advisory Commission on Intergovernmental Relations 
Chapter 7 

DEFINING LOCAL GOVERNMENT 

LEGAL AUTONOMY 

Local government in the United States has a rich 

history of variety, both in type and form. Cities, counties, 

towns, townships, boroughs, villages, school districts, and a 

host of special purpose districts, authorities, and commissions make up the 86,743 distinct units of local government counted in the 1992 Census of Governments. These 

local units of government have many different forms and 

organizational structures. In New Jersey, for instance, local governments can adopt one of 12 different organizational forms of government. Variations in the numbers 

and forms of local government arise from the unique political cultures and forces that created and shaped local 

self-government in each state. 

Experience with local government, which is shared by all 

Americans, has rarely given rise to sustained and systematic 

reflection about the relationship between local government 

and the state.’ Instead, the desire for local self-government 

has been institutionalized in thousands of compacts, charters, special acts, statutes, constitutional provisions, resolutions, ordinances, administrative rulings, and court decisions 

since the earliest dates of settlement of this country.2Among 

these enactments, state constitutional provisions are singled 

out for special attention in this report. 

Analysis of state constitutional provisions can further 

our understanding of the complex relationships between 

state government and its political subdivisions in the 

American political system. Today, local government autonomy is understood to be an important part of this system, and no account of American federalism that omits 

the dynamic interplay of local governments with the federal and state governments does justice either to historical 

experience or contemporary practice. 

Indeed, state constitutional provisions that speak directly to the allocation of authority between state and local government embody a judgment about the preferred 

allocation of power within the state in the most authoritative way. These provisions, of course, have been created, 

revised, and refined through time, as a popular political 

response to empirical conditions. As such, then, they are 

the cornerstones on which any sound theory of local government autonomy can be built. 

This report begins by examining the legal definition of 

local government autonomy. One of the most useful classifications of local self-government is Gordon Clark’s 

principles of autonomy. These principles distinguish between a local government’s power of initiative and itspower of imm~nity.~ By initiative, Clark means the power of 

local government to act in a “purposeful goal-oriented” 

fashion, without the need for a specific grant of power.4 By 

immunity, he means “the power of localities to act without 

fear of the oversight authority of higher tiersof the ~tate.”~ 

There are four variations in the exercise of these two 

components to autonomy: 

(1) Powers of both initiative and immunity; 

(2) Power of initiative but not immunity; 

(3) Power of immunity but not initiative; and 

(4) Neither power of initiative nor immunity? 

Powers of Both Initiative and Immunity 

Initiative and immunity powers as expressed in state 

constitutions vary considerably from one state to another. 

The Colorado Constitution, for example, confers both initiative (“the people of each city and town of this state . . . are hereby vested with, and they shall always have, power 

to make, amend, add to, or replace the charter of said city 

or town, which shall be its organic law and extend to all its 

local and municipal matters”) and immunity (“such charters 

and the ordinances made pursuant thereto in such matters 

shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict 

therewith”).’ These texts both empower the home rule unit 

to exercise initiative as to all local and municipal matters and 

immunizes the home rule unit from state legislative interference in all local and municipal matters. 

U.S. Advisory Commission on Intergovernmental Relations 7 
Power of Initiative but Not Immunity 

Pennsylvania’s home rule provision exemplifies how 

states afford a charter unit the authority to “exercise any 

power or perform any function not denied by this Constitution, by its home rule charter, or by the General Assembly at any time.” It grants initiative but not immunity? In 

this formulation, known as the Fordham-American Municipal Association devolution-of-powers approach to local governance? the state legislature has a free hand in 

defining and limiting the scope of local initiative. 

Power of Immunity but Not Initiative 

State constitutions contain several types of provisions 

conferring immunity, but not initiative, on local government. For example, the Utah Constitution prohibits the 

legislature from passing any law granting the right to construct and operate a street railroad, telegraph, telephone, 

or electric light plant within any city or incorporated town 

“without the consent of local authorities.”1° Thus, a Utah 

municipality cannot be forced to accommodate certain 

state-franchised utilities, but may not otherwise have any 

affirmative regulatory authority over these enterprises. 

Virginia’s prohibition of state taxation for local purposes does not, for example, provide thereby its political 

subdivisions with affirmative taxing authority.” In several 

states, the “ripper c1ause”l2 forbids the legislature from 

delegating “to any special commission, private corporation, or association, any power to make, supervise, or interfere with any municipal improvement, money, 

property, or effects . . . or to levy taxes or perform any 

municipal function whatsoever” without conferring on 

protected municipalities any correlative power to initiate 

action in any of the enumerated policy areas.13 Also, state 

constitutional prohibitions against special or local laws are 

aimed at conferring immunity, but not initiative, on local 

governments. l4 

Neither Power of Initiative Nor Immunity 

The Connecticut Constitution illustrates the strict 

controlby the state over its political subdivisions. It states: 

The General Assembly shall . . . delegate 

such legislative authority as from time to time it 

deems appropriate to towns, cities, and boroughs 

relative to the powers, organization, and form of 

government of such political subdivision^.^^ 

The apparent utility of this type of provision is to defeat 

challenges to a broad allocation of authority to local governments based on a delegation doctrine or due process 

claims.I6 

Shortcomings of the Immunity 

and Initiative Concepts 

Although Clark’s classification of these concepts 

helps in understanding local legal autonomy, it is both inadequate and overly general. 

Sho Sat0 and Arvo Van Alstyne help fill this gap, using the example of the practical, everyday problems of 

those who give legal advice about home rule: 

From the viewpoint of the attorney-whether he represents a public agency or a private 

client-the significant issues relating to home 

rule ordinarily cluster around three distinguishable problems: (1) to what extent is the local entity insulated from state legislative control; (2) to 

what extent in the particular jurisdiction does the 

city (and in some states the county) have home 

rule power to initiate legislative action in the absence of express statutory authorization from the 

state legislature; and (3) to what extent are local 

home rule powers limited, in dealing with a particular subject, by the existence of state statutes 

relating to the same subject?” 

It is this third aspect of home rule, the preemption 

question, that is important in determining the true scope 

of local government autonomy. 

The Illinois Constitution speaks directly to this 

preemption issue when it asserts that “home rule units 

may exercise and perform concurrently with the State any 

power or function of a home rule unit to the extent that 

the General Assembly does not specifically limit the concurrent exercise or specifically declare the State’s exercise 

to be exclusive.”’* 

One other difficulty that initiative and immunity models of local government autonomy face is the ability to 

cope with collaboration in intergovernmental relations, 

intergovernmentally (among federal, state, and local governments), interjurisdictionally (among counties, cities, 

and special districts), and with the private sector.lg The 

collaborative perspective has undoubtedly influenced the 

entrenchment of rules concerning interlocal cooperation 

and transfer of functions in state constitutions.20 Thus, the 

Illinois Constitution provides that: 

Units of local government and school districts may contract or otherwise associate among 

themselves, with the State, with other states and 

their units of local government and school districts, and with the United States to obtain or 

share services and to exercise, combine, or transfer any power or function in any manner not prohibited by law or by ordinance. Units of local 

government and school districts may contract and 

otherwise associate with individuals, associations, 

8 U.S. Advisoly Commission on Intergovernmental Relations 
and corporations in any manner not prohibited by 

law or ordinance. Participating units of government may use their credit, revenues, and other 

resources to pay costs and to service debt related 

to intergovernmental activities2’ 

The notion of autonomy as both initiative and immunity is not specific enough to facilitate the task of constructing indices of local discretionary authority;22 

additional tools are needed. 

These tools were presented in a report of the U.S. 

Advisory Commission on Intergovernmental Relations 

(ACIR) entitled Measuring Local Discretionary Authority 

(1981). In this report, ACIR defined local discretionary 

authority as: 

the power of a local government to conduct its 

own affairs-including specifically the power to 

determine its own organization, the functions it 

performs, its taxing and borrowing authority, and 

the numbers and employment conditions of its 

personnel.” 

Examining these four dimensions of local government discretionary authority-structure, function, fiscal, and personnel24- helps citizens and public officials 

get a clearer picture of local government autonomy and 

the trends affecting it. It enables the observer-whether trained in law, public administration, or political 

science-to organize and synthesize the otherwise unwieldy universe of state constitutional provisions, and 

court cases interpreting them, that bear on the question 

of local autonomy. 

There is much debate as to whether courts are unduly hostile or friendly to local auton0my.2~ This debate 

parallels the perennial discussion on the merits of centralization versus decentralization in American government.26 A careful study of state constitutions can reveal 

how much and to what extent constitutional provisions 

have been shaped in reaction to judicial decisions concerning the division of powers between states and their 

units of local government. 

Thus, the four categories of discretionary authority 

defined in the 1981 report are reviewed in the next chapter 

to determine their fruitfulness in analyzing local government autonomy. 

Notes 

Exceptions include: Arthur Maass, ed., Area and Power(Glenm, 

Illinois: The Free Press, 1959); Anwar Syed, The Political Theory 

of American Local Government (New York Random House, 

1966) W Hardy Wickwar, TIze Political Tlleory of Local Govern- ment (Columbia: University of South Carolina Press, 1970). 

’A comprehensive account of the allocation of authority be- tween state and local government, even in a single jurisdiction, 

has never been written. The complexities involved are well illus- trated by Joseph Zimmerman’s discussion of how advisory opinions by the attorney general and comptroller of the State of New 

York constrict or broaden the statutory powrs of local govemments. Joseph E Zimmerman, State-Local Relations: A Partner- ship Approach (New York Praeger Publishers, 1983), pp. 34-37. 

Gordon L. Clark, Judges and the Cities, Interpreting Local Au- tonomy (Chicago: University of Chicago Press, 1988), and ‘A 

Theory of Local Autonomy,” Annals of the Association of 

Anterican Geographers 74 (Spring 1984): 195. 

Clark, ‘A Theory of Local Autonomy,” p. 197. 

Ibid., p. 198. 

Ibid., p. 199. He then goes on to relate these ideal types to sev- eral concrete examples of local governments: (1) the autono- mous city-state (ancient and medieval); (2) decentralized 

liberalism; (3) local discretionary implementation of centrally 

defined tasks; and (4) local government under Dillon’s Rule. 

Pennsylvania Constitution, Art. IX, $2. 

American Municipal Association, Model Constitutional Provisioiis for Municipal Home Ride (Chicago: American Municipal 

Association, 1953). Jefferson Fordham was hired by the Na- tional Municipal League to prepare a model state constitution 

including home rule provisions. 

lo Utah Constitution, Art. XII, 38. 

“Virginia Constitution, Art. X, 910. 

l2 See David 0. Porter, “The Ripper Clause in State Constitu- tional Law-An Early Urban Experiment,” Utah Law Review 

69 (April and June 1969): 287 and 450. 

l3 Pennsylvania Constitution, Art. 111, $20. 

l4 C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- cal Governtizent Law (Wilmette, Illinois: Callaghan & Company, 1982), Volume 1, 3.25-3.34. 

’Colorado Constitution, Art. XX, 36. 

‘5C~nnecticut Constitution, Art. X, 31. 

‘6BOttone v. Town of Westport, 209 Conn. 652 (1989). 

17Sho Sat0 and Arvo Van Alstyne, State and Local Government 

Law, 2nd ed. (Boston: Little, Brown and Company, 197‘7) p. 136. 

18111inois Constitution, Art. VII, 6(i). See David C. Baum, “A 

Tentative Survey of Illinois Home Rule: Legislative Control, 

Transition Problems, and Intergovernmental Conflict,” Univenity of Illinois Law Forutii 3 (3, 1972): 559. 

l9 Daniel J. Elazar, The American Partnedtip (Chicago: University of Chicago Press, 1962); Joseph E Zimmerman, State-Local 

Relations: A Partnership Approach (New York: Praeger Publish- ers, 1983); US. Advisory Commission on Intergovernmental 

Relations (ACIR), Metropolitan Organization: The St. Louis 

Case (Washington, DC, 1988); William G. Colman, State and 

Local Govenzment and Public-Private Parinenhips (Westport, 

Connecticut: Greenwood Press, 1989); and E. Blaine Liner, 

ed., A Decade of Devolution: Petspecfives on State-Local Rela- tions (Washington, DC: The Urban Institute Press, 1989). 

2o Comment, “Interlocal Cooperation: The Missouri Approach,” 

Missouri Law Review 33 (Summer 1968) 442; ACIR, State Legis- lative Pmgmn #2, Local Government Modernization: Interlocal 

Contracting and Joint Entetprise (Washington, DC, 1975) 

21 Illinois Constitution, Art. VII, lqa); Mark A. Hall and Jeny B. 

Wallack, “Intergovernmental Cooperation and the Transfer of 

Powers,” University of Illinois Law Review 3 (1981): 775. 

U.S. Advisoty Commission on Intergovernmental Relations 9 
22 James W. Fesler, ‘Approaches to the Understanding of Dean23 ACIR, MeaFuring Local Discretionary Authority (Washington, 

241bid., p. 6. 

25 Gerald Frug, “The City as a Legal Concept,”Harvard Law&- 

view 93 (April 1980): 1059; Richard J. Briffault, “Our Localism: 

Part I-The Structure of Local Government Law,” and “Our 

Localism: Part 11-Localism and Legal Theory,” Columbia 

Law Review 90 (January and March 1990): 1 and 346. See also 

Frank J. Macchiarola, “Local Government Home Rule and 

the Judiciary,” Journal of Urban Law 48 (2, 1971): 335. 

26Michael E. Libonati, “Home Rule: An Essay on Pluralism,” 

Washington Law Review 64 (January 1989): 51. 

tralization,” Journal of Politics 27 (Summer 1965): 536. 

DC, 1981) p. 1. 

10 U.S. Advisoty Commission on Intergovernmental Relations 
Chapter 2 

ANALYZING LOCAL GOVERNMENT AUTONOMY 

A more detailed analysis of autonomy in local government should start with a reexamination of the four typesof 

local autonomy identified in the previous chapter-structural, functional, fiscal, and personnel. 

Structural Autonomy 

tonomy provided to local governments. These include: 

Several elements affect the degree of structural auBarriers to the enactment of impermissible 

state legislation; 

Approval of the local electorate as a check on 

the state legislature; 

Local voter initiatives as a counterweight to 

state power; 

Constitutional restrictions on the scope of 

home rule authority; 

Geographic reach of local government powers; and 

Constraints on collaborative action. 

Barriers to the Enactment of Impermissible State Legislation. 

Autonomy in the sense of immunity from state legislative 

interference preceded affirmative grants of local initiative. Many early state constitutions, for example, made 

the filling of certain local offices the prerogative of local 

electors.’ The New Jersey legislature might define the 

contours of the office of county sheriff, for instance, but 

the state constitution of 1776 required that the sheriff be 

elected by the inhabitants of the county? 

Connecticut’s first constitution required the annual 

election of town selectmen “and such olfices of local police as laws may prescribe.”’ A similar provision in the 1850 

Michigan Constitution was used by the Michigan Supreme 

Court to strike down a statute substituting state-appointed 

boards for locally elected officials in order to manage service provision in the City of Detr~it.~ The Ohio Constitution of 1851 prohibited the legislature from “creating new 

counties, changing county lines or removing county seats” 

without referendum approval of the electors of the affected countie~.~ 

Many nineteenth and early twentieth-century state 

constitutions sought to immunize local governments from 

state legislatures enacting local or special laws affecting 

local government structures and the duties of local officials. Pioneering provisions of the 1851 Indiana Constitution prohibited state regulation of: 

(1) Jurisdiction and duties of justices of the 

(2) County and township business; 

(3) Election of county and township officers and 

(4) The assessment and collection of taxes for. . . 

(5) Fees or salaries; and 

(6) The opening and conducting of elections of. . . county or township officers and designating 

the places of voting. . . ? 

The Missouri Constitution of 1875 contained a more 

elaborate and systematic set of prohibitions crafted toprotect local structural autonomy and theaccountability of local officials. It barred: 

peace and of constables; 

their compensation; 

county, township, or road purposes; 

(1) Locating or changing county seats; 

(2) Incorporating cities, towns, or villages or 

changing their charters; 

(3) Erecting new townships or changing township lines or the lines of school districts; 

(4) Creating offices or prescribing the powers 

and duties of officers in counties, cities, 

townships, election, or school districts; 

(5) Regulating the fees or extending the powers 

and duties of alderman, justices of the peace, 

magistrates, or constables; 

(6) Regulating the management of the public 

schools. . .; 

(7) Extending the time for the assessment orcollection of taxes or otherwise relieving any asU.S. Advisory Commission on Intergovernmental Relations I? 
sessor or collector of taxes from the due 

performance of their official duties or their 

securities from liability; and 

(8) Legalizing the unauthorized or invalid acts of 

any officer or agent . . . of any county or municipality. . . .’ 

In addition, Alabama’s 1901 Constitution defined a local 

law as one “which applies to any political subdivision or subdivisions of the state less than the whole” in creating a similar enumeration of impermissible legislative enactmenk8 

It should be noted, however, that prohibitions against 

local or special legislation create only a permeable barrier to 

state legislative actions affecting local government decisionmaking structures. They reach only statutes that do not meet 

the constitutionally prescribed level of generality and uniformity. The legislature is ordinarily still free to classify local 

governments by population or some other general criterion? 

Thus, the Missouri legislature retained the capacity to 

interfere in structural matters by enacting legislation generally applicable to home rule cities.” Nonetheless, the Missouri Constitution was changed to prohibit the legislature 

from creating more than four classes of cities and towns.” 

To protect the autonomy of Boston, the Massachusetts Constitution requires that general laws apply to a 

class of not fewer than two cities and towns.12 In North Dakota, a statute denying powers must apply to all home rule 

cities and village^.'^ The Rhode Island General Assembly 

has the power to enact general laws applicable to all cities 

and towns provided they do not affect “the form of government.”14 The South Carolina Constitution expressly limits 

the authority of home rule entitics to set aside “the structure 

and the administration of any governmental service or function, responsibility which rests with State Government or 

which requires statewide ~niformity.”’~ 

Not all state constitutions take an inflexible position 

against state legislative interference in local matters. Often, state constitutional provisions governing local or special legislation may provide for flexibility through local 

choice. For example, home rule governments in New York 

may opt out of the protection otherwise afforded by the 

constitutional ban on local or special laws on request of either a super-majority of its legislative body or its chief executive officer with a concurrence of a legislative 

majority.16 The New Jersey Constitution permits private, 

local, or special laws affecting the internal affairs of a local 

government on petition of its governing body, with the approval of a super-majority of each house of the state legislature. The law becomes operative only if adopted by an 

ordinance of the governing body or a local referendum.” 

Approval by the Local Electorate as a Check on the State Legislature. State constitutions are sprinkled with provisions 

that allow state legislative power over a variety of structural issues only with local electoral approval. In North Dakota, for example, the legislature must provide counties with 

optional forms of government, including the county manager plan, but no optional form may become operative 

without the approval of 55 percent of those voting in a local election.’* Local voters in Montana periodically must 

be offered an opportunity to review their existing local 

government ~tructure.’~ 

Several state constitutions contain rules requiring 

that fundamental changes in county government structure, such as consolidation, dissolution, and shifts in 

boundaries or county seats, must be approved by a majority of voters in each affected county.” 

The ripper clause also is a device for assuring a negative 

liberty of local government (that is, freedom from control by 

a state-created agency appointed by the legislature without 

the direct consent of the local electorate).*l 

Local Vder Znitihtives as a Counterweight to State Powex A 

more robust guarantee of voter choice is found in state constitutions that entrench not only the blocking power of the 

local referendum but also the power for citizens to initiate 

municipal or county The constitutions of Ohio, 

Oklahoma, and Oregon provide examples of this approach. 

Constitutional Restrictions on the Scope of Home Rule Authoritj. With regard to autonomy in the sense of initiative, 

no state constitutions limit the ambit of home rule power 

simply to matters of 

The constitutions of 16 states (California, Colorado, 

Florida, Georgia [cities only], Illinois, Iowa, Kansas, Louisiana, Maine, Michigan [counties only], Ohio, Oregon 

[counties only], Rhode Island, West Virginia, Wisconsin, 

and Wyoming) contain terms like “municipal affairs,” 

“municipal matters,’’ and “powers of local self-government,” which would appear to convey discretion over the 

structure and methods of operation of local go~emrnent.2~ 

This hypothesis is apparently confirmed in the case law of 

California, wherein matters concerning local elections, procedures for enacting and enforcing ordinances, forms of government (e.g., city manager, strong mayor, or weak mayor), 

and the establishment and operation of local administrative 

bodies fall within the ambit of municipal affairs.= 

The force of these provisions, however, is weakened 

considerably when the question presented for decision involves a relevant state statute arguably in conflict with a 

charter provision.26 Thus, when an agreement entered 

into by a California home rule city under a state statute 

providing for the joint exercise of powers was challenged 

as violating its charter, the state supreme court sustained 

the agreement. It stated, “If the conceivably conflicting 

charter provisions of all the contracting cities were held to 

be applicable and relevant, the effect would be to vitiate 

the statute authorizing joint and cooperative action.”*’ 

Courts in California and other jurisdictions where a 

constitutional grant of home rule initiative is qualified by 

12 U.S. Advisory Commission on Intergovernmental Relations 
the adjective “local” or “municipal” have not been shy in 

holding that the subject matter in question is susceptible 

to redefinition as a matter of statewide concern when the 

state legislature has so spoken.= 

The Louisiana Constitution guarantees structural autonomy by prohibiting the legislature from changing or affecting the structure and organization or the distribution 

of powers of a home rule entity.” The constitutions of 

Georgia (counties only), Michigan (cities only), New York, 

and Rhode Island have language that conveys power over 

matters concerning “property, affairs or go~ernment.”’~ 

Maryland, Nebraska, Nevada, Oklahoma, Utah, and 

Washington each have constitutions that employ the term 

“its own government” to delineate the scope of local initiati~e.~’ As in the case of texts using the arguablybroader 

terms of municipal affairs or local self-government, the 

scope of structural autonomy afforded will be subject to 

the vagaries of judicial interpretation as well as to the 

preemptive effect of general state statutes. 

The Oregon and Texas constitutions grant eligible Cities 

comprehensive power to formulate the contents of their 

home rule charters, limited onlyby the preemptive powers 

of the legislat~re.~~ Eleven states (Alaska, Connecticut, 

Massachusetts, Missouri, Montana, New Hampshire, 

New Mexico, North Carolina, North Dakota, Pennsylvania, and South Dakota) embrace the devolution-of-powers 

model, making the extent of powersafforded local governments dependent on state enabling legislation, which may 

or may not confine the scope of structural autonomy.33 

Four state constitutions speak unambiguously to the 

issue of structural initiative. The Colorado Constitution 

empowers home rule counties to provide for the organization and structure of county government consistent with 

state ~tatutes.3~ Tennessee authorizes each home rule entity to provide for “the form, structure, personnel and organization of its go~ernrnent.”~~ South Carolina grants the 

power to frame a charter “setting forth governmental 

structure and organization.. . .”36Finally, the South Dakota document achieves clarity on the issues of initiative and 

immunity by stipulating that: 

[Tlhe charter may provide for any form of executive, legislative and administrative structure 

which shall be of superior authority to statute, 

provided that the legislative body so established 

be chosen by popular election and that administrative proceedingsbe subject to judicial review.37 

Geographic Reach of Local Government Powers. Home 

rule powers are not generally interpreted to extend beyond the territorially defined boundaries of the home rule 

unit.38 Thus, except in Minnesota and Texas, a home rule 

entity cannot, on its own initiative, change its boundarie~.~~ A home rule city in Alaska, however, could be dissolved at the behest of the state 

Constraints on Collaborative Action. Similarly, express 

constitutional or statutory grants of power are required to 

allow home rule units to engage in collaborative activities 

and agreements with other units of g~vernrnent.~~ 

Functional Autonomy 

Government is not simply a question of fom and 

structure. It exists for a purpose, usually the identification 

and resolution of common problems?* It is predictable 

that functional autonomy, in the sense of initiative, predominates over autonomy, in the sense of immunity, in 

various state constitutions. 

Current Constitutional Approaches. A study of early 

constitutional home rule provisions indicates that the power 

to create a charter “for its own government” was granted to 

local governments along with the power to regulate and the 

power to provide ~eMces.~~ For example, the Michigan and 

Ohio constitutions resolved the debate over municipal ownership of public utilities by expressly permitting it.” 

The Bill of Rights provision of the local government 

article of the New York Constitution includes a compendious grant of regulatory authority over “the government, 

protection, order, conduct, safety, health and well-being 

of persons or property,” as well as an express power to acquire, own, and operate transit fa~ilities.4~ Under the Florida Constitution, home rule municipalities “shall have 

governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services.”46 

Local regulation of private conduct may, of course, be 

problematic in the 16 states that employa qualifyingadjective like “local” or “municipal” in conveying discretion to 

local governments over their structure and administration. Thus, a home rule city’s power to enact a rent control 

ordinance was struck down in Florida but sustained in Calif~rnia.~~ In the ten states adopting the devolution-of-powers model, the scope of regulatory authority is 

limited by the charter, state law, or the constitution itself.48 Home rule regulatory powers are subject to the 

preemptive effect of state statute in these ten jurisdictions. In California and other states that provide concurrent powers of the state with their local governments, 

home rule regulatory powers are subject to preemption if 

the matter in conflict is of statewide c0ncern.4~ 

In any event, autonomy in the sense of immunity cannot be conferred on home rule regulatory activities because individuals subject to such regulation possess 

procedural and substantive constitutional rights against 

governmental regulatory overreach?’ Local governments, like the state and federal governments, exercise 

their regulatoly authority subject to judicial review. This 

restriction always applies. 

U.S. Advisory Commission on Intergovernmental Relations 13 
Authority to Provide Services. Nevertheless, states have 

authorized specific functions as responsibilities that local 

governments may wish to or must undertake. Oklahoma 

and Arizona empower municipal corporations to “engage 

in any business or enterprise” that may be engaged in by 

the private ~ector.~’ The Arizona Constitution vests special purpose service provision districts “with all the rights, 

privileges, benefits . . . immunities and exemptions” afforded Arizona municipalities and political 

Home rule units in South Carolina can undertake to provide gas, water, sewer, electric, and transportation services if the local electorate consent^?^ The Illinois 

Constitution established only two unlimited powers of 

home rule cities: the power to make local improvements 

by special assessments and the power to impose taxes for 

the provision of special services.54 

Intergovernmental Relations. A sampling of the constitutions of California, Florida, Illinois, Missouri, New York, 

Ohio, Pennsylvania, and Texas yields a good snapshot of contemporary variations in state constitutional law on intergovernmental relations. The Ohio text, unrevised since 1912, is 

silent on this topic. A series of ad hoc amendments to the 

’Exas Constitution permits specific collaborative projects between countie~.~~The California Constitution speaks only to 

the issue of whether a county may perform municipal function~.~~ But the California Supreme Court assured a broad 

competence to collaborate when it sustained a state statute 

providing for joint exercise of powers in dealing with matters 

of statewide concern which could, therefore, lawfully override conflicting charter provision^.^' 

The New York Bill of Rights confirms that local governments have the power, as authorized by the legislature, 

“to provide cooperatively, jointly or by contract any facility, service, activity or undertaking which each local government has the power to provide ~eparately.”~~ 

Pennsylvania even allows local voters in the areas affected to compel local governments to cooperate with or 

transfer functions to other governmental units, including 

special districts, the state, and the federal government.% 

Other states have broadly phrased language permitting collaboration in the provision of public improvement, 

facilities, and services.@ 

Fiscal Autonomy 

Fiscal autonomy, whether in the sense of initiative or 

immunity, traditionally has not been considered a necessary component of home Dillon’s Rule of strict construction of empowering legislation is riddled with 

qualifications, but not as to the subjects of borrowing and 

taxation.62 ACIR’s recent study State Laws Governing Local Government Structure and Administration: A Comparison of the Laws in 1978 and 1990 reveals that, for local 

government, financial management is a realm of con- 

~traint.~~ Forty-eight states, for example, impose debt limits on cities, 40 on counties. Other detailed restrictions 

cover referendum requirements (40 states); maximum duration of bonds (41 states); and interest ceilings (24 states). 

Thirty-eight states impose property tax limits on cities and 

35 do so on counties. Forty-eight states establish the method of property tax assessment for local governments. 

Only a handful of states have provisions that directly 

address the question of fiscal initiative. Nine state constitutions expressly provide autonomy with respect to borrowing and taxationM Tennessee and Iowa expressly 

preclude additional taxing authority. Massachusetts and 

Rhode Island do so for both borrowing and taxati0n.6~ 

Vaguer constitutional grants of power couched in 

terms like “municipal matters” or “local self-government” 

are unsparingly criticized in the legal literature.& Yet, 

such provisions of the California, Missouri, Ohio, and 

Oregon constitutions have been interpreted by courts to 

empower home rule units to diversify their portfolio of 

revenue generating measures beyond the property 

Despite the success in these four states, the courts did not 

approve municipal income taxes in two states with similar 

constitutional language, Missouri and Colorado.@ Also, 

taxation, like other exercises of home rule powers in states 

giving substantial local autonomy, even if somewhat 

vaguely stated, may be preempted by statute on the 

grounds that the subject is of statewide concern.@ 

State mandates are the only area of fiscal policy in 

which state constitutions confer a degree of immunity 

from the otherwise plenary power of the state legislat~re.~O Mandate provisions range from Alaska’s, which imposes a local referendum requirement on local acts of the 

state legislature necessitating appropriations by a political 

subdivision, to the cost-sharing approach of Tennessee 

and Hawaii to the broader strictures of the California, 

Massachusetts, Michigan, Missouri, New Hampshire, and 

New Mexico constitution^.^^ 

Personnel Autonomy 

In State Laws Governing Local Government Structure 

and Administration, ACIR also delineates the scope of 

personnel autonomy.“ Personnel matters include: 

(1) The hiring, promotion, discipline, and termi- 

(2) Civil service and the merit system; 

(3) Levels of compensation and entitlement to 

(4) Collective bargaining; and 

(5) Conflict-of-interest requirements, disclosure requirements, and restrictions on partisan political a~tivity.7~ 

nation of public employees; 

fringe benefits, such as pensions; 

14 U.S. Advisoly Comniission on Intergovernmental Relations 
This area of the law annually produces a flood of court 

cases, few of which turn for their resolution on the home 

rule status of the public employer.74 

Constraints Imposed by Federal Law. Autonomy in the 

sense of immunity is hard to come by in personnel matters 

because public employees’ claims are increasingly sheltered by individual rights provisions of the state and federal constitutions applicable to all governments, regardless 

of home rule status. A home rule public employer is just as 

limited as any other public employer by constitutional 

strictures forbidding patronage hiring, sex discrimination, 

or termination for exercising protected freedoms of 

speech or as~ociation.~~ Similarly, a public employee’s due 

process rights to procedural fairness bind all governments 

in the federal system.76 

State Judicial Activism. An activist state judiciary may 

fashion protection for public employees that exceeds the 

floor provided by federal courts, as, for example, in the 

area of drug or polygraph te~ting.~’ 

Pension and Ben&. Public employee pension and 

benefit rights also may be protected by an express provision of the state constitution or a judicial interpretation of 

a provision forbidding the impairment of In 

Florida and New Jersey, public employees are constitutionally guaranteed the right to organize.79 Financial disclosure by Illinois public employees and officials is 

mandated by the state constitution; in California, however, the extent of disclosure by public employees is limited 

by their constitutional privacy rights.8O 

Merit Systems. New York became “the first state to 

constitutionalize a merit system of civil service employment” in 1894.8l The New York provision, like that in 

Ohio’s Constitution, applies to both the state and its political subdivisions.82 

Limited Zmmunity. Immunity from interference by the 

state legislature is a possible outcome mostly in those jurisdictions that allow for concurrent regulatory control. 

During 1978-1990, significant trends in the case law of California, Oregon, and New York diminished, if not extinguished, local autonomy over personnel matters. 

The most recent state to entrench local autonomy 

over personnel matters in its constitution is Louisiana. Its 

1974 constitution renders the appointment and functioning of city civil service commissions impervious to state 

legislative contr01.8~ The legislature is forbidden from enacting laws mandating “increased expenditures for wages, 

hours, working conditions, pension, and retirement benefits, vacation or sick leave benefits of political subdivision 

employees” unless the governing body of the affected entity approves or the state legislature appropriates and provides the necessary funds.84 

Autonomy in the sense of initiative, as is the casegenerally, turns on judicial decisions interpreting varied state 

constitutional texts as well as judicial receptiveness to 

claims that proper home rule enactments are preempted 

by state statutes. As has been observed: “It may, in fact, be 

the case that cities, in effect, already have expansive powers. 

But it would be more accurate to say that, because of the ongoing judicial interpretation, no one really 

The analysis above may help with the more demanding policymaking tasks that states face with regard to local 

government autonomy. Moreover, the influence and willingness of the courts to make their own assessment of the 

bounds within which local government can operate poses 

for the states an ever more difficult determination of what 

the right balance ought to be in the relationships they have 

with their political subdivisions. 

First, the increasing fiscal pressures on government 

and rising service expectations by the citizenry make continued controversy and debate over state constitutional 

treatment of local governments inevitable. As policymakers evaluate proposals for change, they should consider six basic concerns before altering the state-local relationship embodied in their state’s constitution: 

Whether it is desirable to increase or decrease 

the restrictions, if any, imposed on the power 

of the state to regulate local government; 

The degree of autonomy, however defined in 

the minds of the citizens of a particular state, 

to be granted to local governments; 

The extent of citizen choice in local government; 

Which local government units are eligible for 

local autonomy; 

Aspects of intergovernmental cooperation; 

and 

The role of the courts in determining issues 

of local autonomy. 

Restrictions on the State 

First, decisionmakers should consider whether any 

limits should be placed on the otherwise plenary power of 

the state legislature to arrange the activities and affairs of 

local government. As the United States Supreme Court 

made clear in 1907, it is to the state and not the federal 

Constitution that one must look for restraints: 

Municipal corporations are political subdivisions of the State, created as convenient agencies 

U.S. Advisory Commission on Intergovernmental Relations 15 
for exercising such of the governmental powers of 

the State as may be entrusted to them. . . . The 

number, nature, and duration of the powers conferred upon these corporations and the territory 

over which they shall be exercised rests in the absolute discretion of the State. Neither their charters, nor any law conferring governmental 

powers, or vesting in them property to be used for 

governmental purposes, or authorizing them to 

hold or manage such property, or exempting 

them from taxation upon it, constitutes a contract 

with the State within the meaning of the Federal 

Constitution. The State, therefore, at its pleasure 

may modify or withdraw all such powers, may take 

without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part 

of it with another municipality, repeal the charter 

and destroy the corporation. All this may be 

done, conditionally or unconditionally, with or 

without the consent of the citizens, or even 

against their protest. 

In all these respects the State is supreme, 

and its legislative body, conforming its action to 

the state constitution, may do as it will, unrestrained by any provision of the Constitution of 

the United States. Although the inhabitants and 

property owners may by such changes suffer inconvenience, and their property may be lessened 

in value by the burden of increased taxation, or 

for any other reason, they have no right by contract or otherwise in the unaltered or continued 

existence of the cot$oration or its powers, and 

there is nothing in the Federal Constitution 

which protects them from these injurious consequences. The power is in the State and those who 

legislate for the State are alone responsible for 

any unjust or oppressive exercise of it?6 

Nineteenth century experiments with establishing 

constitutional limitations on legislative power, such as the 

prohibitions against local, special, or ripper legislation, 

have not generally proved to be meaningful guarantors of 

local immunity. Several states with robust local self-government, notably Vermont and Virginia, prefer the flexibility and adaptability to local circumstance offered by a 

regime of local or special legislation?’ Other states, through 

such devices as local option laws and classification by population, have been able to accommodate varied local preferences, even where local or special legislation is forbidden. 

The decision to provide for the powers of local government in the state constitution clearly shows a consideration for a healthy and viable local government. The 

manner in which it is presented depends on the basic state 

attitude toward its political subdivisions (as expressed by 

the people of that state, who must approve such constitutions). On the one hand, local governments are seen as 

somewhat independent actors in a statewide framework, 

making and implementing decisions with a fair degree of 

autonomy. On the other, local governments seem to derive their authority from grants of power-sometimes 

general, sometimes specific-and are constrained to act 

within a state-initiated delegation of power. 

With regard to the former, a measure of immunity 

from state interference in local government has been hard 

to preserve, as is revealed in the trend of judicial decisions 

during the 1978-1990 period (discussed later in this report). Local immunity may be easily overridden by a state 

statute treating the policy problem as one of “statewide” 

rather than exclusively “municipal” concern. Local initiative may be quashed by a narrow construction of the scope 

of “municipal” powers or by giving broad preemptive effect to state statutes dealing with the policy problem. 

As for the latter attitude, the state legislature may 

be afforded too much flexibility, particularly in an era of 

fiscal stress. 

In addition to these practical considerations, a judicially determined “one person-one vote” rule has drastically limited the historic practice of assuring a strong 

nexus between state legislative district boundaries and local governments, thus attenuating the influence of identifiable local political communities in the state legislature?* 

The emergence of organized interest groups capable of 

mobilizing a statewide constituency may further dilute the 

force of claims to local government autonomy-california is a prime example.89 

The Degree of local Government Autonomy 

That there is a complex patchwork of local government autonomy is demonstrated throughout this report. 

Variety exists in every category of autonomy. Existing state 

constitutional provisions exhibit every conceivable permutation of initiative and immunity as to structural, functional, fiscal, or personnel matters. 

If the policy of affording a constitutionally protected 

sphere of immunity to local government is to be a serious 

one, it needs to be addressed in each of the policy areas 

discussed earlier in this report: structural, functional, personnel, and fiscal autonomy. 

The Role of Citizen Choice 

State constitutions teach concern not only for the role 

of institutional actorsbut also for citizen choice. An exclusive focus on entrenching rules relating to the roles of state 

and local institutions may divert attention from the claims of 

local citizens to participation in decisions with respect to 

structural, functional, personnel, or fiscal matters. 

16 U.S. Advisory Commission on Intergovernmental Relations 
The “tax revolt” in California in 1978 may well have 

come about over the perceived loss of citizen control in local taxing policy?O Even in the Missouri Constitution of 

1875, there was a marked shift in the locus of consent concerning the institutional form and functional powers of local government. 

A local government article of the state constitution 

could facilitate citizen choice either by specifying the rules 

for direct citizen participation in local decisionmaking or 

by making it clear that the home rule charter can employ 

any of the devices of direct democracy-referendum, recall, and initiative?l 

Eligibility for local Autonomy 

State constitutions have extended various forms of 

autonomy to general purpose units of government. Counties, as well as municipalities, have been recognized increasingly as appropriate candidates for home rule?* 

Special districts, including school districts, have played a 

significant role in furthering local self-government 

through collective actionP3 Consideration may be given to 

making their powers of initiative constitutional, as in Arizona, or immunity, as in Virgk1ia.9~ 

There is no question that the statutory powers given 

to a wide variety of local government units presents serious issues of jurisdictional overlap. State policies concerning the impact of the grant of autonomy to a whole host of 

political subdivisions need clarification in most states. 

Intergovernmental Cooperation 

Almost as a necessary concomitant to the issue of eligibility, intergovernmental cooperation will become a 

powerful resource in resolving the questions raised by local government autonomy. Intergovernmental cooperation provides various local governments with options to 

expand the scope of discretionary authority in a wide range 

of services provided to the public. As such, it must be reviewed as a possible constitutional fixture in state-local 

and local-local government relation^?^ It also allows for 

the consideration of public-private partnerships in service 

delivery and government organization. Indeed, it is, perhaps, one of the most flexible of tools in meeting the ever 

changing demands of a local citizenry. 

The Role of the Judiciary 

Home rule policies in state constitutions are shaped 

to a significant degree by the judiciary. Because judicial review is an inevitable part of the American constitutional 

framework, policymakers are obliged to take into account 

juridical problems that predictably occur when power is 

diffused among political subdivisions. These juridical issues include: 

(1) How is the constitutional text to be interpreted? 

(2) Do political subdivisions have the authority 

to assert constitutional claims against the 

state and its agencies? 

(3) How are conflicts between state statutes and 

home rule charters or ordinances to be resolved? 

Failure to think through whether or not decisions concerning these recurrent topics are appropriate to include 

in state constitutions may lead to the kinds of unanticipated consequences that beset the implementation of complex 

Translating the concepts of local government autonomy into statutory or constitutional language will no doubt 

tax the ingenuity of the drafters because the language 

must not only articulate agreed-on policy decisions but 

also must be sensitive to factors concerning the way in 

which the text will be interpreted. The most important of 

these are: 

(1) Clarity of the text; 

(2) Principles of construction; 

(3) Judicial perspectives on local autonomy; 

(4) Citizen demands to expand, constrict, orclar- 

(5) Official and institutional demands to expand, 

ify existing texts; and 

constrict, or clarify existing texts. 

Clarity of the Text 

The process of selecting language for incorporation 

into a state constitution should be based on a careful consideration of the precise intention of that language. Thus, 

the use of the adjective “local” or “municipal” in the context of empowering local governments invites both a limiting interpretation and a body of interpretive case law 

focusing on whether the matter in question is of local rather than statewide concern. The elimination of a qualifying 

adjective, however, incurs the risk that a home rule unit 

will seek to extend its policy reach to areas generally recognized as falling within the competence of state or national, rather than local, authorities, as those who drafted 

the Illinois Constitution recognized?’ 

An ideal text is one “in which the author’s intended 

meaning is always the way the words are read by any reader.’w8 But a judge is not just any reader. A judge occupies a 

U.S. Advisory Commission on Intergovernmental Relations 17 
constitutionally prescribed role as an authoritative interpreter of language in a constitutional document. This is why the 

language of the text has to be formulated clearly to facilitate 

its reception and application within the legal, as well as political, culture of a given state. Indeed, it may well be that explanatory language in a document that precedes the drafting 

is necessary to aid in clarifying intent. Such is the role of convention documents, which contain speeches, debates, articles, and other such references to written material on the 

principles and details of the subject under discussion. 

Off-the-shelf language borrowed from model or sister 

state constitutions may create the illusion that knotty 

problems of constitutional choice can be resolved by experts unfamiliar with local contexts. There are no right answers about how a state constitutional text should be 

phrased, only carefully considered ones. 

Principles of Construction 

The legal profession enjoys no monopoly when it 

comes to appreciating the role that judges play in determining the success or failure of efforts to implement new 

understandings of local self-government.w Indeed, court 

decisions have frequently sparked constitutional reform. 

Thus, the 1896 amendment to the California Constitution 

that sought to create a protected realm of immunity 

against state legislative intrusion into the municipal affairs of 

a charter city was designed to overturn several decisions of 

the California Supreme Court interpreting the 1879 text.lo0 

Twelve states have included a constitutional provision 

rooting out Dillon’s Rule by mandating liberal interpretation of grants of power either to municipalities in general 

or to home rule units.lO’ The Florida legislature tried to 

change case law exhibiting a narrow and ungenerous view 

of home rule powers by passing an interpretive statute 

stating that the term “municipal purpose,” as used in the 

state constitution, “means any activity or power which may 

be exercised by the state or its political subdivisions.”102 

On the other hand, state courts may interpret even 

cryptic language in a state constitution so expansively that 

an interpretive provision is superfluous. The Texas Constitution, for example, confers charter-making authority on 

cities of over 5,000 population “subject to such limitations 

as may be prescribed by the Legislature and providing that 

no charter or any ordinance passed under said charter 

shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State.”103This 1912 text has been viewed 

generally by Texas courts as tantamount to a plenary grant 

of local legislative authority, including the power to expand the boundaries of the home rule city through annexation and the power to tax.lo4 

One thoughtful commentator has summed up the 

track record of the New York judiciary as follows: 

In both home rule and reapportionment policies, 

the role of the State’s high court, the Court of 

Appeals, as a guardian of State sovereignty against 

City incursions cannot be overstated. Strict interpretation or broad, the court read New York’s constitution so as to assure State 

This is despite the fact that the New York Constitution has a provision directing interpreters to construe the 

powers of home rule units in favor of the locality. 

Such directives do have an impact on the state judiciary. For example, the Alaska Supreme Court, after floundering about with a local activity rule, finally recognized 

the force of the liberal interpretation rule.lo6 Utah’s Supreme Court considered the statement in its state constitution barring the use of a negative implication in 

construing grants of power as a repudiation of Dillon’s 

Rule.’” William Valente cites case law in California, 

Ohio, and Wisconsin that substitutes liberal (pro-local) for 

strict construction of home rule powers in light of the recognition of local autonomy by the state constitution.108 

Judicial Perspectives about local Autonomy 

There is a debate in the academic literature on local 

government autonomy as to whether judges are predisposed to localism or centralization.1w Richard Briffault 

grounds his indices of localism in judicial decisions sustaining autonomy with respect to land use, schools, and 

property taxes.”O Gerald Frug, however, bases his indices 

of centralization in judicial decisions that have disempowered cities by applying rigid concepts drawn from a unitary 

theory of sovereignty like Dillon’s Rule.111 

This report takes a different tack. It describes an 

evolving conception of state-local relations in which such 

judge-made doctrines as Dillon’s Rule and the nondelegation doctrine, the public purpose doctrine, and the implied 

preemption doctrine have been discarded or modified by 

inserting ratifying provisions in the constitutions of many 

states. Those constitutional provisions seem to indicate 

that the framers of some state constitutions believed that 

the legal culture fostered by the state judiciary needed to 

be changed. 

Nevertheless, no one disputes the proposition that judicial perspectives play a significant role in determining 

the legal content of local autonomy. 

Citizen Demands to Expand, Constrict, 

or Clarify Home Rule Provisions 

The state constitution is, by definition, the appropriate vehicle for the exercise of constitutional choice by 

state citizens. As such, citizen demands to expand, constrict, or clarify constitutional provisions for local autono18 U.S. Advisory Commission on Intergovernmental Relations 
my have a significant impact on the constitution’s contents. This is particularly true in jurisdictions that permit 

citizens to initiate amendments to the state constitution. 

California voters, for example, are responsible for the formulation of their particular style of home rule.”* The 

state’s electorate may shrink local autonomy as well as expand it, as Californians chose to do with respect to property tax rates and assessment practice^."^ 

Many detailed and specific amendments to state constitutions are designed to clarify state policy by specifically 

overruling decisions of the state supreme court. For example, the North Carolina Supreme Court struck down, for 

want of a proper public purpose, legislation purporting to 

authorize county industrial development agencies to issue 

revenue bonds to finance industrial manufacturing and 

pollution control fa~i1ities.l~~ The state constitution was 

amended in response.11s 

Official and Institutional Demands 

to Expand, Constrict, or Clarify 

Home Rule Provisions 

Local governments are institutions with continuity 

and their own agendas of power, which may or may not 

correspond to the interests of their constituents.ll‘ Furthermore, local government officials may prefer existing 

political arrangements instead of constitutional change. 

Both the Virginia Municipal League and the Virginia 

Association of Counties, for example, opposed proposals 

of the Commission on Constitutional Revision that would 

have empowered any charter city or county “to exercise 

any power or perform any function not denied to it” by the 

constitution, its charter, or general law.117 These organizations preferred the existing regime of special legislation 

and strict construction to the devolution-of-powers model 

recommended by the commission. They were instrumental in excising the contested language from the document 

submitted to and ratified by the voters.”* 

In contrast, the Florida League of Cities sponsored a 

state constitutional amendment concerning state mandates whose “thrust is to further the ‘home rule’ movement through which local government has been given 

increasing autonomy from legislative a~tion.””~ 

In Illinois, local officials, particularly Chicago’s Mayor Richard J. Daley, actively promoted the concept of 

home rule and shaped its unique language with regard to 

local revenues and preemption.120 

Good government is not always good politics, as proponents of Maryland constitutional reform learned when 

county officials mobilized to defeat a new constitution that 

would have streamlined county government by eliminating certain elective offices, including sheriffs. The officials 

to be eliminated, it turned out, were “of considerable importance to the local political structure almost everywhere.”121 On the other hand, inclusion of home rule for 

Chicago materially assisted the successful campaign for 

adoption of the Illinois Constitution.lz2 

Almost 30 years ago, ACIR concluded its first report 

on local autonomy by stating, “Evidence points to the conclusion that units of local government with enlarged jurisdiction should be encouraged and that all such units and 

levels of government should work federati~ely.”’~’ It recommended further, ‘The variety of local government problems is almost infiiite. Solutions related to the locale should 

be sought persistently along a broad front in 50 

As American government moves toward the 21st century, those recommendations have just as much validity, if 

not more, than when they were first issued. 

Notes 

Howard Lee McBain, “The Legal Status of the American Co- lonial City,” Political Science Quartet@ 40 (June 1925): 177, 

207-208. (See the early constitutions of Georgia, Maryland, 

Massachusetts, New Hampshire, New Jersey, New York, 

North Carolina, and Pennsylvania.) 

2New Jersey Constitution, Art. XI11 (1776). Today, New Jersey 

has four elected county line officers-sheriff, county clerk, sur- rogate and register of deeds. (Only five counties have a register 

of deeds.) 

’Connecticut Constitution, Art. X, $2 (1818). 

4See, supra, Chapter 2, Endnotes and accompanying text. 

’Ohio Constitution, Art. 11, $30 (1851). 

‘Indiana Constitution, Art. IV, $22 (1851). 

’Missouri Constitution, Art. IV, $53 (1875). 

C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- cal Covenintent Law (Wilmette, Illinois: Callaghan and Com- pany, 1981), Vol. 1, $33.25-3.34. 

loKansas City v. Stegmiller, 151 Mo. 189,52 S.W. 723 (1899). 

l1 Missouri Constitution, Art. IV, $15. 

l2 Massachusetts Constitution, Art. 11, $8. 

13N0rth Dakota Constitution, Art. VII, $1. 

14Rhode Island Constitution, Art. XXVIII, $4. 

l5 South Carolina Constitution, Art. VIII, $14(6). 

16New York Constitution, Art. IX, $2(bX2Xa). 

17New Jersey Constitution, Art. IV, $VII, para. 10. 

laNorth Dakota Constitution, Art. VII, $6. 

19Montana Constitution, Art. XI, $9. 

2oTexas Constitution, Art. 3, $63, $64; North Dakota Constitu- tion, Art. VII, $3, $4; Nevada Constitution, Art. IX, $2; Mis- souri Constitution, Art. VI, $$3-5; Michigan Constitution, Art. 

VII, $13; Colorado Constitution, Art. XIV, $3; CalifomiaConstitution, Art. XI, $1; Arkansas Constitution, Art. XIII, $2 Kansas Constitution, Art. 9, $1; and Kentucky Constitution, $64. 

21 California Constitution, Art. XI, $13; Colorado Constitution, 

Art. V, $35; Missouri Constitution, Art. VI, $22; Montana 

U.S. Advisory Commission on Intergovernmental Relations 19 
20 US. Advisory Commission on Intergovernmental Relations 

Constitution, Art. V, $;New Jersey Constitution,Art. IV, $VII, 

para. 9(12); Pennsylvania Constitution, Art. 111,331; South Da- kota Constitution, Art. 111, $26; Utah Constitution, Art. VI, 

$29; and Wyoming Constitution, Art. 3, $37. 

22 Ohio Constitution, Art. 11,912 and Art. X, $1, $3; Oklahoma 

Constitution, Art. V, $5 and Art. XVIII, $4(a); and Oregon 

Constitution, Art. IV, $1(5). 

23 Colorado delineates “the organization and structure of county 

government” as part of a more general enumeration of home 

rule competencies (see Colorado Constitution, Art. XIV, $15(1)). 

24California Constitution, Art. XI, $5; Colorado Constitution, 

Art. XX, $6; Florida Constitution, Art. VIII, $1(9) (counties 

have all powers of local self-government), Art. VIII, $2@) (Ci- ties); Georgia Constitution, Art. IX, $11, para. I1 (cities); Illi- nois Constitution, Art. VII, $6(a); Iowa Constitution, Art. 111, 

$38A (cities) and $39A (counties); Kansas Constitution, Art. 

12, $5(b); Louisiana Constitution, Art. VI, $5(E); Maine Con- stitution, Art. VIII, Part Second $1; Michigan Constitution, 

Art. VII, $2; Ohio Constitution, Art. XVIII, $3; Oregon Con- stitution, Art. VI, $10; Rhode Island Constitution, Art. 

XXVIII, $1; West Virginia Constitution, Art. VI, 539(a); Wis- consin Constitution, Art. XI, $3; and Wyoming Constitution, 

Art. 13, $l(b). 

25 Sho Sato, ” ‘Municipal Affairs’ in California,” Calqomia Law 

Review 60 (June 1972): 1055, 1079-1081. 

26 Ibid., pp. 1082-1090. 

27 City of Oakland v. Williams, 15 Cal. 2d 542, 103 €! 2d 168 (1940). 

Connecticut Advisory Commission on Intergovernmental Re- lations, Defining Statewide v. Local Concerns: Can I1 Be Done 

and Is If Necasay? (Hartford, 1989). 

29LOuisiana Constitution, Art. VI, Part I, $6. 

30 Georgia Constitution, Art. IX, $11, para. I(a); Michigan Con- stitution, Art. VII, $22; New York Constitution, Art. IX, 

$2(c)(i); and Rhode Island Constitution, Art. XXVIII, 52. 

31 Maryland Constitution, Art. XI A; Nebraska Constitution, 

Art. XI, §z Nevada Constitution, Art. VIII, 38; Oklahoma 

Constitution, Art. XVIII, $(3Xa); Utah Constitution, Art. XI, 

$5(a); and Washington Constitution, Art. XI, $10. 

32 Oregon Constitution, Art. XI, $2 and Texas Constitution, Art. 

11, $5. 

33 Alaska Constitution, Art. X, 51; Connecticut Constitution, 

Art. X, 51; Massachusetts Constitution, Art. 11, 56; Missouri 

Constitution, Art. VI, $19(a); Montana Constitution, Art. XI, 

$6; New Hampshire Constitution, Art. I, $39; New Mexico 

Constitution, Art. X, $6D; North Dakota Constitution, Art. 

VII, $1; Pennsylvania Constitution, Art. IX, $Z and South Da- kota Constitution, Art. IX, 52. 

34Colorado Constitution, Art. XIV, $15(1). 

35Tenne~ee Constitution, Art. XI, 59. 

“South Carolina Constitution, Art. VIII, $11. 

37 South Dakota Constitution, Art. IX, $2. 

38 See Frank S. Sengstock, Exfratemtorial Powers in the Metmplitan Area (Ann Arbor, Michigan: Legislative Research Center, 

1962); City of Pueblo v. Flanders, 122 Colo. 571,225 E2d 832 

(1950); Marcus v. Baron, 57 N.Y. 2d 862, 442 N.E. 2d 437 

(1982); Comment, “The Exercise of Extraterritorial Powers by 

Municipalities,” University of Chicago Law Review, Vol. 45 No. 

1, 1977, p. 151. 

39 Frank S. Sengstock, Antieratioti: A Soliition to the Mettvpolilan 

Area Problem (Ann Arbor, Michigan: Legislative Research 

Center, 1960); Robert R. Ashcroft and Barbara Kyle Balfour, 

“Home Rule Cities and Municipal Annexation in Texas: Re- Cent Trends and Future Prospects,” st. Mary’s Law Journal 15 

(Summer 1984): 519; Independent School District No. 700 v. 

City of Duluth, 170 N.W. 2d 116 (Minn. 1969). 

4o City of Douglas v. Juneau, 484 I! 26 1040 (Alaska, 1971). 

41 See U.S. Advisory Commission on Intergovernmental Rela- tions (ACIR), A Handbook for Interlocal Agreements and Contmcts (Washington, DC, 1967); Comment, “Interlocal 

Cooperation: The Missouri Approach.” 

42See John Dewey, The Public and Its Problems (Athens, Ohio: 

Swallow Press, 1985); Vincent Ostrom, Charles M. Tiebout, 

and Robert L Warren, “The Organization of Government in 

Metropolitan Areas: A Theoretical In uiry,” American Politi- cal Science Review 55 (December 1968 831. 

43 Colorado Constitution, Art. XX, $6 (1902) and Washington 

Constitution, Art. XI, $10 (1889). 

44 Ohio Constitution, Art. XVIII, $4, $5 (1912) and Michigan 

Constitution, Art. VII, $24. 

45New York Constitution, Art. IX, 52(cx7),(10). 

&Florida Constitution, Art. VIII, $2@). 

47City of Miami Beach v. Fleetwood Hotel, Inc, 261 So. 2d 801 

ma., 1972); Fisher v. City of Berkeley, 37 Cal. 3d 644,693 E 26 

261 (1984). 

For example, Pennsylvania Constitution, Art. IX, $2. 

49Fi~her v. City of Berkeley, 37 Cal. 3d 644,693 I? 26 261 (1984). 

See, generally, Louis L Jaffe, Judicial Control of Administmfive Action (Boston: Little, Brown and Company, 1965). 

51 Arizona Constitution, Art. XIII, $5 and Oklahoma Constitu- tion, Art. XVIII, $6. 

52Arizona Constitution, Art. XIIT, 57. 

53 South Carolina Constitution, Art. VIII, 516. 

54 Illinois Constitution, Art. VII, $60)(1),(2). 

55Texas Constitution, Art. 9, $549, 11-13. 

”California Constitution, Art. XI, $8. 

” City of Oakland v. Williams, 15 Cal. 2d 542,103 E 2d 168 (1940). 

”New York Constitution, Art. IX, $l(c). 

59Pennsylvania Constitution, Art. IX, $5. 

WJ Florida Constitution, Art. VIII, 54; Illinois Constitution, Art. 

VII, $10; Missouri Constitution, Art. VI, $l4,516,$30(a); and 

Pennsylvania Constitution, Art. IX 535-7. 

61 Harvey Walker, “Toward a New Theory of Municipal Home 

Rule,” Northwestem University Law Review 50 (May 1955): 571. 

62 Sands, Libonati, and Martinez, Local Government Law, Vol. 4, 

$23.02, 525.01. 

63 The state totals given in this paragraph are taken from ACIRs 

1992 report, pp. 38-41. 

Colorado Constitution, Art. XX, 56(e),(g); Illinois Constitu- tion, Art. VII, $6(a); Kansas Constitution, Art. 12, §S(b)(tax); 

LouisianaConstitution, Art. VI, 530; Maine Constitution, Art. 

VIII, Pt. Second $2 (industrial development bonds only); 

Michigan Constitution, Art. VII, $2,921; New York Constitu- tion, Art. IX, 52(c)(4),(8); Utah Constitution, Art. XI, $5(a),(d); 

and Wyoming Constitution, Art. 13, $l(c). 

6510wa Constitution, Art. 111, $38A, 939A; Massachusetts Con- stitution, Art. I1 $7,(2),(3); Rhode Island Constitution, Art. 

XXVIII, $5; and Tennessee Constitution, Art. XI, 59. 

66 See, for example, Howard Lee McBain, 7he Law and Practice 

of Miuiicipai Home Rule (New York Columbia University 

Press, 1916). 

67 Weekes v. City of Oakland, 21 Cal. 3d 386,579 €? 2d 449 (1978) 

(occupation and business tax measured by gross receipts); St. 

Louis v. Sternsberg, 69 Mo. 289 (1879); Zielonka v. Carrell, 99 

OhioSt. 220,124N.E. 134(1919)(occupation tax); Multnomah 
Kennel Club v. Department of Revenue, 295 Or. 279,666 F! 2d 

1327 (1983) (power to impose business income tax implied out 

of grant of power over matters of “county concern”) 

City and County of Denver v. Sweet, 329 P. 2d441 (Colo. 1958) 

Carter Carburetor Corp. v. City of St. Louis, 203 S.W. 2d 438 

(Mo. 1947). 

69 C. Emory Glander and Addison E. Dewey, “Municipal Taxa- tion: A Study of the Preemption Doctrine,” Ohio State Law 

Journal 9 (January 1948): 72. 

70 Jon A. Baer, “Municipal Debt and Tax Limits: Constraints on 

Home Rule,” National Civic Review 70 (April 1981): 204. 

”Alaska Constitution, Art. 11, $19; California Constitution, Art. 

XI11 B, 510; Florida Constitution, Art. VII, Sec 18; Hawaii 

Constitution, Art. VIII, $5; Louisiana Constitution, Art. VI, 

$14; Maryland Constitution, Art. XI E, F; Michigan Constitu- tion, Art. IX, $2; Missouri Constitution, Art. X, $21, Art. Xn,$ 

2(b> New Hampshire Constitution, Art. 28(a> New Mexico Con- stitution, Art. X, $8; and Tennessee Constitution, Art. II, $24. 

72ACIR, XX, pp. XX. 

73 Sands, Libonati, and Martinez, Local Government Law, Vol. 2, 

74 Ibid. 

75 Elrod v. Burns, 427 US. 347 (1976); Monell v. New York City 

Department of Social Services, 436 U.S. 658 (1978); Pickering 

v. Board of Education, 391 U.S. 563 (1968). 

76Cleveland Board of Education v. Loudermill, 470 US. 532 

(1985); Owen v. City of Independence, 445 U.S. 622 (1980). 

77 Patchogue-Medford Congress of Teachers v. Board of Educa- tion of Patchogue-Medford Union Free School District, 70 

N.Y. 2d 57, 510 N.E. 26 325 (1987); Texas State Employees 

Union v. Texas Department of Mental Health and Mental Re- tardation, 746 S.W. 2d 203 vex. 1987). 

7sAlaska Constitution, Art. XII, 57; Illinois Constitution, Art. 

XIII, $5; Michigan Constitution, Art. IX, $24; New York Con- stitution, Art. V, $7; See, also, Gauer v. Essex County Division 

of Welfare, 108 N.J. 140, 528 A. 2d 1 (1987). 

79 Florida Constitution, Art. I, $6, and New Jersey Constitution, 

Art. I, para. 19. 

City of Carmel-by-the-Seav. Young, 2Cal. 3d 259,466 F! 2d 225 

(1970); Stein v. Howlett, 52 Ill. 2d 570,289 N.E. 2d 409 (1972). 

’’ Peter J. Galie, 7heNew fink State Constitution (Westport, Con- necticut: Greenwood Press, 1991), p. 114; New YorkConstitution, Art. V, $9 (1894). 

ch. 10. 

82New York Constitution, Art. V, $6, and Ohio Constitution, 

Art. XV, $10. 

83LOui~iana Constitution, Art. X, $4, $10. Civil Service Commiss4Louisiana Constitution, Art. VI, 914. 

”Stephen L. Elkin, City and Regime in the American Republic 

“Hunter v. City of Pittsburgh, 207 US. 161 at 176-7 (1907). 

87 Virginia Constitution, Art. VII, $2. 

“See, for example, Mahan v. Howell, 410 U.S. 315 (1973). 

89 See Mancur Olson, Jr., The Logic of CollectiveAction, Rev. Ed. 

(New York Shocken Books, 1971). 

90See David 0. Sears and Jack Citrin, Tax Revolr (Cambridge, 

Massachusetts: Harvard University Press, 1985). 

91 See Citizens Committee to Recall Rim v. Board of Elections of 

City and County of Philadelphia, 470 Pa. 1,367 k 26 232 (1976) 

(recall provisions of home rule charter are unconstitutional). 

92 Tanis J. Salant, County Home Rule: Perspectives for DecisionMaking in Arizona (Tucson: University of Arizona, Office of 

sion of New Orleans v. Guste, 428 So. 2d 457 (La. 1983). 

(Chicago: University of Chicago Press, 1987), p. 176. 

Community and Public Service, 1988); Blake R. Jeffery, Tanis 

J. Salant, and Alan L Ekxoshok, County Government and 

Structure (Washington, DC: National Association of Counties, 

1989); David R. Berman, Lawrence L. Martin and Laura A. 

Kajfez, “County Home Rule: Does Where You Stand Depend 

on Where You Sit?” State and Local Government Review 17 

(Spring 1985): 232. 

93 Robert B. Hawkins, Jr., Self-Government by District: Myth and 

Reality (Stanford, California: Hoover Institution Press, 1976); 

Elinor Ostrom, Governing the Commons (New York 

Cambridge University Press, 1990); Elinor Ostrom, CrafringIrrigation Institutions: Social Capital and Development (Burlington, Vermont: Associates in Rural Development, 1990). 

94 Arizona Constitution, Art. XIII, $7. Virginia Constitution, 

Art. VIII, $7; School Board of the City of Richmond v. Parham, 218 Va. 950,243 S.E. 26 468 (1978). 

95ACIR, ”he 0l;qanization of Local Public Economies and Resi- dential Cornmiwiry Rrsociations: Private Governmentsin the In- tergovernmental System? (Washington, DC, 1987 and 1989); 

Joseph E Zimmerman, State-Local ReZations: A Partnersl2ip 

Approach (New York Praeger Publishers, 1983); and William 

G. Colman, State and Local Government and Public-Private 

Partnerships (Westport, Connecticut: Greenwood Press, 1989). 

96 Jeffrey L Pressman and Aaron Wildavsky, Implementation, 3d 

Erl. (Berkeley: University of California Press, 1984) pp. 220-223. 

97 Record of Proceedings, Sixth Illinois Constitutional Conven- tion, p. 1621, as quoted by Daniel R. Mandelker, Dawn Clark 

Netsch, Peter W. Salsich Jr., and Judith Welch Wegner, State 

and Local Goveninierit iri a Federal System, 3d ed., (Charlottesville, Virginia: The Michie Company, 1!990), p. 134. 

98D~nald S. Lutz, “The United States Constitution as an Incomplete Text,” Annals of the American Academy of Political and 

Social Science 496 (March 1988): 23,27. 

99 Gordon L. Clark, Judges and the Cities, Interpreting Local Au- tonomy (Chicago: University of Chicago Press, 1985); Gerald 

Frug, “The City as a Legal Concept,” Harvard Law Review 93 

(April 1980): 1059. 

loo Fragley v. Phelan, 126 Cal. 383; William C. Jones, “Municipal 

Affairs in the California Constitution,” Calvoniia Law Review 

1 (January 1913): 132, 132-134. 

“‘Alaska Constitution, Art. X, $1; Illinois Constitution, Art. 

VII(m), 96; Iowa Constitution, Art. 111, $38A, 338B; Kansas 

Constitution, Art. 12, $4(d); Michigan Constitution, Art. VII, 

$34; Montana Constitution, Art. XI, $4(2); New Jersey Consti- tution, Art. Iv VII, para. 11; New Mexico Constitution, Art. X, 

$6; New York Constitution, Art. IX, $3(c); South Carolina 

Constitution, Art. VIII, $17 South Dakota Constitution, Art. 

IX, 92; and Wyoming Constitution, Art. 13, $l(d). 

lo2Florida Stat. 166.021(2); City of Miami Beach v. Fleetwood 

Hotel, Inc., 261 So. 26 801 (Ha. 1972) (Florida Constitution, 

Art. VIII, $2). 

Texas Constitution, Art. XI, $5. 

lo4 Millard H. Ruud, “The Legislative Jurisdiction of Texas Home 

Rule Cities,” Terar Law Review 37 (June 1959): 682; Ashcroft 

and Balfour, “Home Rule Cities and Municipal Annexation in 

Texas,” p. 5 19. 

Io5 Gerald Benjamin, “The Political Relationship,” in Gerald 

Benjamin and Charles Brecher, eds., The Two New Yonks: StateCity Relationships in the Changing Federal Sysrem (New York 

Russell Sage Foundation, 1988) p. 146. 

lo6Liberati v. Bristol Bay Borough, 584 l? 2d 1115 (Alaska, 1978). 

Io7 State v. Hutchinson, 624 P. 2d 1116 (Utah, 1980). 

Io8 William D. Valente, Local Government Law (St. Paul, Minnesota: West Publishing Company, 1987), p. 67; City of Grass 

Valley v. Walkinshaw, 34 Cal. 595, 212 l? 894 (1949); Bazell v. 

City of Cincinnati, 13 Ohio St. 26 63, 233 N.E. 26 864 (1968); 

U.S. Advisory Commission on Intergovernmental Relations 21 
Bearcisley v. Darlington, 14 Wis. 2d 369,111 N.W 26 184 (l%l). 

For the view that Dillon’s Rule is on its my out, see Richard Briffault, “Our Localism: Part I-The Structure of Local Govem- ment Law,” Columbia Law Review W (January 1990): 8. 

The chief protagonists in this debate are Richard Briffault and 

Gerald Frug. 

“‘Richard Briffault, “Our Localism: Part 11-Localism and Le- gal Theory,” Columbia Law Review 90 (March 1990): 440. 

’’’ Gerald Frug, “The City as a Legal Concept.” 

‘12 William C. Jones, “Municipal Affairs in the California Consti- 

‘13 Sears and Citrin, Tmc Revolt. 

‘14 Stanley v. Department of Conservation and Development, 284 

“’North Carolina Constitution, Art. V, 59. 

‘16 Clark, Judges and the Cities, Interpreting Local Autonomy, p. 6. 

tution.’’ 

N.C. 15, 199 S.E. 26 641 (1973). 

Commission on Constitutional Revision, 77ze Constitution of 

Virginia (Charlottesville, Virginia: The Michie Company, 

1969), p. 228. 

I18A.E. Dick Howard, Commentaries on the Constitution of Vir- ginia (Charlottesville: University Press of Virginia, 1974), Vol. 

Talbot D’Alemberte, The Florida State Constitution (Westport, 

Connecticut: Greenwood Press, 1991), p. 119. 

‘20 Elmer Gertz and Joseph I? Pisciotte, CharterforaNewAge(Urbana: University of Illinois Press, 1980) pp. 248-260. 

12’ John I? Wheeler, Jr., and Melissa Kinsey, Magnificent Failure 

--The Maryland Constitutional Convention of 1967-1 968 New 

York: National Municipal League, 1970), p. 203. 

122 Gertz and Pisciotte, Charter for a New Age, p. 328. 

123 ACIR, State Constitutional and Statutory Restrictions upon the 

Structural, Functional, and Personnel Powers of Local Govem- ment (Washington, DC, 1962), p. 79. 

2, pp. 811-812. 

124 Ibid., p. 80. 

22 U.S. Advisoly Commission on Intergovernmental Relations 
Part /I 

The Historical Framework: 

Toward a Legal Theory 

of Local Government Autonomy 

US. Advisory Commission on Intergovernmental Relations 23 
24 U.S. Advisoly Commission on Intergovernmental Relations 
Chapter 3 

The Historical Legacy 

This chapter has two objectives. The first is to review 

briefly the classical and medieval European experience of 

local government and the English antecedents of American local government. Ideas drawn from the European experience played a role in the legal development of local 

government in the United States, especially during the 

nineteenth century when legal scholars looked to Europe 

for precedents. The founding and development of local 

government, however, particularly its practices, were 

deeply influenced by Americans’ understanding of their 

biblical heritage and their own experiences in actually establishing local governments in North America.’ 

Secondly, the chapter is an examination of the historical contribution of early state constitutions to local government and autonomy. This second objective involves a 

detailed discussion of the tensions between state and local 

government that developed in America from the colonial 

period to the framing of the ‘home rule’ provisions of the 

Missouri Constitution in 1875. 

Particular emphasis is placed on the role that state 

courts have played in either facilitating or hindering a 

policy of local self-government. This survey shows how a 

tradition of “localism” developed in America, despite the 

position of the state as the legally dominant partner. 

A common legal view of the relationship between 

state and local governments has emphasized: 

(1) The hierarchical form (i.e., the state is at the 

apex of a power pyramid and local governments are at the base); 

(2) The monopolization of power (i.e., power 

flows from the state to localities); and 

(3) Centralization (i.e., state institutions promulgate the rules for local government action)? 

The forces of localism, however, have helped shape a 

reevaluation of the role of local government autonomy in 

the American political system. 

U.S. Advisory Commission on In1 

Classical Roots: Greece and Rome 

The framers of America’s state and federal constitutions drew in part from the legacy of classical antiquity in 

their search for concepts and examples that could shape 

their work.’ In addition to the classical heritage, James 

Madison’s records of the Constitutional Convention of 

1787 in Philadelphia show that the Bible was quoted and 

referenced more frequently than any other individual 

work by the delegates to the C~nvention.~ 

The Greek city-states, in associating with each other 

for the purposes of their own defense and, sometimes, aggression, developed a concept termed “autonomy,” which 

they used in treaties to characterize what were for them 

external power relationships. Autonomy portrayed a 

world of competing and collaborating city-state^.^ It defined varying degrees of political independence from their 

league allies? 

It is with the rise of Roman power and its conquests, 

however, that a developing notion of “state-local” relations begins to appear in the West. This issue became ever 

more pressing on the minds of Roman thinkers and political actors as the Roman state evolved from republic to empire.’ The predominant forms of local governments 

during this period are classified according to their origin, 

character, and juridical relation to Rome, as colonia, municipium, praefectura, and saltus.8 

The colonia was a city authorized by Rome, made up 

of settlers who were Roman citizens and “autonomous in 

the matter of local affairs.’w The rnunicipiurn resulted 

from the incorporation of a conquered town into the Roman state, and its degree of autonomy was based on the 

charter granted by the Roman state.’” Praefecturu was a 

“generic term applicable to any community which lacked 

the full right of self-government.”” It was, in effect, anadministrative arm of the Roman Empire.12 Saltus was an estate directly administered by the emperor with no 

self-government .13 

:ergovernmentaI Relations 25 
Another nomenclature emerged with Roman expansion. Cities in lands outside Italy were classified according 

to whether or not their internal affairs were subject to the 

supervision and control of the Roman governor of the 

province and whether or not they were obligated to pay 

tribute to Rome. 

Civitafes liberae et immUnes were both granted immunity 

from tribute and afforded a variety of functional privileges 

(e.g., to govern under their own laws, to administer justice in 

local courts, to coin money, and to hold land free from the 

provincial land tax).14 If these privileges originated in a treaty 

(civitas fmdmata), they were regarded as irre~ocable.~~ 

Most cities, however, looked to a law or Senate decree 

applicable only to that city to fK the scope and limits of local 

prerogative. These cities (civitates sine fmdere liberae et immum) were unprotected against changes in Roman policy.16 

Gradually, the functional attniutes and prerogatives that 

differentiated free cities from tributary cities (civitates sripndm*ae) attenuated through changes in law and custom. Thus, 

a variety of enactments by the Roman people, the Senate, 

the emperor and the provincial governor authorized tributary cities to retain and administer their local laws, to operate 

local organs of government, to levy local taxes and to make 

 contract^.'^ Indeed, under the empire, the city of Rome itself 

was reduced to the same status as other cities.’* 

Municipal status in the early empire was expansive, 

predicated on a conscious imperial policy of promoting a 

robust practice of local self-g~vernment.’~ Itsresults have 

been described as follows: 

Municipal institutions spread far and wide until the 

empire became in great part an aggregate of 

city-states. In each of these, the citizens displayed 

an intense pride in public welfare, and endowed 

their native town with splendid monuments, buildrirgs; ~rrdg&&rq&~~~~~ scekaK2&mm%- 

and schools. Offices and honors were eagerly 

sought, and lavish contributions were made in attaining them. Public spirited citizens, civic pride, 

and keen uhan rivalries combined to produce a 

brilliant municipal life throughout the empire.2o 

Although the view that the Roman empire was a confederation of cities persisted into the fourth century 

the municipality primarily had become a medium to 

facilitate Rome’s collection of revenues.Z2 Rome interfered 

increasingly in municipal administration and established an 

elaborate bureaucratic machinery to superintend and control municipalitie~.~~ 

By the time of Justinian’s compilation of Roman law 

in 534 A.D., there was no doubt as to where the sovereignty of the Empire lay, despite a previous practice of lax control over what could be loosely termed “home r~le.”~~The 

Roman Empire brought forth a conception of the supremacy of the state.25 

The Civic Republic: Italian Medieval Cities 

The intellectual climate that fostered the American 

Revolution was clearly aware of the example of the Italian 

medieval city-states.26 The peculiar juridical status 

achieved by the Italian civitas demonstrates the conflict 

between an “ascending conception of law and government 

according to which law creating power may be ascribed to 

the community . . .” and a descending conception according to which “governmental authority and law-creating 

competency descend from one supreme organ.”27 

These cities existed in spite of what were by the 

Middle Ages generally accepted principles of Roman public law, which made the legitimacy of all forms of civic association contingent on Rome’s authority.28 

Italian jurists of the time, such as Bartolus and Baldus, 

sought to reconcile local claims of autonomy with the Roman 

public law doctrine. Bartolus (1313-1357) interpreted Roman 

law texts to focus on popular consent as the element from 

which both customary and statutory law derived their validity.” Given that the people could make law by tacit consent, 

they could do so, also, expressly by statute. Bartolus, therefore, recognized that the people had the power to constitute 

themselves as a civic community and to legislate concerning 

their own internal concerns without the consent of the emperor or pope.M As a result, city autonomy was both temtorially limited and subject to the authority of empire and 

Papacy. Of course, the civitas could also draw on a parallel 

set of rights, privileges, powers, and immunities established 

by imperial charters or papal concessions. 

Baldus (c. 1327-1400) went further and made a claim 

for independence from the Papacy and irnpenal rule. As 

Joseph P. Canning says of Baldus, “natural reason, in the 

form of its product, the ]us gentium, not only brought the 

city-populi into existence, but endowed them with autono- 

~DDS~DWEX~ afseJJ~mprnrnent without the need for rbe 

authorization of a superior.”” There is no question that 

the cradle of secular Renaissance thinking about a rising 

individualism was to be found in the Italian city-states of 

the late fourteenth and early fifteenth centuries. 

As historian Susan Reynolds points out, the vibrancy 

of local collective action to run the daily affairs of both 

townspeople and rural communities, such as they were, 

abounded.32 

The immediate precursor of American local government, however, can be found in England. The history of 

English local government is characterized by a colorful 

26 U.S. Advisory Commission on Intergovernmental Relations 
variety of institutional forms, such as towns, boroughs, 

cities, manors, parishes, and c0unties.3~ Nevertheless, 

there was no clearly defined or anciently rooted doctrine of local self-government in England.34 What English history discloses from the time of the Norman 

conquest until the Glorious Revolution is something 

more of a patchwork of hard-won privileges, liberties, 

and charter rights.35 This patchwork of local government 

foreshadows the complex and intricate relationshipbetween 

the provincial legislatures and local government that 

shaped the American colonial experience. 

Susan Reynolds’ survey of the emergence of the English local polity during this period deemphasizes the 

causal significance of the Norman Urban liberties were granted piecemeal, and vaned from town to 

town. Towns began to purchase from the king local autonomy over the collection of revenues due the royal exchequer (Erma An analysis of clauses contained in 

royal charters extant at 1150 A.D., for example, reveals 

the following additional liberties: 

A distinctive form of land tenure (burgage 

tenure) largely free from feudal encumbrances; 

Mercantile privileges exempting townsmen 

from interlocal tolls and fees that hampered 

trading; 

Recognition of borough custom as a source of 

binding law; and 

Allowing townsmen freedom to form 

guilds.38 

Thereafter, local governments began to petition formally and receive additional grants of individual local prerogatives, creating the patchwork of state-local relations 

that was to characterize England at the turn of the sixteenth century.39 

With the advent of the Stuart monarchy and the developing political struggle with the Parliament, there 

arose a need to coordinate and systematize an amorphous local government structure.a As a result, by 1650, 

localities could be classified as administrative institutions, which “the sovereign could create, transform or 

abolish in light of his own free judgment as to their util- 

 it^."^^ 

The escalating tension between king and Parliament, 

which resulted in the Glorious Revolution of 1688, encompassed state-local relations as well.42 After their successful rise to preeminence, the Parliament established local 

government in England as an essential element of government admini~tration.4~ 

It must be remembered that local government in the 

American colonies had to cope with two competing external governments. First, there was the relationship of the 

colonies to in which the colony itself was 

viewed as local government within the terms of the Ernpire. Second, there was the relationship of local government to the colony. 

The Relationship of Colonies to England 

Settlement of the American colonies brought with it, 

at least after a while, a need for the orderly organization of 

daily affairs. As such, colonial charters and royal commissions specified the range of powers to be exercised by 

settlers. Typically, clauses in the royal commissions of colonial governors empowered them “to summon and call 

General Assemblies of the . . . Freeholders and Planters 

within their Government, according to the Laws and 

Usages of Our said Province” and to exercise, with colonial assemblies, “full Power and Authority to make, constitute, and ordain Laws, Statutes and Ordinances for the 

Public Peace, Welfare and good Government of Our said 

Province, and of the People and Inhabitants thereof,”4s subject to the qualification that colonial enactments could “not 

be repugnant” to the laws and statutes of Great Britain.46 

The king and the Parliament were occupied during 

the seventeenth century in a constant battle overprerogative. Although this battle, to a certain extent, involved the 

developing American colonies, they were left free of overbearing administration from London. That was all to 

change, starting in 1696 with the creation of the Board of 

Trade and Plantations, a subagency of the Privy Council. 

During the eighteenth century, the impact of parliamentary rule @articularly through this board) began increasingly to be felt. As early as 1754, in what was known as the 

Albany Plan, submitted by Benjamin Franklin, the colonies had responded with a proposal to develop a more formal relationship between Great Britain and America.47 

Jack €? Greene neatly summarizes the situation facing 

colonial governments by 1760: 

Notwithstanding this lack of theoretical resolution or agreement as to the actual and customary 

distribution of power within the empire, the empire continued to function in practice with a clear 

demarcation of authority, with virtually all internal matters being handled by the colonial governments and matters of general concern by the 

metropolitan government.& 

That the events after 1761 broke this delicate balancing 

U.S. Advisoty Commission on Intergovernmental Relations 27 
act and reduced the parties to ‘Tit principles” is fortuitous 

for American local government. After 1776, the previous 

question of Great Britain’s relationship to the Colonies now 

had to be resolved in the newly independent American states 

as the state’s relationship to local governments. 

The Relationship 

between Colony and locality 

Variety rather than uniformity characterized the relationship between provincial and local government in colonial America.& An examination of this relationship 

between colonial government and its localities runs the 

risk of failing to distinguish between a juridical autonomy 

in local government and the construction and achievement of a corporate sense of local identity.50 Juridical autonomy involves the extent to which a locality can make 

decisions over a variety of local matters that are presumed 

to be within its prerogative. 

The crucial question was whether or not a colony was 

empowered, in its relation to Great Britain, to establish 

subgovernments and, if so, what kinds. 

Much has been made of the Town Law of 1636 passed 

by the General Court of the Massachusetts Bay Colony?’ 

A perusal of its text, however, indicates “the strictly and 

traditionally circumscribed nature of town powers:”52 

Whereas particular townes have many 

things, which concerne only themselves, and the 

ordering of their owne affaires, and disposeing of 

business in their owne towne, it is therefore ordered, that the Freemen of every towne, or the 

major parte of them, shall onely have power to 

dispose of their owne lands, and woods, with all 

the previlidges and appurtenances of said townes, 

to graunt lotts, and make such orders as may concerne the well ordering of their owne townes, not 

repugnant to the lawes and orders here established by the General1 Court; as also to lay mulks 

and penaltyes for breach of theis orders, and to 

levy and distreine the same, not exceeding the 

some of. . . [20 shillings]; also to chuse their owne 

particular officers, as constables, surveyors for 

the highwayes, and the like; and because much 

business is like to ensue to the constables of severa11 townes, by reason they are to make distresses, and gather Fynes, therefore that every 

towne shall have two constables, where there is 

neede, that soe their office may not be a burthen 

unto them, and they may attend more carefully 

upon the discharge of their office, for which they 

shalbe lyeable to give their accompts to this Court 

when they shalbe called thereunt~.~~ 

The General Court was legally circumspect in creat28 

ing borough corporations because to have attempted to do 

so “would have been flagrantly illegal, because the Massachusetts Company, as a corporation, had no authority to 

create other corporations.”54 

Nonetheless, the existence of self-created, self-defmed 

local polities in colonial America is ~ndeniable.5~ Many 

scholars believe that the dominant political culture in colonial America was localist and decentralized.% However, 

these practices took place within an overarching framework that required some kind of royal warrant from the 

colony or benign neglect allowing local power to develop 

and be exercised. 

Sometimes, local government was mandated, as in the 

1669 Fundamental Constitutions of Carolina, drafted by 

John Locke, which contained a detailed blueprint for local 

government, including incorporated towns?’ A proprietary charter sometimes expressly granted the competence to incorporate cities, towns, and boroughs, as did the 

1681 charter to William Penn.58 Sometimes, a local government unit was created directly by royal charter, as was 

the borough of Westchester, New York, in 1696.59 

The lack of express powers, however, did not prevent 

colonial assemblies from enacting legislation recognizing 

and empowering local communities to act in town meetings for purely local matters, as the Massachusetts Town 

Act shows. Nevertheless, colonial legislation was increasingly subject to oversight by the Board of Trade and Plantatiowm That board began to monitor the legislative 

output of colonial assemblies and, in so doing, sought the 

advice of the king’s counsel on questions of law?’ 

As an example of the imperial government’s attitude 

toward the powers of colonial legislatures, the first special 

counsel to the Board of Trade was asked in 1723 to decide 

whether an act of the South Carolina Assembly purporting to incorporate Charlestown should be sustained 

against objections by local inhabitants>* He had no objection to the grant of privileges and powers “usually granted 

to new erected corporations.” Nevertheless, he recommended disapproval of the enactment both because it 

created a closed oligarchic municipal government and because it was approved by the colonial legislature in apparent defiance of the majority of the inhabitants of 

Charle~town.6~ This opinion is an example of the willingness Great Britain had to pay deference in the colonies to 

the wishes of local consent and respect broad participation 

in local elections. 

Two institutional devices for assuring the integration 

of local polities and the colony become significant. The 

first was the practice of affording local governments the 

corporate right to elect a representative to the colonial 

legislature. In Massachusetts, for example, each town had 

the right to elect its own representative to the General 

Co~rt.~ Each Virginia county became a constituency of 

the House of Burges~es.6~ In Maryland, the countydelegaU.S. Advisory Commission on Intergovernmental Relations 
Proprietors’ meetings, which had jurisdiction 

over the use of town land and unreviewable 

discretion as to whether or not to confer the 

status of proprietor on newcomers; 

Freemen’s meetings at which deputies to the 

General Assembly and statewide officers were 

elected (the town selectmen possessed formal 

power to admit to the status of freemen); 

Militia meetings mandating all men between 

the ages of 16 and 60 to bear arms, to take 

tions to the provincial assembly gained power to pass laws 

for individual counties.66 This conception of local government privilege is at the base of what is commonly described today as “home rule.” 

The second device was the right of local electors to instruct their delegates to the colonial 1egi~latut-e.~~ A delegate was bound to abide by the decisions of his own 

community in Pennsylvania and Virginia, as well as in the 

New England 

local Self-Government in Colonial America 

Whatever the legal status of local government, the 

custom and practice of local self-governance was strong 

and pervasive.69 Three distinctive types of local government emerged in the colonies: 

(1) A mercantile community mirroring the structure and function of the English borough;7” 

(2) A covenanted community founded on moral 

principles and devoted to the tasks of social 

control and civic betterment;71 and 

(3) The predominantly agricultural county governed by an enlightened, property-owning 

elite formally appointed by the colonial governor but self-governing and self-perpetuating in practice.72 

A narrow focus on that which is typical, however, neglects the inevitable irregularities. For example, Philadelphia’s municipal corporation was governed by a closed, 

self-perpetuating elite preoccupied with matters of trade 

and commerce.73 Public demands for increased municipal 

services were rejected by the corporation. The provincial 

assembly sometimes responded to these demands by establishing separate statutory authorities to perform such 

functions as laying out and maintaining In areas 

where the assembly failed to establish a statutory authority, voluntary associations, such as fire fighters, emerged.7S 

Although the Connecticut town was undoubtedly a 

covenanted community, it also was far from being a simple 

consolidated local government. By 1733, all towns in Connecticut held; 

part in regular training exercises, and to elect 

their own officers, subject to confirmation by 

the state; and 

(4) Town meetings in which inhabitants who 

were neither freeman nor proprietors also 

had a 

In addition, local congregational societies were separately established in a defined territory often coextensive 

with the town. They were empowered to levy and collect 

taxes for the support of the minister, the meetinghouse, 

and the scho01.’~ Because these societies were the political arm of the local church congregation, eligibility for 

participation in society’s affairs depended on whether one 

had been admitted as a member of the church. 

County government in New York and Pennsylvania 

exhibited an intricate structure in which some officials 

were elected locally, some were nominated locally but appointed by the governor, some were appointed by the governor with the advice and consent of his council, and some 

were appointed by locally elected officials.7B 

The nature and extent of actual local autonomy depended on both formal authority and local circumstance. 

During the course of the eighteenth century, duly constituted municipal corporations, like Philadelphia and New 

York, exhibited a tendency toward exercising the specifically enumerated rather than the broad general powers 

granted in their chartersm As Hendrik Hartog observes: 

chartered power was implicitly viewed not as a 

source of innovation but as a restraint against externally imposed change. Regulations and other 

invocations of public power were valid only insofar as they rested on the consent of a local public 

or on absolute property rights.8O 

As a practical matter, the autonomy available under 

the Massachusetts Town Law to “make such orders as may 

concerne the well ordering of their owne townes, not repugnant to the laws and orders here established by the 

General Court” may well have exceeded that at the disposal of the mayor and council of an incorporated municipJi! fuV of dkrenfen dfi& ko chaflenge crf‘y ha& 8/ 

Colonial legislatures often responded to local claims for 

more autonomy by granting exemptions from general law or 

by delegating greater discretionary powers to town officials.** 

There were instances, also, of laws regulating municipal affairs and imposing obligations on municipal official~?~ No protected sphere of local autonomy can be 

discerned from a detailed examination of the hodgepodge 

of provincial legislati~n.~~ Rather, there is a repetition of 

the uneasy relationship between the central government 

and localities, translated into the competing claims of 

province and local government. 

U.S. Advisory Commission on Intergovernmental Relations 29 
Local Autonomy 

in the First State Constitutions 

Local government was clearly in the minds of the 

leading figures of the day when they formulated the first 

state constitutions. 

For example, a publication issued in Philadelphia containing the first printing of the Declaration of Independence 

in book form included an extensive set of recommendations for an intergovernmental separation of powersbased 

on a model provided by the free Saxon communities of antiq~ity.’~ The author urged that the first care of the approaching state constitutional convention ought to be “to 

incorporate every society of a convenient extent into a 

Township, which shall be a body politic and corporate by 

itself. . . .”86 Massachusetts, in its constitution of 1780, dealt 

specifically with the issue of towns and their incorporation. 

Many framers of the state and federal constitutions 

were adherents of a theory that local self-government had 

its origins in the Teutonic polities described by lhcitus in 

the first century A.D.87 Though scholars have discounted 

its validity with regard to the American experience of local 

government, the Teutonic theory was revived in the late 

nineteenth century in the United States and influenced 

Judge Thomas Cooley of Michigan, who advocated a 

theory of the inherent right to local self-government in an 

1871 concurring opinion of the Michigan Supreme Court. 

Thomas Jefferson, for instance, believed that “there 

ought to be four centers of republican government in the 

country: the general federal republic for all foreign and 

federal concerns; the state republics for matters which relate to the citizens of each state exclusively; the county republics for the duties and concerns of the counties; and 

‘ward republics, for the small, and yet numerous and interesting concerns of the neighborhood’.”s8 

Thus, careful scrutiny of early state constitutions shows 

that they were not silent on the subject of local government. 

The state constitutions (and, subsequently, the federal) emphasized the predominance of the legislative branch 

of government.89 At the time of the American Revolution, 

“municipal charters were almost invariably granted by the 

executive rather than the legislature,” following the British custom of royal prerogative in granting such charters?O 

Under the new state constitutions, however, this power 

was transferred to the legislative branch. For example, Pennsylvania expressly granted its General Assembly the power 

to grant charters and to constitute towns, boroughs, cities, 

and counties.q1 The executive’s role was confined more specifically to the administration of the state. 

As such, the early state constitutions curtailed the executive’s powers to “only such limited powers as were expressly conferred on him; while the legislature became the 

repository of all powers not expressly or impliedly denied.’e2 Even so, the question of the incorporation of municipalities was politically controversial in some states, 

particularly with regard to representation in the state legislature. The Massachusetts Constitution of 1780 was expressly amended to make clear that the “general court 

shall have full power and authority to erect and constitute 

municipal and city governments” and “to grant to the inhabitants thereof such powers, privileges, and immunities 

. . . as the general court shall deem necessary or expedient 

for the regulation and government thereof.’w3 During the 

nineteenth century, the absence of such an express constitutional provision led to the judicial invalidation of laws 

delegating broad powers to cities in several 

As to local charters already granted, the states were 

usually content to continue their validity. The Declaration 

of Rights of the Maryland Constitution confirmed Annapolis’ charter rights, privileges, and benefits subject to future 

alteration by the legi~lature.9~ New York’s Constitution 

confirmed the continuing validity of royal charters?6 

Finally, and probably the most important aspect of 

state-local relations to emerge from the first constitutions 

in many states, local government units were given a corporate right of representation in the legislature?’ For example, the 1776 North Carolina Constitution gave each 

county equal representation in the Senate and allocated 

two seats in the lower house to each county and one to 

each town?’ Similar schemes existed in Georgia, Maryland, South Carolina, and VirginhW Town representation 

in the lower house of the legislature was entrenched in the 

constitutions of Massachusetts and New Hampshire.’Oo 

Connecticut and Rhode Island also used towns as the basis 

of apportionment.lol 

The Declaration of Rights provisions of the Massachusetts, New Hampshire, and North Carolina constitutions institutionalized an even more far-reaching 

prerogative of localism, with the right of the locality to 

give binding instructions to its corporate representative to 

the state legislature.102 Eight of the eleven original colonies, creating constitutions between 1776 and 1780, provided for the election of local officials. 

In addition, the sharp distinction between private and 

public corporations did not exist during this period.lo3 

Hence, the North Carolina Supreme Court held that a 

corporation erected for a public purpose qualified forprotection against an uncompensated state legislative taking 

of its “property,” “privileges,” and “libertie~.”’~~ Strong 

dicta in three U.S. Supreme Court cases indicated that 

public corporations could possess property and even contractual interests, which the state legislature could not divest without local consent.1os 

30 U.S. Advisory Commission on Intergovernmental Relations 
Thus, as corporate entities, local governments had a 

fhn existence in the structure of early state constitutions. 

Clearly, they had a role to play in the unfolding drama of 

American state government. 

ernment. . . . The people of Trempealeau seem to 

have governed themselves contentedly within a 

county “constitution” they had neither drafted 

nor ratified.”” 

Northwest Ordinance 

In a manner similar to the state legislatures, the Congress, under the Articles of Confederation, addressed the 

complicated issue of the “temtories” through the Northwest Ordinance of 1787. The ordinance established a 

method for dealing with territorial administration.Io6 

Section 7 of the ordinance authorized the territorial 

governor to “appoint such magistrates, and other civil officers, in each county or township, as he shall find necessary 

for the preservation of the peace and good order in the 

same.”lo7 The presence of 5,000 free male inhabitants in 

the temtory triggered a right “to elect representatives 

from their counties or townships to represent them in the 

general assembly” which, when organized, was empowered to regulate and define the “powers and duties” of local officials.lo8 Rrritorial legislatures soon created “a 

fabric of local governrnent.”lw 

The impact of the Northwest Ordinance on local 

self-government was extensive. Merle Curti points to this 

impact from the following description of Trempealeau 

County, Wisconsin: 

Self-government did not have to be created or 

recreated on the Trempealeau frontier-because 

it existed there already. We are confronted with 

the semantic absurdity . . . of the frontier being 

self-governing before it was settled. We find that 

the apparatus of county and township government was readily available when the firstcomers 

arrived, and that the county fathers promptly 

made good use of it. 

Wisconsin law regulating the kinds and duties of local officers, the collection of numerous 

taxes, and the expenditure of funds was (and still 

is) most specific. Trempealeau’s various officers 

spent nine-tenths of their time in meeting the requirements of a code emanating from Madison. . . Trempealeau carefully conformed. One looks in 

vain in Trempealeau for a frontier effort to circumvent a law defining county or township govIn states previously settled under the aegis of the 

Northwest Ordinance, state legislative omnipotence over 

the activities and affairs of local government was an historical, juridical, and practical reality. In the older states, historical and practical impediments to state legislative 

omnipotence muddied state-local relations. In these 

states, four elements of local government privileges and 

responsibilities came into play: 

~~ 

U.S. Advisory Commission on Intergovernmental Relations 31 

(1) Local custom and practice; 

(2) Community autonomy, particularly in New 

(3) Corporate status; and 

England; 

(4) Subordination to the legislative sovereign.”’ 

Dillon’s Rule 

Some observers believe that the legal doctrine that cities 

are subordinate to the state was developed only after the 

Civil War.112 Joan Williams’ careful reconstruction of case 

law in the leading jurisdictions of New York and Massachusetts in the early nineteenth century, however, offers 

persuasive evidence to the contrary.l13 This early case law 

displays the subjection of royally chartered municipalities 

to the will of the legislature in Maryland, Pennsylvania, 

and Virginia.l14 Much of what became Dillon’s Rule apparently derives from a line of Massachusetts cases decided before 1820. It stems from a theory concerning the 

juridical subordination of corporate entities to the sovereign, which is rooted in medieval law.115 

In some respects, however, it is possible to argue that 

local governments were less subject to the state per se 

than to the state constitution. From this argument, the 

state itself was subject to the constitution, though authorized by it to set rules and regulations for local government. 

The leading case that supports the view that Dillon’s 

Rule is embedded in early state legal thinking was Stetson 

v. k2mpton.116 This case concerned the corporate capacity 

of towns under a 1785 Massachusetts statute, which had 

conferred the status of “a body politic and corporate” on 

every town in the Cornmon~ea1th.l’~ This statute vested 

towns with the power to legislate for managing and ordering the “prudential” affairs of the town and to make “necessary” charges.118 

The plaintiff was a citizen of Fairhaven, Massachusetts. The case arose during the War of 1812 when the 

town, it appeared, was in imminent danger of enemy attack. A town meeting was held on August 2, 1814, during 

which residents voted to raise funds to pay the town militia 

and make other expenditures related to the immediate 
protection and defense of the town and its inhabitants. 

The plaintiff, who did not attend the town meeting, refused to pay. Consequently, the town’s assessors seized his 

property to collect his portion of the charges. The claimant then sued the town’s assessors for trespass, questioning whether the town had a “lawful right and authority, in 

their corporate capacity, to raise money, and to cause it to 

be assessed upon the polls and estates within the town, for 

the purpose ~tated.””~ 

Chief Justice Isaac Parker, speaking for the Massachusetts Supreme Judicial Court, cut through thecomplex 

colonial legacy of historical and political localism by asserting that towns are “the creatures of legislation,” which 

enjoy “only the powers expressly granted to them.”120 In so 

doing, Parker showed his concern to preserve not only the 

sovereign prerogatives of the legislature but also “to prevent the minority from being at the disposal of the majority” in the town.121 As a result, Parker denied that “a 

corporation of limited powers” could take upon itself a 

duty to defend against “an enemy in time of war” because 

that duty “is devolved upon the national government” by 

the Constitution of the United States.’22 

This rule of interpretation ultimately came to be 

known as Dillon’s Rule; named for Judge John Dillon of 

the Iowa Supreme Court, who established it firmly in a 

landmark 1868 case. This rule was refined in later Massachusetts caseslZ3 and was adopted in many states.124 

Chancellor James Kent formulated his version of the 

rule in his 1827 treatise on American law: 

As corporations are the mere creatures of 

law, established for special purposes, and derive 

all their powers from the acts creating them, it is 

perfectly just and proper that they should be 

obliged strictly to show their authority for the 

business they assume, and be confined in their 

operations to the mode, and manner, and subject 

matter pre~cribed.’~~ 

Kent’s formulation was cited as controlling in an 1863 

decision of the Iowa Supreme Court,lZ6 which Judge Dillon was bound to follow when he first enunciated the rule 

as Chief Justice of the Iowa Supreme Court: 

In determining the question now made, it 

must be taken for settled law, that a municipal 

corporation possesses and can exercise the following powers and no others: First, those granted 

in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential 

to the declared objects and purposes of the corporation-not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a 

power is resolved by the courts against the corporation-against the existence of the power.1z7 

Dillon further refined his views in subsequent editions of his treatise on the law of municipal corporations. 

He later wrote: 

The extent of the power of municipalities, 

whether express, implied, or indispensable, is one 

of construction. And here the fundamental and 

universal rule, which is as reasonable as it is necessary, is, that while the construction is to be just, 

seeking fmt of all for the legislative intent in order 

to give it fair effect, yet any ambiguity or fair, reasonable, substantial doubt as to the extent of the 

power is to be determined in favor of the State or 

general public, and against the State’s grantee. The 

rule of strict construction of corporate powers is not 

so directly applicable to the ordinary clauses in the 

charter or incorporating acts of municipalities as it 

is to the charters of private corporations; but it is 

equally applicable to grants of powers to municipal 

and public bodies which are out of the usual range, 

or which grant franchises, or rights of that nature, 

or which may result in public burdens, or which, in 

their exercise, touch the rights to liberty or property, or, as it may be compendiously expressed, any 

common-law right of citizen or inhabitant. . . . The 

rule of strict construction does not apply to the 

mode adopted by the municipality to carry into effect powers expressly or plainly granted, where the 

mode k not limited or prescribed by the legislature, 

and is left to the discretion of the municipal authorities. In such a case the usual test of the validity of 

the act of a municipal body is, whether it is reasonable? and there is no presumption against the municipal action in such cases.lZB 

There is no support in Dillon’s formulation for the 

mistaken supposition that it is a rule of strict construction, 

therefore, that a locality can do nothing for which a warrant cannot be found in the language of applicable law. Indeed, Dillon stated that a local government “may exercise 

all powers within the fair intent and purpose of their creation which are reasonably proper to give effect to powers 

expressly granted.”l= In that respect, Dillon’s Rule is better characterized as one calling for fair or reasonable construction of grants of power to localities, taking into 

account all relevant factors bearing on legislative intent, 

including the entire context of legislation pertinent to the 

asserted grant of power.130 

Should the search for the fair and reasonable intent of 

the legislature fail to resolve the matter, the next step is to 

determine whether the language of the grant is ambiguous 

or gives rise to a fair, reasonable, substantial doubt as to 

the extent of powers granted. When an ambiguity or substantial doubt is present, then the nature of the power 

32 U.S. Advisory Commission on Intergovernmental Relations 
granted is subject to scrutiny. If that power is out of the 

range of those normally or customarily devolved upon localities, or operates to confer a franchise or other monopolistic restraint on competition, or imposesburdens on the 

public (e.g., debt or taxation), or infringes on the liberty or 

property interests of individuals, then and only then is the 

grant of power to be construed strictly. 

btiny of every case cited by Dillon in support of his 

discussion reveals that his formulation is less restrictive 

than that which prevailed in most states, including his own 

Iowa decisions.131 For example, his discussion does not 

support the tactic adopted by judges in several states of 

narrow construction of broad legislative grants of power to 

10calities.l~~ Furthermore, Dillon adopted and extended 

the individual rights focus of Stetsan v. fimpton. In so doing, he artfully joined discourse about the attributes of 

sovereignty to discourse about individual rights characteristic of the liberal traditi~n.”~ 

An Increasing Role for the Judiciary 

The emergence of a rule of interpretation aimed as 

much at the state legislature as at local governments is 

characteristic of the transition in this period of state constitutional law from legislative dominance or omnipotence to an increased role for the judicial branch of 

government.134 An activist concept of judicial review, 

coupled with various state constitutional amendments 

placing procedural and substantive restraints on the legislat~re,l~~ accounted for: 

(1) Judicial protection of municipal property 

rights under the state constitution; 

(2) Judicial protection of the local treasury from 

some state-mandated expenditures; 

(3) Judicial development of the delegation doctrine to block broad grants of state legislative 

power to localities; 

(4) Judicial creation of the public purpose doctrine as a restraint on the power of state and 

local government to tax and spend; 

(5) Emergence of the doctrine of an inherent 

right to local self-government; 

(6) State constitutional prohibitions on special 

local laws affecting one jurisdiction only; 

(7) Insertion of the “ripper clause” (prohibiting 

the imposition of state-created organizations 

over the power of municipalities without accountability to the people of those municipalities) in state constitutions; and 

(8) Express state constitutional limits on the 

power to tax and to incur debt. 

Judicial Constraints 

on State Interference with local Autonomy 

During this period, American courts became active in 

both a positive and a negative manner regarding local government autonomy. Some judges sought to restrain state 

interference with local government powers; others restricted home rule authority. 

Noteworthy in its positive impact on local governments was Justice Joseph Story’s dictum in Dartmouth 

College v. Woodward, arguing that state legislative power 

did not encompass taking the private property of such corporations as “towns, cities, and 

Later, that view was adopted in Kent’s Commentaries. Kent stated that such entities “may also be empowered to take and hold private property for municipal uses, 

and such property is invested with the security of otherprivate rights.”137 Accordingly, state supreme courts invalidated state statutes purporting to divest municipalities of 

property held in their private or proprietary character 

without their 

At this time, several state supreme courts invalidated 

state statutes obligating municipalities to levy local taxes 

or to make expenditures for “purposes not of a municipal 

~haracter.”’~~ Thisline of cases invoked a variety of rationales based on creative readings of a miscellany of state 

constitutional provisions. In 1858, one court seized on the 

governmental-proprietary distinction in holding that a 

municipal corporation is not subject to the absolute control of the legislature when acting in its private capacity.’@ 

In another case, the Michigan Supreme Court emphasized that the state could require a municipality to levy 

taxes only for a local purpose, that is, a purpose in which 

the people of the political subdivision have “special and 

peculiar interests’’ such that “they should bear the burden 

rather than the state at large.”’41 In resolving another dispute, the Wisconsin Supreme Court found in 1872 that the 

taxing power could not be exercised &‘for purposes not of a 

municipal character without the consent of the 

Eventually, this judicially crafted restraint on state 

legislative prerogatives was entrenched in the constitutions of one-fifth of the states in the form of a provision 

forbidding the imposition of state taxes for local or municipal purposes.143 

Judicial Restraints on Home Rule 

Another set of cases from this period demonstrates 

that the same judicial activism also was employed to strike 

down efforts of the state legislature to empower local gov- 

. ernment~.’~~ Thus, “Free Trade and the Bible walking 

hand-in-hand together’’ inspired the Georgia Supreme 

Court in 1853 to deny the legislature the capacity to confer 

on a “subordinate authority” the power to enact ordinances that repeal state statutes.*45 The Missouri SuU.S. Advisory Commission on Intergovernmental Relations 33 
preme Court held that the provision of the state 

constitution vesting the state General Assembly with legislative power rendered unconstitutional a statutoq clause 

delegating to the county governing body local choice as to 

whether to suspend the statute’s operation.’46 Lawyerly caution deriving from these and similar led to the view 

that a broad grant of home rule or charter-making power to 

local governments could be safely effectuated only by 

amending the state constitution to permit it.’” 

Another restraint on the powers of the state legislature emerged out of the willingness of state and, eventually, federal courts to review state legislation authorizing 

taxation, borrowing, or the taking of property, to determine whether the governmental action was for a valid 

public purpose.149 The public-purpose doctrine was predicated on “implied reservations of individual rights.”1M 

In the leading case, Loan Association v. Topeka 

(1874),15’ the power of the Iowalegislature toauthorizelocal governments to incur debt to aid in the establishment 

of a privately owned manufacturing facility was denied by 

the court. Contemporaneously, state courts held unconstitutional efforts of the legislature to empower local govemments to provide services traditionally performed by the 

private State constitutional provisions expressly 

permitting state and local borrowing for the purpose of industrial development lS3 or empowering local governments 

to operate public utilitieP4 are a tribute to the tenacity of 

the judicial doctrine. This doctrine became so entrenched 

that it could be rooted out onlyby amending the state constitution to overturn state supreme court decisions. 

An Inherent Right to local Self-Government? 

The Cooley Doctrine 

Debate over local home rule was enlivened by judicial 

interest in the doctrine of an inherent right to local 

self-government. This doctrine stems from an 1871 concurring opinion of Michigan Supreme Court Judge Thomas Cooley in People v. H~rlbut.’~~ The statute under 

attack had created a board of public works for the city of 

Detroit, appointed by the state legislature. This legislation 

removed the city and its elected leaders from responsibility 

for and control of public sewer and water services as well as 

public properly, including buildings, streets, and parks.156 

Cooley had recently writtenA Treatiseon the Consritutional Limitations Which Rest upon the Legislative Power of 

the States ofthe America He framed the question 

presented for decision “broadly and nakedly,” asking 

“whether local self-government in this state is or is not a 

mere privilege, conceded by the legislature at its discretion, 

and which may be withdrawn at any time at pleasure?’lS 

Viewing the state of Michigan as a “polity,” Cooley examined the context of “traditions, practices, and expectations” surrounding the framing of the state constitution in 

light of the writings of Alexis deTocqueville, Francis Lieber, and Thomas Jefferson, as well as the colonial struggle 

for the right of self-government against centralization.15g 

Cooley’s discussion next drew on the notion that assets held 

by a municipal corporation to provide local necessities and 

conveniences for its own citizens qualify as constitutionally 

protected property interests.’@’ The judge then invoked a 

“living and breathing spirit” of “mutual responsibility in 

neighborhood interests” and sentiments of “independence 

and as guides to the interpretation of the following section of the Michigan Constitution: “Judicial officers of cities and villages shall be elected; and all other 

officers shall be elected or appointed, at any such time and in 

such manner as the legislature may direct.”162 

Cooley viewed this language as establishing the civil and 

political rights to vote and to hold 0ff1ce.l~~ He concluded: 

[Llocal government is a matter of absolute right; 

and the state cannot take it away. It would be 

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 the 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.lM 

Rebuking the legislature for introducing “into its legislation the centralizing ideas of continental Europe” and for ignoring the message of the framers of the 1850 Michigan 

Constitution, who were “intent on localizing and popularizing authority,” Cooley struck down the statute, which reminded him of the worst practices of the English Stuarts, 

“antagonistic to liberty and subversive of corporate rights.”165 

Although Cooley’s views were unequivocally adopted 

only in Indiana, Nebraska, Iowa, Kentucky, and Texas,lM 

they articulated a resurgence of values that would soon be 

embodied in institutional reforms designed to widen the 

scope of local ~h0ice.l~~ 

State Constitutions 

and Restrictions on State Supremacy 

Regardless of judicial interest in the subject, the 

states themselves began to be subject to constitutional 

limitations on the exercise of power over local government, by constitutional amendment. 

The Indiana Constitution of 1851 apparently contained 

the first state constitutional provision prohibiting local or 

special legislation.168 Although the provision did nor exclusively address the relationship between the legislature and 

local government, the Indiana document enumerated several categories involving local government.’@ The broadest of 

these prohibitions was aimed at local or special laws “regulating county and township business.”170 Prohibitions in this 

34 U.S. Advisory Comniission on Intergovernmental Relations 
and many other state constitutions on special and local legislation were viewed as aiding “local self-government to this 

extent, that whatever rights of government or power of regulating its own a€€& a community may have can be neither 

increased nor diminished without affecting in the same way 

the power or rights of all similar co~nmunities.”~~~ 

Another state constitutional innovation affecting the 

sovereign prerogative of the legislature was the ripper 

~1ause.l~~ Aripper clause was inserted by the 1872Pennsylvania constitutional convention in response to the legislature’s creation of the Philadelphia Building Commission. 

That commission was a state-appointed body charged with 

building city hall. It had been vested with nearly unlimited 

authority to exact local taxes to fund its 0perati0ns.l~~ The 

first ripper clause read as follows: 

The General Assembly shall not delegate to any 

special commission, private corporation or association, any power to make, supervise or interfere 

with any municipal improvement, money, property or effects, whether held in trust or otherwise, 

or levy taxes or perform any municipal function 

what~oever.”~ 

Like the language of provisions concerning local or 

special legislation, the ripper clause is significant because 

these provisions are evidence of a conscious attempt to 

make a crucial distinction between purely local, internal, 

or municipal matters and those of statewide concern. 

The ripper clause soon found its way into the constitutions of seven other states, normally as part of a policy package that included restrictions on special or local legislation 

concerning the internal affairs of local gove~nments.’~~ 

State and local borrowing was another area in which 

the public restricted state-local action, particularly on behalf of private enterprise.176 In the Ohio Constitution of 

1851, for example, the General Assembly was forbidden 

from authorizing any county, city, town, or township from 

either investing in, or borrowing on behalf of, private enterpri~e.’~~ By 1880, 28 of the 38 states had incorporated 

similar restrictions in their constitution^.'^' 

The position of the states vis-a-vis their relationship to 

local government had moved from legislative supremacyitself gained as the result of independence from Great 

Britain-to an increasing circumscription of state legislative powers with respect to local governments. There was 

a growing recognition by the courts, through prescriptive 

judicial interpretation, and by the people, through constitutional amendment, that local government, once 

created, had to have a persona and viability of its own. 

Notes 

‘See Daniel J. Elazar, ‘Xre We a Nation of Cities?” in Robert A. 

Goldwin, ed., A Nation of Cities: Essays on America’s Udan 

Problems (Chicago: Rand McNally, 1968), pp. 89-114. 

C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- cal Government Law (Wilmette, Illinois Callaghan and Com- pany, 1981)Vol.l, ch. 3. Law books are a useful source because 

of the tendency of lawyers to incorporate into their work “the 

commonplaces of the political thought of their time,” R. W 

and A. J. Carlyle, A History of Medieval Political 7heory in the 

West (London: William Blackwood and Sons, 19091, Vol. 2, pp. 

3Gordon S. Wood, 77re Creation of the American Republic, 

1776-1 787 (New York W. W. Norton, 1972) pp. 48-53; Meyer 

Reinhold, Classica Americana (Detroit Wayne State University 

Press, 1984) pp. 94-115; Paul A. Rahe, Republics Ancient and 

Modem (Chapel Hill: University of North Carolina Press, 1992) 

See Max Farrand, ed., 77ie Recordsof the Fedeml Convention of 

I787 (New Haven: Yale University Press, 1937). 

’Martin Ostwald, Autonomia: Its Genesis and Early History 

(New York American Philological Association, 1982), p. 1. 

For example, the Charter of the Second Athenian Confedera- cy of 377 B.C. imposed the following restrictions on Athens in 

its dealings with confederacy members. It could not (1)impose 

a form of government; (2) assert military or political control 

over an allied state by dispatch of troops or of governors; or (3) 

exact tribute from its allies. Ostwald, Autonomia: Its Genesis 

and Early History, p. 48. 

Documentary evidence for this can be found in Frank E Abbott 

and Alan C. Johnson, Municipal Administration in the Roman 

Enrpire (New York Russell and Russell, 1926, reissued 1968) 

Ibid., pp. 4,9. 

34-35, n-78. 

* Ibid., pp. 39,247-571. 

“Ibid., p. 8. 

’’ Ibid., p. 10. 

Napoleon used this format in creating administrative regions 

of France, which exist to this day. 

l3 Ibid., p. 17. 

l4 Ibid., pp. 43-45. 

Ibid., p. 41. 

161bid., p. 46. 

”Ibid., p. 57. ’’ Ibid., p. 54. 

Ibid., pp. 177-196. “The secret of government without bureau- cracy was the Roman system of cities which were self-govern- ing and could provide for the needs of empire.” Peter Garnsey 

and Richard Saller, Z7je Roman Empire: Economy, Society, and 

Culture (Berkeley: University of California Press, 1987) p. 26. 

2o Ibid., p. 197. An extended study of the social and cultural cli- mate created by political pluralism is found in Paul Veyne, 

Bread and Circuses (Harmondsworth, Middlesex: Penguin 

Press, 1990). 

2’ John Procope, “Greek and Roman Political Theory,” in James 

H. Bums, ed., The Cambridge History of Medim& Political 

Ilrought, c.350-c. 1450 (New York Cambridge University 

Press, 1988), p. 33. 

22 Abbott and Johnson, Municipal Administration in the Roman 

Empire, p. 194. 

231bid., p. 209. 

241? D. King, “The Barbarian Kingdoms,” in Burns, ed., The 

Canrbndge History of Medieval Political Thought, pp. 124-125. 

25 R. Van Caenegem, “Government, Law and Society,’’ in Ibid., p. 

179. 

U.S. Advisory Commission on Intergovernmental Relations 35 
36 U.S. Advisory Commission on lntergovernmental Relations 

~~~ 

26See generally, J. G. A. Pocock, The Machiavellian Moment 

(Pnnceton, New Jersey: Princeton University Press, 1975). 

27 Walter Ullmann, Principlar of Government and Politics in the 

Middle Ages, 2d ed. (London: Methuen and Company, 1966), 

2g Alan Watson, ed., The Digest of Justinian (Philadelphia: Uni- versity of Pennsylvania Press, 1985), Vol. 1, p. 96. Thus, the 

Emperor Trojan quashed a request by the inhabitants of Nichomedia in the province of Bithynia in Asia Minor to form a 

communal fire brigade. See Arnold H. M. Jones, A History of 

Rome through the Fifh Century (New York Walker and Com- pany, 1970), Vol. 2, pp. 244-245. 

29 Bartolus’ teaching is summarized in Joseph I! Canning, “Law, 

Sovereignty, and Corporation Theory,” in Burns, ed., Die 

Cambridge History of Medieval Political Thought, QQ. 470-471. 

30 C.N.S. Woolf, Bartolus of Sassofemto (Cambridge: Cambridge 

University Press, 1913). pp. 113-114. 

31 Joseph I! Canning, “Law, Sovereignty, and Corporation 

Theory,” p 473. For a fuller discussion, see Joseph E Canning, 

The Political Thought of Baldus de Ubaldis (Cambridge: 

Cambridge University Press, 1987), pp. 93-158, 185-208. 

pp. 20 21. 

321bid., pp. 138-139, 152. 

33 Sidney and Beatrice Webb, English Local Government from the 

Revolution to the Municipal Corporations Act (London: Long- mans Green, 1906-1922). 

34 W.J.M. Mackenzie, Theories of Local Government (London: 

London School of Economics, 1961), pp. 9-12. 

35 Frederick W. Maitland, Township and Borough (Cambridge: 

Cambridge University Press, 1898). 

36 Susan Reynolds, An Introduction to the History of English Me- dieval Towns (Oxford: Clarendon Press, 1977). 

37 Ibid., p. 102. 

38 Ibid., pp. 103-108. 

39 See J. C. Holt, Magna Charta (Cambridge: Cambridge Univer- sity Press, 2d edition, 1992), pp. 61-67,274,279-280; John E. 

Bebout, An Ancient Parttienhip: Local Govemnient, Magna 

Charla, and the National Interest (Charlottesville: University 

Press of Virginia, 1966). Localities were able to select purely 

local officials, such as “mayors.” See Susan Reynolds, An Ziitmduction to the Hktoty of English Medieval Towns, p. 109. Urban 

places were able to receive status as independent counties, 

consolidated local court jurisdictions and incorporation. See, 

Reynolds, pp. 113-114. Further privileges ensued in the fif- teenth century, including perpetual succession, a common 

seal, the right to sue and be sued, to hold lands and to issue bylaws. Urban courts asserted jurisdiction over merchant law, town 

property deeds, wills and nuisance cases. See ibid. Also, urban 

legislative bodies issued by-laws regulating trade and public 

health and exacted tolls for a variefy of public works including 

paving, bridge building, and wall building. See ibid., p. 126. 

40 The works of Christopher Hill ably discuss seventeenth centu- ry England and the development of its political system. In par- ticular, for a broad overall view, see The Century of Revolution: 

1603-1 714,2nd ed. (New York W. W. Norton, 1982), passim. 

41 Otto Gierke, Natural Law arid the Theory of Society (Boston: 

Beacon Press, 1960), p. 67. It is interesting to note that this pe- riod of English history saw an attempt on the part of central 

government to direct and control local governments both in 

England and in the emerging colonies. See J. H. Sacret, “The 

Restoration Government and Municipal Corporations,” En- glish HistoricalReview 45 (April 1930): 232; James R. Jones, Die 

Revolution of 1688 in England (New York W. W. Norton, 1972), 

p. 43; Michael G. Hall, Lawrence H. Leder, and Michael G. 

Kammen, eds., Tlte GIoriousRevolution in Ainerica (New York 

W. W. Norton, 1972), pp. 14-18. 

42 See, for example, the legal actions brought by the king against 

local government in the Proceedingsbetween the King and the 

City of London, State Trials, Volume 8, pp. 1040-1358 (1682). 

The controversy between king and Parliament affected the 

colonies also. See Hall, Leder and Kammen, The GloriousRevolution in America, pp. 24-25. 

43 See, E. Neville Williams, The Eighteenth Century Constitution: 

1688-1815 (Cambridge: Cambridge University Press, lm), p. 4. 

4.1 See generally, Jack I! Greene, Peripheries and Center (Athens: 

University of Georgia Press, 1986). Much of the subsequent 

discussion of this topic summarizes Greene’s work. 

451bid., p. 20. 

46 Ibid., pp. 29-30. 

47 Evenaslate as 1Tl4,XcsqhGall~way ,whQ\ate.r \UxnC&QUttO 

‘w. abi&&, oKes..asi<3as p\i% \sic C,mkiits+A%igress of divided responsibilities between Great Britain and the 

American colonies. Though it had no chance of success by 

then, it had suggested an American Parliament, responsible 

for all internal matters and leaving international trade to 

Great Britain. 

Ibid., p. 76. 

49See Bruce C. Daniels, ed., Town and Country (Middletown, 

Connecticut: Wesleyan University Press, 1977). This book con- tains essays on local government in colonial Massachusetts, 

Connecticut, Maryland, Virginia, South Carolina, and Pennsylvania. 

Jack I? Greene, “Changing Identity in the British Caribbean: 

Barbados as a Case Study,” in Nicholas Canny and Anthony 

Pagden, eds., Colonial Identity in the Atlantic World, 1500-1800 

(Princeton, New Jersey: Princeton University Press, 1987), pp. 

214-215. 

Donald S. Lutz, Popular Consent and Popular Control (Baton 

Rouge: Louisiana State University Press, 1980), p. 156. 

52 David T. Konig, “Origins of Local Government inNorthern 

Massachusetts,” in Bruce C. Daniels, ed., Town and Country, 

p. 29. 

53 Ibid. 

54 Ibid., pp. 29-30. 

55 Donald S. Lutz, Dre Origins of American Constitutionalism 

(Baton Rouge: Louisiana State University Press, 1988), pp. 

42-48; Bruce C. Daniels, The Connecticut Town (Middletown, 

Connecticut Wesleyan University Pres, 1979), pp. 11-0 Amasa 

Eaton, “The Right to Local Self-Government,” Harvard Law Re- view U (April lWO> 570-588; and Michael Zuckerman, Peaceable 

Kingdoms (New York Alfred A. Knopf, 1970). 

56 Lutz, Popular Consent and Popular Control, pp. 150-171; Joshua 

1. Miller, Local Autonomy in Early American Politics: Decent&- 

ist Ideas and Pmctices 1630-1 789 (Ph.D. Dissertation, Prince- ton University, Department of Politics, 1984); Timothy H. 

Breen, “Persistent Localism: English Social Change and the 

Shaping of New England Institutions,” William and Mary 

Quarterly 32 (3d ser. 1975): 3-28. 

57Francis N. Thorpe, ed., The Federal and State Constitutions, 

Colonial Charters, and Other ORanic Laws ofthe United States 

(Washington, DC U.S. Govemment Printing Office, 1909), 

Vol. 5, p. 2712. 

58 Ibid., p. 3040. 

59Robert Bolton, Jr., History of the County of Westchester (New 

York A. S. Gold, 184S), Vol. 2, pp. 184-195. 

George Chalmers, Opinions of Eminent Lawyers on Vmous 

Points of English Jurispnrdence (Buffalo, New York William S. 

Hein Company, 1989, p. 10. 

61 Greene, Peripheries and Center, pp. 13-18. 

62Chalmers, Opinions of Eminent Lawyers on Vbious Points of 

English Jurisprudence, p. 10. 
63 Ibid., p. 395. 

64 Ibid., pp. 396-397. 

JackR. Pole, PoliticalRepmentation in Englandand the Origins 

of the American Republic (Berkeley: University of California 

Press, 1971), pp. 38-50. 

66Lois Green Can; “The Foundations of Social Order. Local 

Government in Colonial Maryland,” in Daniels, ed., Townand 

Country, p. 99. 

67Lut~, Popular Consent and Popular Control, p. 162. 

ba Jack R. Pole,PoliticalRepresentation in England and the Origins 

of the American Republic, pp. 72,80,94,162-163; Lutz, Popular 

Consent and Popular control, p. 163. 

@Pole, Political Repmentation in England and the Origins of the 

American Republic, p. 38.; Lutz, Popular Consent and Popular Control, pp. 150-151; Breen, “Persistent Localism: English So- cial Change and the Shaping of New England Institutions”; 

Miller, Local Autonomy in Early American politics: ¢ralist 

Ideas and Pmctices, 1630-1 789; and George E. Howard, An Zntroduction to the Local Constitutional History of the United 

States (Baltimore: Johns Hopkins University Press, 1889). 

70 Ernest S. Griffith, History ofAmerican City Government-The 

Colonial Period (New York: Oxford University Press, 1938) pp. 

58,65,69, 100-102; Jon Teaford, Tlre Municipal Revolution in 

Amen’ca (Chicago: University of Chicago Press, 1965). 

71Stephen L Schechter, “The Founding of American Local 

Communities: AStudy of Covenantal and Other Forms of& 

sociation,” Publius: The Journal of Fedemlism 10 (Fall 1980): 

165; George Lee Haskins, Law and Authority in Early Massa- chusetts (New York The Macmillan Company, 1960). 

Robert Wheeler, “The County Court in Colonial Virginia,” in 

Daniels, ed., Town and Countty, pp. 111-133; Richard Waterhouse, “The Responsible Gentry of Colonial South Carolina: 

A Study in Local Government, 1670-1770,” ibid., pp. 160-185; 

Jack I? Greene, The Quest forPower(New York W. W. Norton, 

1972), pp. 251 65. 

73 Judith Diamondstone, “Philadelphia’s Municipal Corpora- tion, 1701-1776,” Pennsylvania Magazine of History and Biogm74 Judith Diamondstone, “The Government of Eighteenth Cen- tury Philadelphia,” in Daniels, ed., Town and Country, pp. 249-253. 

phy 90 (April 1966): pp. 183-201. 

751bid., pp. 253-256. 

76Daniels, The Connecticut Town, pp. 119-139. 

771bid., pp. 94-118. 

78Nicholas Varga, “The Development and Structure of Local 

Government in Colonial New York,” in Daniels, ed., Town and 

Country, pp. 186-215; Wayne L. Bockelman, “Local Govern- ment in Colonial Pennsylvania,” ibid., pp. 216-237. 

79 Judith Diamondstone, “The Government of Eighteenth Cen- tury Philadelphia”; Hendrik Hartog, Public Prop@ and Private Power (Chapel Hill: The University of North Carolina 

Press, 1983). 

Hartog, Public Prop@ and Private Power, p. 19. 

Zuckerman, Peaceable Kingdoms, pp. 36-45; See, for example, 

the 1714 protests against a proposed incorporation of Boston 

reprinted in Publications of the Colonial Society of Mmsmhusetts, Vol. 10, April 1906, pp. 345-352. 

82 Zuckerman, Peaceable Kingdonu, and Daniels, Tlte Connecficut Town, pp. 87-91. 

Daniels, Town and Country, p. 200. 

84 Howard Lee McBain, “The Legal Status of the American Co- lonial City,” Political Science Quarterly 40 (June 1925) 17, 

192-197. 

Demophilus, The Genuine Principles of the Ancient Sawn or 

English Constitution (Philadelphia: Robert Bell, 1776), re- printed in Charles S. Hyneman and Donald S. Lutz,American 

Political Writings duringthe Founding Em 1760-1805 (Indiana- polis: Liberty Press, 1983)) Vol. 1, pp. 340-367. 

Ibid., p. 350. 

87 H. Trevor Colboum, The Lump of eerience: Whig History and 

the Intellectual Origins of the American Revolution (Chapel Hill: 

University of North Carolina Press, 1965), pp. 26, 110-111, 

126-128,190-192. The Teutonist thesis is that democracy is nei- ther the product of revolution nor derived from abstract doc- trines concerning the rights of man. Instead, democracy was 

viewed as the distinctive ethnic heritage of people who had 

learned self-government by running their own affairs and by 

defending local liberties against centralized power. The Teutonist thesis revived in intellectual circles in the 1870s and pro- duced several books on local government, the mast notableof 

which is George Howard‘s An Introduction to the Local Consti- tutional History of the United States. John Higham, “Herbert 

Baxter Adams and the Study of Local History,” American His- toricalReview 89 (December 1980): 1225 It also influenced the 

view expressed by Judge Thomas Cooley in People v. Hurlbut 

22 Mich 44 (1871) that American citizens have an inherent 

right to local self-government. Both Colbourn and Higham 

take the position that the Teutonist thesis is a myth. A brief 

discussion of the thesis proponents (Gneist, Redlich, and JoshuaToulmin Smith) in English historiography is found in Mackenzie, Theories of Local Government, pp. 9-12. 

Anwar Syed, The Political Theory of American Local Govemnient (New York Random House, 1966), p. 40. 

89Gordon S. Wood, The Creation of the American Republic, 

1776-1 787 (New York: W W Norton, 1972), pp. 150-161. 

90 McBain, “The Legal Status of the American Colonial City,” p. 

187. 

91 Thorpe, ed., The Fedemland State Constitutions, Vol. 5, p. 3085. 

(1776 Pennsylvania Constitution, §9) 

92 Ibid., p. u30. 

93 Thorpe, ed., 7he Fedemland State Constitutions, Vol. 3, p. 1911. 

(1780 Massachusetts Constitution, Am. 11) 

94Howard Lee McBain, “The Delegation of Legislative Powers 

to Cities,” Political Science Quarterly 32 (March and June, 

1917): 276,391. 

95 Thorpe, ed., The Fedemland State Constitutions, Vol. 3, p. 1690. 

(1776 Maryland Constitution, Article XXXVII) 

961bid., Vol. 5, p. 2636 (1777 New York Constitution, Art. XXXVI) 

See also Joan C. Williams, “The Invention of the Municipal Cor- poration: A Case Study in Legal Change,” American univemify 

Law Review 34 (Winter 1985): 369,394397. 

97 Wood, The Creation of the American Republic, 1776-1 787, pp. 

184-188. 

98 Thorpe, ed., The Fedemland State Constitutions, Vol. 5, 2790. 

(1776 North Carolina Constitution, Articles I1 and 115 

99 Fletcher M. Green, Constitutional Development in the South At- lantic Stater, 1776-1860 (New Yok W W Norton, 1966) p. 83. 

loo Thorpe, ed., T7ie Federal and State Consiitutions, Vol. 3, p. 1898 

(1780 Massachusetts Constitution, pt. 11, ch. 1,§3, Art. 11); Vol. 

4, p. 2461 (1784 New Hampshire Constitution, pt. 11). 

Iol Lutz, Popular Consent and Popular Control, p. 167. 

lo2 Thorpe, ed., Die Fedemland Stafe Constitutions, Vol. 3, p. 1892 

(1780 Massachusetts Constitution, pt. I, art. XIX); Vol. 4, p. 

2457 (1784 New Hampshire Constitution, pt. I, art. XXXII); 

Vol. 5, p. 2788 (1776 North Carolina Constitution, pt. I, art. 

XVIII); Wood, The Creation of the American Republic, 

Io3 Williams, “The Invention of the Municipal Corporation: A 

Case Study in Legal Change,” n. 95; Gerald Frug, “The City as 

1776-1 787, pp. 188-196. 

US. Advisory Commission on Intergovernmental Relations 37 
a Legal Concept,” Hmard Law Review 93 (April 1980): 1059; 

Hartog, Public Propeny and Private Power, pp. 185-186. 

lo4 Den on demise of Trustees of the University of North Carolina 

v. Foy and Bishop, 5 North Carolina 58,87 (1805). 

105Terrett v.Taylor, 13 U.S.43,52(1815)(9Cranch);TownofPawlet v. Clark, 13 U.S. 292 (1818) (9 Cranch); Dartmouth College 

v. Woodward, 17 U.S. 518,694 (1819) (4 Wheat.). 

lo6 Francis S. Philbrick, The Rise of the New Wat (New York Harp- er and Row, 1965), pp. 120-133. 

lo7 Philip B. KurIand and Ralph Lerner, eds., 77te Founders’ Consti- tution (Chicago: University of Chicago Press, 19&7), Vol. 1, p. 27. 

log Ibid. 

log Earl S. Pomeroy, The Territories and the United Stares (Seattle: 

University of Washington Press, 1969), p. 98. 

Merle Curti, The Making of an American Communily (Stan- ford, California: Stanford University Press, 1959), p. 261. 

‘11 Michael E. Libonati, “Intergovernmental Relations in State 

Constitutional Law A Historical Overview,” Annals of rhe 

American Academy of Political Science 496 (March 1988): 107. 

112 Frug, “The City as a Legal Concept,” p. 1109. See also Edward 

A. Gere, Jr., “Dillon’s Rule and the Cooley Doctrine,” Journal 

of Urban History 8 (May 1982): 271. 

‘13 Williams, “The Invention of the Municipal Corporation: A 

Case Study in Legal Change,” n. 95. 

‘I4 Henry Wade Rogers, “Municipal Corporations,” Two Centu- ries* Growth of American Law (New York Charles Scribners’ 

Sons, 1901). DD. 214, 239; ResDublica v. Duauet. 2 Yates Re- PO& 493 @a: Supreme Ct. 1799); 1776 Maryland constitution, 

Art. XXXVII. 

‘” Paul Vinogradoff, “Juridical Persons,” Columbia Law Review 

24 (6, 1924): 594, 600401. 

‘16 13 Mass. 272 (1816). 

‘17Mass. Stat. 1785, c. 75, $8. 

’” Ibid., $7. 

‘Ig 13 Mass. 272,278 (1816). 

‘*O Stetson v. Kempton, 13 Mass. 272,284 (1816). 

122 Ibid., pp. 278-280. 

123 Bangs v. Snow, 1 Mass. 181 (1804); Willard v. Newburyport, 29 

Mass. 227 (1831); Spaulding v. Lowell, 40 Mass. 71 (1839). 

124State v. Mayor and Alderman Mobile, 5 Ala. 279, 310 (1837); 

Willard v. Warden, Burgesses, and Freemen of the Borough of 

Killingworth, 8 Conn. 247,254 (1830); City of New London v. 

Brainard, 22 Conn. 553,555 (1853) (Stetson v. Kem ton cited 

as leading case); Fitch v. Pinckard, 4 Ill. 69, (1842) 8ity of Lafayette v. Cox, 5 Ind. 38,39 (1854); Louisiana State Bankv. The 

Orleans Navigation Co., 3 La. Ann. 294,309 (1848) (Stetson v. 

Kempton cited); Leonard v. City of Canton, 35 Miss. 189,191 

(1858); Hodges v. City of Buffalo, 2 Denio. 110 (N.Y., 1846); 

Commissioners of Gallia County v. Holcomb, 7 Ohio Part I 

232,233 (1835). 

12’ James Kent, Commentaries on American Law (New York 0. 

Halsted, 1827), Vol. 1, p. 240. 

lZ6 Clark, Dodge and Co. v. Davenport, 14 Iowa 494,498 (1863). 

‘27Memam v. Moody’s Executor, 25 Iowa 164, 170 (1868). 

12’ John E Dillon, Commentaries on the Law of Municipal Corpomtionr, 5th ed. @aton: Little, Brown and Company, 1911) 239. 

129 Ibid., 9238. (Emphasis in original.) 

130 Sands, Libonati, and Martinez, Local Govemtnent Law,Vol. 3, 

Ibid. 

13.05. 

131 For example, Commissioners of Gallia County v. Holcomb, 7 

Ohio Part I232 at 233 (1835) (Corporations are “limited to ex- ercise of powers specifically conferred on them by lag); Leonard 

v. City of Canton, 35 Mw. 189,191 (1858) (a municipal corpora- tion’s mrs must be strictly construed and confined to thase 

subjects “specially enumerated”); Louisiana State Bank v. The 

Orleans Navigation Co., 3 La Ann. 294 at 314 (1848) (the means 

adopted to effectuate an express pr must be authorized ex- pressly or be essential to the exercise of that powr). 

13’Ex parte Burnett, 30 Ala. 461, at 467,468 (1857) (Narrow con- struction of statutory grant of “power and authority to make 

and establish all such rules, bylaws, and ordinances respecting the . . . police of said town that shall appear to them required 

and necessary for the security, welfare, and convenience of 

said town or for preserving health, peace, order, and good gov- ernment within the same”); Commonwealth v. Turner, 55 

Mass. 493 (1848) (Narrow construction of statute permitting 

towns to make all bylaws necessary “to preserve the peace, 

good order and internal police”). 

133 See, in particular, Louis Hartz, The Libeml Tmdition in Ameri- ca (New York: Harcourt, Brace and World, 1955). 

134 Robert E Williams, State Constitutional Law: Cases and Mate- rials (Washington, DC US. Advisory Commission on Inter- governmental Relations, 1988), p. 10. 

13’ J. Willard Hurst, TIie Growth OfAmericanLaw (Boston: Little, 

Brown and Company, 1950). pp. 228229,232234. 

136 17 U.S. (4 Wheat) 518,694 (1819). 

13’ lames Kent, Commentaria on American Law, p. 275. 

13’ Benson v. The Mayor of New York, 10 Barb. 233 (1850) (ferry 

franchise); Town of Milwaukee v. City of Milwaukee, 12 Wis. 

103 (1860)Qandpurchased for town use); Grogan v. City of San 

Francisco, 18 Cal. 590 (1861) (city slip property) (per Field, 

C.J.); People ex rel. Board of Park Commissioners of Detroit v. 

Common Council of Detroit, 28 Mich. 228 (1873) (public park) 

(per Cooley, I.). See Frank J. Goodnow, Municipal Home Rule -A Study in Administrution (New York Macmillan Company, 

1897), pp. 184-208, for a discussion of other cases concerning 

what municipal property is protected by constitutional provi- sions protecting private property. 

State ex rel. McCurdy v. Tappan, 29 Wis. 664 (1872) (bounty for 

enlisting in U.S. military service); People v. Batchellor, 53 N.Y. 

128, 144 (1873) (maintenance of private railroad). 

“Atkins and Co. v. Town of Randolph, 31 Vt. 226,237 (1858). 

141 People v. Township Board of Salem, 20 Mich. 452,474 (1870) 

(Cooley, I.); Mercer County Court v. Kentucky River Naviga- tion Co., 71 Ky. 300,318 (1871) (concurring opinion). 

l4’State ex rel. McCurdy v. Tappan, 29 Wis. 664,680 (1872). 

143Sh0 Sat0 and AIVO van Alstyne, State and Local Government 

Law, 2d ed. (Boston: Little, Brown and Company, 1977) p. 132 

144 McBain, “The Delegation of Legislative Powers to Cities,” n. 93. 

145Hayward v. The Mayor and Aldermen of Savannah, 12 Ga 

‘&State v. Field, 17 Mo. 529, 532-533 (1853). 

147Elliott v. City of Detroit, 121 Mich. 611 (1899); State ex. rel. 

Mueller v. Thompson, 149 Wis. 488 (1912). 

148 McBain, “The Delegation of Legislative Powm to Cities,” p. 409. 

Clyde E. Jacobs, Law Writers and the Courts (Berkeley: Univer- sity of California Press, 1954), pp. 98-159. 

Loan Association v. Topeka, 87 US. 655,663 (1874)(20 Wall.). 

Ibid. 

lS2 Opinion of the Justices, 58 Me. 590 (1871); Jacobs, Law Writers 

and the Courts, pp. 144-152. 

Ohio Constitution, Art. VIII, $13. 

404,410,412 (1853) (Lumpkin, J.). 

38 U.S. Advisory Commission on Intergovernmental Relations 
154 Ohio Constitution, Art. XVIII, $4. 

‘”24 Mich. 44,95 (1871); Howard Lee McBain, “The Doctrine of 

an Inherent Right of Local Self-Government,” Colunzbia Lm 

Review 16 (2 and 3, 1916): 190,299. 

‘56See, generally, David 0. Porter, “The Ripper Clause in State 

Constitutional Law-An Early Urban Experiment,” Utah 

Law Review 69 (April and June 1969): 287,450. 

157BOSton: Little, Brown and Company, 1868. 

15’ 24 Mich. 44, 96. 

‘I Ibid., pp. 98-103. 

lmIbid., pp. 104-106. 

16’ Ibid., p. 107. 

16324 Mich. 44, 108. 

Michigan Constitution, Art. XV, $14 (1850). 

Ibid. 

16’Ibid., pp. 109-110. 

‘%McBain, “The Doctrine of an Inherent Right of Local Self- Government,” pp. 198-208. 

16’ See R. Jackson Wilson, In Quest of Community (London: Ox- ford University Press, 1970); Frederick C. How, 77ie City Vie 

Hope of Democmcy (Seattle: University of Washington Press, 

1967) 

Chauncey C. Binney, Restrictionsupon Local and Special Legis- lation in State Constitutions (Philadelphia: Kay and Brother, 

1894), p.7. 

169 Thorpe, ed., 77ie Federaland Slate Constitutions, Vol. 2, p. 1080. 

170 Ibid. 

’” Binney, Restrictions upon Localand Special Legislation in State 

Constitutions, p. 108. A recent article detailing the colorful cir- cumstances which occasioned the ban on local or special legislation “locating or changing county seats” is James R. Chiles, 

“County Seats Were a Burning Issue in the Wild West,”Smithsorzian 20 (March 1990): 100. 

172 Porter, “The Ripper Clause in State Constitutional Law-An 

Early Urban Experiment,” n. 156. 

173 Ibid., p. 307. 

174Thorpe,ed., TheFederalandState Consfitutions,Vol. 5, p. 3128. 

(Pennsylvania Constitution 1873, Art. 111, $20) ’’’ Porter, “The Ripper Clause in State Constitutional Law-An 

Early Urban Experiment,” n. 156, p. 311 (California, Colorado, 

Montana, New Jersey, South Dakota, Utah, and Wyoming) 

176A. James Heins, Constitutional &strictions against State Debt 

(Madison: University of Wisconsin Press, 1963), pp. 8-9; Harry 

N. Scheiber, Ohio Canal Em: A Case Study of Government and 

the Economy 1820-1861 (Athens: The Ohio University Press, 

1969). 

177Thorpe, ed., 77ie Fedemland State Constitutions, Vol. 5, p. 2926 

(Ohio Constitution 1851, Art. VIII, $4, $6). For good measure, 

the state was barred from assuming local government debts. 

Ibid. (Ohio Constitution 1851, Art. VIII, $5) 

17’ U.S. Department of the Interior, Census Office,&pHon Valuation, Tmtion and Public Indebtedness in the United States 

(Washington, DC, 1884), p. 649. 

(Indiana Constitution, Art. IV, 22) (1851) 

U.S. Advisory Commission on Intergovernmental Relations 39 
40 U.S. Advisory Commission on Intergovernmental Relations 
Chapter 4 

THE DEVELOPING CONCEPT OF HOME RULE 

IN TWENTIETH CENTURY AMERICA 

Americans, during the twentieth century, have sought 

to define a workable model for providing local governments with a modicum of local autonomy. From 1875 onwards, debate and deliberation in the states began to shift 

from placing restraints on their legislatures to empowering local citizens with the ability to articulate their preferences over institutional forms and functional powers 

within their local communities. 

Some of the best examples of the early development of 

home rule ideas can be seen in the Missouri Constitution of 

1875 and, then, in the models for devolving powers on local 

government created by California, New York, the American 

Municipal Association (MA), New Jersey, and Illinois. 

The shift from constitutional restraints on the state legislature to constitutional local empowerment began with the 

home rule provisions of the Missouri Constitution of 1875. 

Use of the label home rule is questionable here, however, because the debates of the Missouri Constitutional 

Convention, which expressly conferred charter-making 

power on the city of St. Louis, do not use that term.’ Apparently coined about 1870 in connection with the movement to obtain local autonomy for Ireland,* the term 

home rule was used to refer to proposals affording greater 

autonomy for London by 1890,3 before later becoming a 

general phrase applying to “all forms of local or regional 

self-determination .”4 

When the Missouri Constitution was adopted in 1875, 

corruption and favoritism by the state legislature in the 

management of the affairs of the city of St. Louis was as 

pervasive a theme in the debates as was recourse to the 

principle of local self-g~vernment.~ Indeed, the principle 

of home rule did not carry much influence because the 

proposed and adopted text applied only to a single, named 

cjp-st, Lou! 

The generalized remedy for state legislative mischief 

provided by the convention consisted of a substantive prohibition of local or special laws changing the charters of 

cities, towns, or villages, and a procedural provision requiringa three-month notice to the inhabitants of acounty 

or city prior to the passage of any local laws.’ These rules 

were designed to curb the legislature’s propensity “to 

make changes in the charter and organization of that city 

[St. Louis], which were not endorsed by the people of the 

city.”* 

The innovative part of the package was a provision 

delegating “to the people of St. Louis a power that has 

heretofore been possessed alone by the Legislature,” 

namely, the power to make a charter? This delegation, 

however, was replete with conditions to be met by the city 

in framing and adopting the charter and any subsequent 

amendments.’” It also mandated the type of local government organization that could be adopted in the home rule 

charter: “[A] chief executive and two houses of legislation, 

one of which shall be elected by general ticket.”” 

That the state had not chosen to relax its grip on St. 

Louis is demonstrated by two clauses. First, charter provisions had to be “in harmony with and subject to the Constitution and laws” of Missouri.12That is, whatever principle 

of local self-government was embodied in the constitutional text had neither the scope nor the dignity accorded 

other constitutional provisions. Local initiatives were subject 

to challenge and, thereby, judicial scrutiny not only on constitutional grounds but also on the ground that they were not 

in harmony with general laws. The charter clearly was subordinate, also, to any general law, including those laws that 

classified cities by population. As one delegate remarked: 

The General Assembly is the only law making 

power of the state & if they find that this scheme 

does not work well all they need to do is to pass a 

general law that in all cities or counties having 

over 100,000 inhabitants the law shall be so & so; 

& it will operate directly upon the city & county of 

St. Louis.f3 

U.S. Advisory Commission on Intergovernmental Relations 41 
Tb remove any doubts about legislative supremacy, the 

convention adopted a second saving clause: “Notwithstanding the provisions of this article, the General Assembly shall 

have the same power over the city and county of St. Louis 

that it has over other cities and counties of this State.”I4 

When the validity of this provision was challenged, 

the Missouri Supreme Court held that home rule cities 

constituted a class concerning which the legislature was 

free to enact legislation without violating constitutional 

prohibitions against local or special legislation.” Despite 

the ruling, a leading commentator, Howard Lee McBain, 

adjudged the Missouri experiment to be a failure because 

Missouri cities under home rule charters did not “enjoy 

even the constitutional guarantee that is extended to all 

other cities.” “It is manifest,” he said, “that in any strict 

interpretation of terms, the provisions of the Missouri 

constitution upon this subject are so utterly contradictory 

as to be practically meaningless.”16 

Nevertheless, it should be stressed that the Missouri 

Constitution was the first to contain a separate article devoted to local government and its relationship to the state 

legislature. Although the constitution did not shield charter cities from state legislative interventi~n,’~ it generally 

succeeded in providing charter cities with “the power to 

act without prior authorization by the state legislature” 

such that from its adoption until 1905 “the Missouri Supreme Court approved every exercise of municipal initiative. . . which was authorized by charter, did not conflict 

with a statute, and did not run afoul of a constitutional 

prohibition,”18 including the power to tax.lg 

Finally, the principle of local diversity embodied in the 

1875 constitution defeated a challenge predicated on the 

equal protection and republican form of government clauses 

of the federal Constitution.2o A unanimous U.S. Supreme 

Court affirmed in 1879 that “each State has the right to make 

political subdivisions of its territoq for municipal purposes 

and to regulate their local government” and that “diversities 

. . . are allowable in different parts of the same State.”21 

Missouri’s actions sparked debate about institutional 

policy in other states, which broadened and deepened reflection about local home rule. In 1879, for example, the 

California Constitutional Convention debated a proposal 

delegating charter-making powers to the City and County 

of San Francisco. Its drafter copied the provision from 

Missouri.” Proponents of the provision argued that an express text was necessary to resolve “avery serious question 

with regard to the power of the Legislature to delegate its 

authority.”23 Opponents, dubbed sycophants of centralism 

by their adversarie~?~ invoked the specter of ~ecession~~ 

and the flagrant corruption of big city government.26 

These charges widened the debate from the particular status of San Francisco to the principles of localism as expounded by de To~queville’~ and the theory and spirit of 

the principle that “local legislation ought to be left to the 

localities which it is intended to affect.”= To resolve this 

dispute, the convention adopted a provision that gave any 

city the option of framing a charter “consistent with and 

subject to the Constitution and laws of this state.”29 

Moving into the twentieth century, states struggled 

with decisions about the structure of their relationships to 

local governments and the powers that should be granted 

to those political communities. Ultimately, states adopted 

one of three versions of home rule powers: (1) the city republic; (2) a local bill of rights; or (3) devolution of powers. 

The City Republic 

The complex task of creating a framework to express 

the demand for differentiating between state and local 

spheres of influence can be traced to a series of amendments to the California Constitution. Between 1894 and 

1902, amendments were enacted regarding city-county 

consolidation (1894); county boards of education (1894); 

county organization (1894); organization of municipal corporations (1896); the contents of corporate charters 

(1896); local government debt limits (1900); establishment 

of a decentralized, fiscally autonomous public school system (1902); tax exempt status of state and local government bonds (1902); tenure of municipal officials (1902); 

and empowering each city of more than 3,500 inhabitants 

to frame a charter for its own government, subject to approval by the state legislature, the provisions of which 

shall become the “organic law thereof and supersede . . . all laws inconsistent with such charter” (1902).30 

The combination of language in the 18% amendment to 

the California Constitution stating that “all charters thereof 

framed or adopted by authority of this constitution, except in 

municipal affairs, shall be subject to and controlled by general laws,”31 with the 1905 provision eliminating the requirement of legislative approval of charters,32 gave California’s 

local governments a limited but definite autonomy.33 Such a 

sense of autonomy has been in common currency in American political discourse since colonial times.34 The colonies 

demanded, at least after 1774, possession of an “exclusive 

right of internal legislation” while leaving external affairs (or 

trade matters) to the English Parliament.35 

As explained in the previous chapter, however, the 

states resisted adopting a similar attitude toward their own 

political subdivisions. Little by little, the importance of local government for its own and the state’s sake began to be 

recognized. Thus, the provisions of the California, Colorado (1902), Oregon (1906), and Ohio (1912) constitutions, 

42 US. Advisory Commission on Intergovernmental Relations 
adopted during a period when the Progressive movement 

emphasized autonomy for urban cornmunitie~,~~ can be 

viewed as a major step forward in establishing localautonomy, however limited. These provisions allowed for two 

basic grants of power: 

(1) Widen the scope of local choice over municipal affairs, local and municipal matters, or all 

powers of local self-government; and 

(2) Immunize local charter provisions within the 

protected sphere of local autonomy from 

state legislative intervention. 

A local Bill of Rights 

New York. New York went one step further than Missouri and pursued in greater detail an effort to delineate 

the respective spheres of responsibility for the state government and its local g0vernments.3~ 

The state constitution combined a bill of rights for local governments with explicit definitions of the respective 

roles and duties of the legislature and local governments 

with regard to local government matters. The bill of rights, 

for example, guaranteed: 

(1) Popular participation in the selection of local 

officials; 

(2) County option in regard to forms of county 

government; 

(3) Allocations of local government functions as 

between counties and cities, towns, villages, 

districts, or other units of government; and 

(4) The right of people in an affected area to 

veto annexation by a neighboring local government by withholding majority approval in 

a referend~m.’~ 

The bill set limits, also, on the legislature’s power to regulate public utility operations conducted by local governments. Then, it conferred power on local governments to: 

(1) ‘‘Adopt local laws as provided by this article” 

[Article 1x1; 

(2) Enter into contracts with other local, state, 

and federal government agencies; 

(3) Exercise eminent domain, subject to legislative regulations of its exercise outside the local government’s boundaries; and 

(4) Apportion the “cost of a governmental service or function upon any portion of its area, 

as authorized by act of the legislature.’” 

The next section of the constitution required the legislature to provide for the creation and organization of local governments in such manner as shall secure to them 

the rights, powers, privileges, and immunities granted to 

U.S. Advisory Commission on lnte 

them by the constitution and, “subject to the bill of rights 

of local government,” to enact legislation “granting to local government powers including but not limited to those 

of local legislation and administration in addition to the 

powers vested in them by this article.” 

Those powers, once granted, “may be repealed, diminished, impaired or suspended only by” a statute enacted 

twice in successive years. The constitution required that legislative action ‘‘in relation to the property, affairs, or government of any local government” must be by general law, 

subject to certain exception^.^^ Another prt of that section 

gave local governments power to adopt and amend local laws 

not inconsistent with the provisions of the constitution or any 

general law relating to its property, affairs, or government. 

They also may legislate on any of the following subjects: 

(1) The powers, duties, qualifications, number, 

mode of selection and removal, terms of office, compensation, hours of work, protection, welfare, and safety of its officers and 

employees, except that cities and towns shall 

not have such power with respect to members of the legislative body of the county in 

their capacities as county officers; 

(2) In the case of a city, town, or village, the membership and composition of its legislative body; 

(3) The transaction of its business; 

(4) The incurring of its obligations, except that 

local laws relating to financing by the issuance of evidences of indebtedness by such 

local government shall be consistent with 

laws enacted by the legislature; 

(5) The presentation, ascertainment, and discharge of claims against it; 

(6) The acquisition, care, management, and use 

of its highways, roads, streets, avenues, and 

(7) The acquisition of its transit facilities and the 

ownership and operation thereof; 

(8) The levy, collection, and administration of 

local taxes authorized by the legislature and 

of assessments for local improvements, consistent with laws enacted by the legislature; 

(9) The wages or salaries, the hours of work or 

labor, and the protection, welfare, and safety 

of persons employed by any contractor or 

subcontractor performing work, labor, or 

services for it; and 

(10)The government, protection, order, conduct 

safety, health, and well-being of persons or 

property therein.41 

Ihe D$Ku& of conshuing Local Autonomy. Implementing and adjudicating disputes over the division of powers that 

property; 

qovernmental Relations 43 
local governments had gained in the early twentieth centuly 

in New York and several states presented some difficulties. 

In one Caliiornia case, for example, Justice McFarland of 

the California Supreme Court said, ‘The section of the constitution in question uses the loose, indefinable wild words 

‘municipal affairs‘ and imposes upon the courts the almost 

impossible duty of saying what they mean.”42 

Problems emerged even when the constitutional language spoke only to the empowerment question as, for example, the provision of the Washington Constitution 

conferring on “any county, city, town, or township” power 

to “make and enforce within its limits all such local police, 

sanitary, and other regulations as are not in conflict with 

general laws.”43 In a series of cases between 1901 and 1914, 

the Washington Supreme Court applied Dillon’s Rule to 

this constitutional grant of powers. It announced that it 

would review charter provisions for their reasonableness; 

held that state regulation of a policy arena preempted local regulation; and refused to recognize that powers traditionally associated with sovereignty, such as eminent 

domain and taxation, were granted to localities.44 

Insofar as state constitutional provisions sought to 

shield charter cities from legislative interference, Judge 

Timlin of the Wisconsin Supreme Court made the following observation in 1912 

[I]f the legislature could be constantly prohibited 

from any interference with the so-called home 

rule charter adopted by the city so far as the same 

related to municipal affairs, this would substitute 

the interference of the judicial department of 

government for that of the legislative department, and every section of the charter and every 

ordinance must in time come before the courts in 

order to ascertain whether it related to a municipal affair only and if so whether subject to repeal 

or amendment by the state legislature.4’ 

Simply put, charter cities would be freed from the tutelage of the state legislature only to find themselves subject to the guardianship of the state judiciary. That 

guardianship produced one of two results. In the first instance, judicially sanctioned home rule resulted, as in 

Ohio, where courts, on a case-by-case basis, exercised a 

legislative function of determining what was or was not a 

permissible power for local governments to exercise, leaving home rule cities in doubt as to the extent of theirpowers? Secondly, it resulted in a presumption of state 

responsibility that led to “a precipitous contraction of 

home rule powers,” as in New York.4’ 

The Devolution-of-Powers Approach 

The third approach to local home rule, setting out an 

area of devolved powers, seemed to avoid the difficulties 

inherent in delineating a constitutional division of powers 

between the state and local government. This devolved 

power provided local government with an area in which to 

operate freely, subject to the ultimate puniew of the state 

legislature. Sometimes referred to as legislative home rule, 

the devolution of powers is most commonly associated with 

the model constitutional provision for home rule formulated 

in 1953 by Jefferson B. Fordham on behalf of the American 

Municipal Association’s Committee on Home Rule.” The 

operative language of the provision states: 

A municipal corporation which adopts a home 

charter rule may exercise any power or perform 

any function which the legislature has power to 

devolve upon a non-home rule charter municipal 

corporation and which is not denied to that municipal corporation by its home rule charter, is not 

denied to all home rule charter municipal corporationsby statute and is within such limitations as 

may be established by statute. This devolution of 

power does not include the power to enact private 

or civil law governing civil relationships except as 

incident to an exercise of an independent municipal power, nor does it include power to define and 

provide for the punishment of a felony.49 

This model provision for a general grant of powers 

subject to enumerated restrictions had been sketched out 

by Frank J. Goodnow in 1895.5’ Goodnow, in turn, had attributed the devolution-of-powers approach to English 

and continental sources, including the Prussian Municipal 

Corporations Act of 1808.51 The home rule model represented a turning away from “the cross-checks and intersecting lines of divided responsibility” of the federal idea 

in favor of “a simple pyramid” of efficient, rationalized 

functional 

The 1953 American Municipal Association formulation did not represent a complete abandonment of the 

search for a protected sphere of local autonomy. It did 

provide, however, that “charter provisions with respect to 

municipal executive, legislative, and administrative structure, organization, personnel and procedure are of superior 

authority to stat~te.”’~ Moreover, it squarely addressed the 

problem of state-mandated expenditures or programs by 

proposing that legislation requiring increased municipal expenditures would take effect, absent municipal consent, only 

on a two-thirds vote of the legislature or if the legislature 

funded the mandated increa~e.5~ These protective provisions 

are absent from the recommended local government article 

in the 1963 edition of the National Municipal League’s Model State Constitution, indicating an even sharper retreat 

from a strong commitment to local auton0my.5~ 

The devolution-of-powers model has unquestionably 

met with success in the marketplace of ideas. For example, 

both Missouri and Pennsylvania streamlined their consti44 U.S. Advisory Commission on Intergovernmental Relations 
tutional home rule provisions (e.g., “a municipality which 

has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its 

home rule charter, or by the General Assembly at any 

time”56). The North Dakota provision tracks the language 

of the Model State Constitution cited above?’ 

The home rule model makes clear that the state legislature has the authority to confer broad powers on local 

government units, thus precluding a challenge based on 

nineteenth century delegation of power doctrines. Language empowering home rule cities is drafted to leave “a 

charter municipality free to exercise any appropriate power or function except as expressly limited by charter or 

general Two objectives are attempted here. 

First, the text eliminates the “strict constructionist presumption against the existence of municipal power” associated with Dillon’s Rule.59 Second, state judges are 

stripped of the doctrine of implied preemption because a 

home rule entity’s powers can be impeded only by express 

charter or statutory limits. The devolution-of-powers 

model seems designed almost exclusively with an eye to 

reducing the role that courts have played in mediating the 

division of power between state and local government. 

New Jersey and Home Rule 

The devolution-of-powers approach, however, has 

brought forth its own difficulties in state-local relations. 

Questions concerning administrative flexibility and entrenched rights in a state constitution are not fully developed. The New Jersey Constitution, for example, has 

attempted to cope with some of these problems. That constitution has no local government article. Instead, provisions pertaining to local government are found in the 

articles dealing with the legislative branch and taxation 

and finance.@ Three provisions help explain the difficulties of a devolution-of-powers approach. 

First, a prohibition against local or special legislation 

regulating the internal affairs of individual municipalities 

and counties is qualified by an exception that allows such legislation to be enacted on petition by the affected governing 

body and by a two-thirds vote of the state legislature.61 This 

provision relaxes the rigidity inherent in the distinction between internal affairs and matters of statewide concern. 

Flexibility, therefore, is permitted in the constitutionally prescribed division of powers by having both a concurrent majority of the local governing body and the state legislature 

participate in passing special acts of the legislature. 

Second, New Jersey’s constitution provides guidance 

to policymakeIs on the reading of constitutional provisions 

empowering local govemments. For example, it states: 

The provisions of this Constitution and of any law 

concerning municipal corporations formed for local government, or concerning counties, shall be 

liberally construed in their favor. The powers of 

counties and such municipal corporations shall 

include not only those granted in express terns 

but also those of necessary or fair implication, or 

incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law?* 

It is the stated “liberal construction” of local government powers that counteracts the effect of Dillon’s Rule 

and may produce a greater degree of functional autonomy 

than a more conventional constitutional grant of home 

rule. In 1973, for example, the New Jersey Supreme Court 

sustained a municipal rent control scheme under a statutory grant of authority to adopt such ordinances as the local governing body “may deem necessary and proper for 

the good government, order, and protection of persons 

and property, and for the preservation of the public 

health, safety, and welfare of the municipality and its inhabitant~.”~~ Thecourts even upheld the municipal creation of a rent control board as a power necessary to carry 

out the regulatory purpose of a rent control ordinance, 

even where no statute existed authorizing municipalities 

to establish one. By contrast, ayear earlier, the Florida Supreme Court strictly construed a home rule municipality’s 

constitutional authority to “exercise any power for municipal purposes” when it overturned a similar ordinance.64 

A third key constitutional provision is found in the 

New Jersey taxation and finance article, in addition to the 

matters normally found in such articles. It contains a provision that makes the delivery of certain services, notably a 

“thorough and efficient system of free public schools,” a 

state responsibility.6s This paragraph is read to mandate 

that the state create a funding scheme for public education that does not shift its financial burdens exclusively to 

local taxing jurisdictions.66 

Local or Special Legislation 

Local or special legislation, a mainstay of the state 

legislature’s policy repertoire during the nineteenth century, has received much negative consideration during the 

twentieth century. Nonetheless, it may be time to review 

that opinion. For instance, although the recent elimination of local or special legislation from the South Carolina 

Constitution has been hailed as part of “the journey toward local self-g~vernment,”~’ others have viewed special 

legislation as “conducive to greater independence and exU.S. Advisory Commission on intergovernmental Relations 45 
panded self-rule” and as an “essential means for ensuring 

flexibility and adaptability.”@ The framers of the Constitution of Virginia apparently thought so when they rejected 

the constitutional revision commission’s recommendations to restrict the General Assembly’s authority to devolve powers on local governments by special act.w The 

Virginia system apparently does deliver. In ACIRs index 

of city discretionary authority, Virginia cities ranked 

seventh overall. By comparison, such traditional bastions 

of home rule as Ohio and California placed eleventh and 

seventeenth, respe~tively.~~ 

Interlocal Collaboration 

Another significant response to the difficulties with 

the devolution-of-powers model is represented by the 

emergence of state constitutional and statutory rules governing interlocal collaboration. A recent ACIR report has 

identified enabling rules that determine the choices that 

local citizens may use to create and modify local government~.~~ In that report, the notion of a local government 

constitution is not limited, as it is in lawyer’s discourse, to 

state constitutional provisions. These enabling rules are 

sorted out into four types: 

(1) Rulesof association (ie., those that establish 

processes, such as municipal incorporation, 

that enable local citizens to create municipalities or other entities endowed with certain 

governmental powers); 

(2) Boundary adjustment rules that enable local 

citizens and officials to alter the boundaries 

of existing units; 

(3) Fiscal rules that determine local revenueraising authority; and 

(4) Contracting rules that enable local units to 

enter into a variety of mutually agreeable relationships with one another and with private 

fms.72 

The departure from conventional thinking called for 

by these categories casts new light on the significance of 

inserting into state constitutions such matters as dissolution and annexation, consolidation and separation, joint 

participation in common enterprises, interlocal cooperation, and intergovernmental relations, as is done in Mis- 

~ouri.’~ It also clarifies rules concerning the formation, 

operation, and dissolution of special districts, which are 

embedded in the local government article of the 1974 

Louisiana Constit~tion.~~ Finally, this approach shifts the 

focus of attention from a preoccupation with conflict to a 

recognition of the pervasive collaboration through contractual arrangements that obtains in modem state and local go~ernment.~~ 

46 U.S. Advisory Commis 

Illinois and the Devolution-of-Powers 

Approach 

The text of the local government article of the 1970 

Illinois Constitution provides a particularly interesting departure from the devolution-of-powers model. The distinction is, perhaps, not so much of content but the placing 

of specific local government authority within a constitutional framework. In Illinois, the powers are addressed in 

the constitution as opposed to being addressed in statute 

as the result of more general constitutional provisions. 

Article VII of the Illinois Constitution illustrates the complex kind of decision rules that must be supplied if the goal 

of entrenching the rights of local governments and local 

citizens is to be realized. These decision rules include: 

(1) The definition of entities eligible for home 

(2) The scope of powers afforded home rule en- 

(3) The interpretation of granted powers; 

(4) Interlocal conflict and collaboration; and 

(5) The problem of state legislative control over 

Woven throughout the fabric of the article are requirements for local citizen choice. 

The complexity of these rules reflects not only the difficulty of coming to terms with the multifaceted roles that 

local governments play in the division of governmental responsibilities in a modem society but also the differentiated political culture that flourishes in Illin~is.’~ Neglect 

of the political truism that “all politics is local” undoubtedly contributed to the failure of a constitutional reform 

package in Maryland that sought to streamline the institutions of local g~vernance.~~ 

Counties, cities, villages, and incorporated towns in 

Illinois are eligible for home rule tatu us.'^ A self-executing 

grant of home rule powers to certain counties and to municipalities with a population of more than 25,000 is subject to repeal by referendum. Otherwise, home rule status 

can be acquired only by referendum.79 

In contrast to devolution-of-powers constitutions, the 

Illinois article distinguishes between several kinds of local 

autonomy: form of government and office holding, functions, and fiscal matters. A home rule unit can adopt, alter, or repeal its currently prescribed form of government 

subject to referendum approval.8O Home rule municipalities and home rule counties possess diverse powers with 

respect to the creation, manner of selection, and terms of 

office of local officials.Sl 

“A home rule unit may exercise any power or perform 

any function pertaining to its government and affairs,”82 

the article states. What is pertinent to its government and 

affairs is defined expressly to include a copious grant of 

rule status; 

tities; 

the scope of home rule powers. 

sion on Intergovernmental Relations 
the police power “to regulate for the protection of the 

public health, safety, morals, and welfare” and “to licen~e.”~~ This grant of power expressly includes the power 

to tax and to incur debt, attributes of fiscal autonomy without which home rule would be straitjacketed in 

The Illinois Constitution also addresses and resolves 

the problem created by Dillon’s Rule: How are decisionmakers to read the empowering text? The blunt answer is 

that ‘‘[plowers and functions of home rule units shall be 

construed liberally.”85 Counties and municipalities that 

arenot home rule units “shall have onlypowers granted to 

them by law” plus expressly granted constitutional powers 

over form of government and officeholding, fiscal matters, and providing for local improvements and services.86 

Limited purpose units of local government, such as townships, school districts, and special districts, “shall have 

only powers granted by law.””’ 

In addition, the article prescribes rules for resolving 

conflicts between legislative enactments of home rule cities 

and home rule counties!” It also is sprinkled with provisions aimed at facilitating interlocal cooperation by contract and power ~haring.8~ 

Finally, the article speaks to the neglected but pervasive question of state preemption of home rule 

Courts customarily have used rules of statutory construction 

to resolve alleged conflicts between state and local laws, 

largely in favor of the state?] Experts in local government 

law have pointed out the destructive impact of doctrines of 

implied preemption and preemption by occupation of the 

field on the reach of home rule powers?z Even in jurisdictions like Alaska, which adopt the devolution-of-powers 

approach, the constitution speaks to the preemption issue 

by stating that a home rule entity may exercise “all legislative powers not prohibited by law.’N3 

A fair reading of this language would seem to require 

some clear statement of state legislative desire to displace 

a home rule 0rdinance.9~ Lest such subtlety be as lost on 

the courts of Illinois as it was in Alaska, the Illinois home 

rule provision makes crystal clear that “home rule units 

may exercise and perform concurrently with the State any 

power or function of a home rule unit to the extent that 

the General Assembly by law does not specifically limit 

the concurrent exercise or specifically declare the state’s 

exercise to be excl~sive.’~~ There is no room for a doctrine 

of implied preemption in this language. 

The express preemption question is dealt with generally as follows: “[Tlhe General Assembly may provide specifically by law for the exclusive exercise by the State of any 

power or function of a home rule unit.’@‘When the state 

chooses not to assert a monopoly, a three-fifths supermajority is required to deny or limit a home rule entity’sfiscal 

and other powers.97 Significantly, only two areas of home 

rule autonomy are protected against legislative limitation 

or denial: the power to add to the stock of local capital improvements by special assessment and the power to finance the provision of special services?” 

Greater Fiscal Autonomy 

A tilt toward local fiscal autonomy, proposed in the 

1953 AMA proposal and highlighted in ACIR’s studies, has 

come to fruition in recent amendments to several state constitutions concerning the proliferation of state mandatesw 

The 1975 California provision requires the state to reimburse local governments if any new program or higher 

level of service cost is mandated.‘OOTaken in the context of 

the taxpayer rebellion of the 197Os, the provision’s primary 

objective is to guard against a potential “smoke and mirrors” 

device that would enable the state legislature to evade tax 

and spending limits by shifting costs to local governments. 

Nevertheless, an arguably unintended consequence 

of the reform creates a protected sphere of local fiscal autonomy. For example, the Missouri Constitution requires 

not only that the state fund “any new activity or service or 

any increase in the level of any activity or service beyond that 

required by existing law” but also that “the state cannot reduce the state financial proportion of the costs of any existing 

activity or service required of. . . political subdivisions.”1o1 

The Missouri language substantially affects two common dogmas of state constitutional law: (1) the state possesses virtually untrammelled power to impose duties and 

obligations on local governments; and (2) state funding of 

existing programs is a matter of legislative grace.’O* 

Free-standing provisions of the Hawaii and Tennessee 

constitutions direct the state to share in the costs of legislation imposing increased expenditures on cities and counties.Io3 Several states have created statutory rules 

directing either that the state reimburse mandates or that 

the fiscal impact of proposed legislation on local government be estimated and made known to legislators before 

they take final action on the legi~lation.’~~ 

As local government has developed and become more 

important to the states, which have seen their responsibilities balloon in the twentieth century, the states have integrated local government into the complex provision of 

services to their citizens. To do this, the constitutional relationship between the state and its localities has undergone significant change. These changes have included: 

The 1875 Missouri constitutional provision 

that broadly empowered one city, St. Louis, 

but created no meaningful bamer to state legislative interference with municipal matters; 

California‘s constitutional revision, on citizen 

initiative, to bar state legislative meddling 

with municipal affairs; 

U.S. Advisory Commission on Intergovernmental Relations 47 
b New York’s bill of rights on local governments; 

b The American Municipal Association’s mod- el state constitution making the state legislature the ultimate arbiter of the scope of 

home rule; 

The Illinois constitution marking the reemergence of complex rules for outlining the relationship between state and local government; 

and 

The New Jersey statutoq home rule approach. 

These changes in law promoting local government autonomy make it important to look at the increasing judicial 

review of state-local relations that has taken place during 

the last decade. 

Notes 

Isidor Loeb and Floyd C. Shoemaker, eds., Debatesof the Mis- souri Constitution Convention of 1875 (Columbia: State Histor- ical Society of Missouri, 1944), Vol. 12, pp. 444-499. 

Hereinafter, DEBATES. 

’Oxford English Dictionw, 2d edition (Oxford Oxford Univer- sity Press, 1989), Vol. 7, p. 330. 

Ibid. 

William B. Munro, “Home Rule,” Encyclopedia of the Social 

Sciences(New York Macmillan Company, 1930), Vol. 4, p. 434. 

’As Delegate Todd floridly observed: 

What we are asking for a place in the Constitution is 

stability. It is for the purpose of establishing one local 

government upon a rock & not upon quicksand as it has 

been for the last twenty years, to be blown over by every 

wind & flood of bummerism, high fraud and rascally 

speculators. 

DEBATES, pp. 470-471; see also pp. 445,468. It should be 

noted that this concern appeared to quite general across the 

nation. Compare, for example, the constitutional amendment 

in New Jersey of the same year. 

6Missouri Constitution of 1875, Art. IX, B$u1-25. These provi- sions were drafted, sponsored and debated largely on the ini- tiative of the St. Louis delegation to the Convention. 

DEBATES, pp. 473,476. 

Missouri Constitution of 1875, Art. IV, $53. 

‘DEBATES, p. 477 (remarks of Delegate Gottschalk). 

bid., pp. 449-450 (remarks of Delegate Hale). 

lo bid., p. 467 (remarks of Delegate Taylor of St. Louis); see also 

pp. 459-460 (remarks of Delegate Gantt). 

Missouri Constitution of 1875, Art. IX, 5620-22. Local imple- mentation of the charter process is described in Thomas S. 

Barclay, The St. Louis Home Rule Charter of 1876 (Columbia: 

University of Missouri Press, 1902). 

”bid., Art. IX, $20, 522, $23. 

l3 DEBATES, p. 476 (remarks of Delegate Fyan). 

l4 Missouri Constitution of 1875, Art. IX, $25 

15Kansas City v, Stegmiller, 151 Mo. 189, 52 S.W. 723 (1899). 

16Howard Lee McBain, 77ie Law and Practice of Municipal 

Home Rule (New York: Columbia University Press, 1916), p. 

125. 

l7 James E. Westbrook, “Municipal Home Rule: An Evaluation 

of the Missouri Expenence,”Mksoun’Lm Review 33 (1,1968): 

45. 

‘8Vanlandingham’s assertion notwithstanding, it is simply not 

so, and is expressly contradicted by the cases which he cites. 

Compare, for instance, Kenneth E. Vanlandingham, “Munici- pal Home Rule in the United States,” William and Mary Law 

Review 10 (Winter 1968): 278,284-285, with State ex rel. Kansas 

City v. Field, 99 Mo. 352, 355 (1889). 

l9 James E. Westbrook, “Municipal Home Rule: An Evaluation 

of the Missouri Experience,” pp. 46-47,51. 

”St. Louis v. Sternberg, 69 Mo. 289 (1879). 

21 Missouri v. Lewis, 101 U.S. 22 (1879). 

22 Debates and Proceedings of the Constitutional Convention of the 

Stateof Calvomia (Sacramento, 1881), Vol. 2, p. 1059-1060 (re- marks of Delegate Hager), p. 1063 (remarks of Delegates 

Brown and Reynolds). 

Ibid., p. 1060 (remarks of Delegate Barbour). 

Ibid., p. 1063 (remarks of Delegate Howard of Los Angeles). 

=Ibid., p. 1061 (remarks of Delegate Hale). 

261bid., p. 1062 (remarks of Delegate Freeman). 

271bid. (remarks of Delegate Howard of Los Angeles). 

28 Ibid., p. 1063 (remarks of Delegate Winans). 

29 Ibid., p. 1064. 

3oMissouri v. Lewis, 101 U.S. 22, at 30,32 33. 

31 Francis H. Thorpe, ed., The Fedeml and State Constitutions, 

Colonial Charters, and Other Oeanic Laws of the United States 

(Washington, DC: U.S. Government Printing Office, 1909), 

Vol. 1, p. 456. (California Constitution, Art. XI, $6, adopted 

1896) 

32 Ibid., p. 459. (California Constitution, Art. XI, $8, adopted 

33 Vanlandingham, “Municipal Home Rule in the United 

States,” p. 279. 

34 Bernard Bailyn, The Ideological Origins of the American Revo- lution (Cambridge, Massachusetts: Belknap Press, 1967), p. 

223. 

351bid. 

%Michael H. Frisch, “Urban Theorists, Urban Reform, and 

American Political Culture in the Progressive Period,” Political 

Science Quarterly 97 (Summer 1982): 295. 

37NewYorkConstitution, Art. IX, 511-3;Peter J. Galie, TheNew 

Yo& State Constitution (Westport, Connecticut: Greenwood 

Press, 1991), pp. 210-211. 

1905) 

”New York Constitution, Art. IX, $1. 

39 Ibid. 

41 Ibid., 52(c). 

42 Ex parte Braun, 141 Cal. 204,213-214 (1903). 

43 Thorp, ed., The Fedemland State Constitutions, vol. 7, p. 3995. 

(Washington Constitution, Art. XI, 511, 1889) 

“State exrel. Navinv. Weir, 26 Wash. 501 (1901);Durban v. Spo- kane, 27 Wash. 615 (1902); Seattle Electric Company v. City of 

Seattle,78 Wash.203(1914). SeeMcBain, TheLawandPractice 

of Municipal Home Rule, pp. 429-436. 

“State ex rel. Mueller v. Thompson, 149 Wis. 488, 517-518 

(19 12). 

46 Jefferson B. Fordham and Joe E Asher, “Home Rule Powers 

in Theory and Practice,” Ohio State Law Journal 9 (1,1948): 18. 

47 James D. Cole, “Constitutional Home Rule in New York: The 

Gist of Home Rule,” St. John’s Law Review 59 (Summer 1985): 

Ibid., Art. IX, $2(a) and @). 

48 U.S. Advisory Commission on Intergovernmental Relations 
713,716. See Connecticut Advisory Commission on Intergov- ernmental Relations, Defining Statewide vs. Local Concerns: 

Can It Be Done and Is It Necessary? (Hartford, 1989). 

Kenneth E. Vanlandingham, “Constitutional Municipal 

Home Rule Since the AMA (NLC) Model,’’ William and Mary 

Law Review 17 (Fall 1975): 1. 

49 American Municipal Association, Model Constitutional Provi- sions for Municipal Home Rule (Chicago, 1953), p. 19. 

Goodnow, Municipal Home Rule, p. 253. 

51 Ibid., pp. 252 4. The Prussian enactment was the creation of 

Baron von Stein. W. Hardy Wickwar, The Political Theory of 

Local Government (Columbia: University of South Carolina 

Press, 1970), pp. 32-37. See Guy Stanton Ford, Sfern and the Em 

ofRefom in Prussia (Princeton, New Jersey: Princeton Univer- sity Press, 1922). 

52 Kenneth Fox, Better City Government (Philadelphia: Temple 

University Press, 1977), pp. 39-41; Robert H. Wiebe, The 

Search for Order 1877-1920 (New York Hill and Wang, 1967), 

p. 170; Samuel F? Hays, “The Politics of Reform in Municipal 

Government in the Progressive Era,” Pacific Northwest Quartedy 55 (October 1964): 157 and “The Changing Political Struc- ture of the City in Industrial America,” Jozrrnal of Urban 

History 1 (November 1974): 6. 

53 American Municipal Association, Model Constitutional Provi- sions for Municipal Home Rule, pp. 19-20. 

54 Ibid., pp. 23-24. 

55National Municipal League, Model State Constitution, 6th ed., 

56 Missouri Constitution, Art. VI, $ 19(a); Pennsylvania Constitu57N~rth Dakota Constitution, Art. VII, $1. 

58 American Municipal Association, Model Constitutional Provi59 Ibid. 

boNew Jersey Constitution, Art. IV, $7, para. 2@); para. 7-12; 

Art. VII, $3,$4. For commentary, see Robert E Williams, The 

New Jersey State Constitution (Westport, Connecticut: Green- wood Press, 1990). 

(New York, 1963), pp. 94-100. 

tion, Art. IX, $2. 

sions for Municipal Home Rule, p. 20. 

61New Jersey Constitution, Art. IV, $7, para. 9(13); para. 10. 

62New Jersey Constitution, Art. IV, $7, para. 11. 

631nganamort v. Borough of Fort Lee, 62 N.J. 521 (1973). 

64City of Miami Beach v. Fleetwood Hotel, Inc, 261 So. 2d 801 

(1972) (Florida Constitution, Art. VIII, $2(b)). 

65New Jersey Constitution, Art. VIII, $4, para. 1. 

&Abbott v. Burke, 100 N.J. 269 (1985). 

67 James L Underwood, The Constifufion of South Carolina (Co- lumbia: University of South Carolina Press, 1989), Vol. 2,77ie 

Journey Toward Local SelfGovemment. 

Don C. Tea ford, The Unhemlded Triumph: City Goveniment in 

America, 1870-1 900 (Baltimore: Johns Hopkins University 

Press, 1984), p. 94. 

69 See “Report of the Commission on Constitutional Revision,” 

77ie Cotistitiition of Ktginia (Charlottesville, Virginia: The Michie Company, 1969). p. 228. Compare that with the Virginia 

Constitution, Art. VII, $3. 

70 U.S. Advisory Commission on Intergovernmental Relations 

(ACIR), Measuring Local Discretionary Autliorify (Washington, 

DC, 1981) p. 59. 

71 ACIR, rite Organization of Local Public Economies (Washington, DC, 1987), p. 39. 

72 Ibid. 

73 Missouri Constitution, Art. VI, $5, $14,$16, $30(a). See ACIR, 

Metropolitan Organization: Tile St. Louis Case (Washington, 

DC, 1988). 

74LOuisiana Constitution. Art. VI, $15, $16, 918,119, 838,843. 

See Lee Hargrove, The Louisiana State Constitution (Westport, 

Connecticut: Greenwood Press, 1991); Robert B. Hawkins, Jr., 

Self Government by District: Myth and Reality (Stanford, California: Hoover Institution Press, 1976). 

75M~rton Grodzins, The American System (Chicago: Rand 

McNally and Company, 1966); Gary J. Miller, Cities by Con- tract (Cambridge, Massachusetts: The MIT Press, 1981); Wil- liam G. Colman, State and Local Government and PublicPrivate Partneidiips (Westport, Connecticut: Greenwood Press, 

1990); Joseph E Zimmerman, State-Local Relations: A Partnership Approach (New York Praeger Publishers, 1983) pp. 34-37. 

76Elmer Gertz and Joseph F? Pisciotte, Charterfora New Age:An 

Inside View of the Skth Illinois Constitutional Convention (vrban= University of Illinois Press, 1980)) pp. 244261; Daniel J. 

Elm, “The Principles and Traditions Underlying State Constitutions,” Publius: 77ie Journal of Federalism 12 (Winter 1982): 18. 

77 John I? Wheeler, Jr. and Melissa Kinsey, Magnificent Failure: 

The Maryland Constitutional Convention of 1967-1968 (New 

York National Municipal League, 1970), pp. 210-212. 

78111inois Constitution, Art. VII, 1, $4(a), $6(a). 

791bid., Art. VII, $@a), (b). 

Ibid., Art. VII, $6(f). 

81 Ibid. 

82 Ibid., Art. VII, $6(a). 

83 Ibid. 

84 Ibid. and Rubin G. Cohn, “Municipal Revenue Powers in the 

Context of Constitutional Home Rule,” Norfltwestem Universi- ty Law Review 51 (1, 1957): 27. 

85 Illinois Constitution, Art. VII, $6(m). 

861bid., Art. VII, $7, 

87 Ibid., Art. VII, $8. 

88 Ibid., Art. VII, $6(c). 

891bid., Art. VII, $6(1Xl), $7(1), $10. 

Janice C. Griffith, “Connecticut’s Home Rule: The Judicial 

Resolution of State and Local Conflicts,” University of Bridge- port Law Review 4 (2, 1983): 177, 212247; Richard Briffault, 

“Taking Home Rule Seriously: The Case of Campaign Reform,” Proceedings of the Academy of Political Science 37 (3, 

1989): 35,38-45. 

91 Griffith, “Connecticut’s Home Rule,” p. 213. 

92Che~ter J.Antieau, Municipal Cotporntion Law (New York 

Matthew Bender and Company, 1968), Vol. 1,292.38; Stewart 

Dalzell, “The State Preemption Doctrine: Lessons from the 

Pennsylvania Experience,” University of Pittsburgll Law Review 

33 (2, 1971): 205; Millard H. Ruud, “Legislative Jurisdiction of 

Texas Home Rule Cities,” Tam Law Review 37 (June 1959) 682 

93 Alaska Constitution, Art. X, 111 (emphasis added). 

94C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- cal Government Law (Wilmette, Illinois: Callaghan and Com- pany, 198l), Vol. 1, $4.10.50. But see Chugach Electric 

Association v. City of Anchorage, 478 I! 2d 115 (Alaska, 1970). 

95 Illinois Constitution, Art. VII, $6(i). 

961bid., Art. VII, $6(h). 

97 Ibid., Art. VII, $6(g), (j). 

98 Ibid., Art. VII, $6(1). 

99 American Municipal Association, Model Constitutional Provisions for Municipal Home Rule; ACIR, State Mandating of Lo- cal Expenditures (Washington, DC, 1978). 

U.S. Advisory Commission on Intergovernmental Relations 49 
loo California Constitution, Art. XIII, B16. 

lol Missouri Constitution, Art. X, 21; Art. XII, $2(b). 

lo* Sands, Ldbonati, and Martinez, Local Government Law, Vol. 1, 

lo3 Hawaii Constitution, Art. VIII, 55; TennesseeConstitution, 

Art 11, $24, discussed in Lewis L Laska, The Tennessee State 

Constitution (Westport, Connecticut: Greenwood Press, 1990), 

pp. 82-83. 

lo4 US. General Accounting Office, Legislative Mandates (Wash- ington, DC, September 1988). 

3.12 

50 U.S. Advisory Commission on intergovernmental Relations 
Chapter 5 

RECENT TRENDS IN JUDICIAL DECISIONS 

AFFECTING LOCAL AUTONOMY: 1978-1 992 

The 1978-1992 period did not produce the sweeping 

changes in local initiative that were seen in the modernization of state constitutions in 16 states between 1956 and 

1978.' State courts in this later period came to grips with 

more mundane problems of applying revised state constitutional provisions to a wide variety of significant issues in 

state-local relations. This chapter examines cases decided 

between 198-1992 concerning local government autonomy 

in determining general issues as well as issues of governmental structures, functions, fiscal matters, and personnel. 

Significant state supreme court decisions have been 

(1) Local government capacity to sue the state; 

(2) Constitutionality of local or special legislation; 

(3) The scope of protection afforded by the rip- 

(4) Interlocal cooperation. 

A brief review of recent trends in these decisions folrendered during this period concerning: 

per clause; and 

lows. 

Capacity to Sue 

State constitutional texts apparently grant powers of 

both initiative and immunity to local governments, just as 

they provide the same to individuals. Yet, in 1978, the doctrine concerning the juridical status of local government 

units centered on the belief that the state constitution 

conferred no rights on a local government unit as against 

the sovereign state. Consequently, a local government 

had no capacity to assert state constitutional claims 

against the state sovereign.z 

Several state supreme courts, however, have begun to 

take a new look at whether local government units possess 

at least a minimal attribute of structural autonomy (i.e., 

the capacity to have constitutional rights and to invoke 

them against infringing state agencies and instrumentalities). New York's highest court broke with precedent in 

1976 when it heard a town's challenge to a statute that allegedly stripped the jurisdiction of authority guaranteed 

by the state constitution's bill of rights for local government~.~ The Colorado Supreme Court held in 1987 that a 

home rule city could stand in the shoes of its citizens to 

question whether a state statute violated state constitutional prohibitions against local and ripper legislation? In 

a carefully reasoned decision in 1985, the Utah Supreme 

Court ruled that a local government may invoke the state 

constitution against the state if it meets the traditional 

tests applied to private parties claiming standing to sue; 

namely, a sufficiently adverse interest and a legally protected interest in the controver~y.~ 

Utah (1985) and Massachusetts (1988) now recognize 

that a local government unit has the capacity to vindicate 

claims on issues of great public importance lest the matter 

otherwise be effectively insulated from constitutional 

scrutiny.6 The scope of potential state constitutional 

claims now subject to judicial review at the behest of local 

government units includes taking of property without 

compensati~n,~ deprivation of procedural due process,8 and 

state failure to meet constitutional funding obligations? 

Constitutionality of local 

or Special Legislation 

The subject of local or special legislation is a vexing 

one. In states that prohibit local or special laws that affect 

individual jurisdictions only, state supreme courts have 

tended historically to defer to the state legislature's judgment in determining whether a statute is general (and, 

therefore, constitutionally valid) or local (and, probably, 

constitutionally invalid).'O Indeed, some state constitutions have had to be amended to require courts to exercise 

the power of judicial review over the validity of classifications adopted by the state legislature." 

Some jurisdictions continue to follow the rule that the 

U.S. Advisory Commission on Intergovernmental Relations 51 
prohibition against local legislation does not reach legislation 

dealing with a matter of statewide concern, even though it 

applies to only one community.12 Others apply a rationalbasis test, under which the statute is deemed general if the 

classification principle limiting its application relates to the 

objective of the statute. Thus, the Tennessee Supreme Court 

(in 1985) sustained a statute mandating that the largest 

county in the state establish a civil service system because of 

the size and complexity of its personnel 0rganizati0n.l~ 

Nevertheless, during 1978-1992, there was a discernible trend toward a more searching judicial scrutiny of legislation challenged as local or special. The Arkansas 

Supreme Court in 1984 began to enforce that state’s constitutional prohibition after a long period of judicial indifference.14C~n~tit~tional revision in South Carolina thrust 

its Supreme Court into the fray in 1982 after nearly two 

centuries as a jurisdiction permitting local or special legis1ati0n.l~ The Ohio Supreme Court held in 1986 that statutes treating one local government unit differently from 

similar localities in the state are subject to invalidation on 

state equal protection grounds.16 In addition, the Wisconsin Supreme Court in 1988 replaced its formerly slack review of legislative classification challenged as local with a 

more stringent test, while the Illinois Supreme Court did 

exactly the reverse.” 

In 1985, Washington, Colorado, and Pennsylvania, 

which nonnally sustain classifications based on population as 

rational without further debate, made it clear that some statutes could and did flunk the rationality test.’” In 1989, the 

Rhode Island Supreme Court applied provisions of its constitution that are specifically worded to protect home rule 

entities against state legislative incursions into local matters 

when those incursions do not bind all cities and towns in the 

state.19 The Commonwealth of Massachusetts’ highest court 

(in 1981) protected Boston’s autonomy from state legislation, which applied to Boston alone, in accordance with the 

home rule amendment to the state constitution.” That 

amendment limits the legislature’s power to act in relation to 

cities and towns by creating a class of fewer than two. 

Ripper Clauses 

The ripper clause, like the prohibition against local or 

special legislation, confers immunity but not initiative on 

local governments by bamng state legislation that delegates municipal functions to a special commission. 

During 1978-1992, the Utah Supreme Court softened 

its previously robust construction of this clause. Originally, in 1957, it had struck down a statute authorizing a state 

agency to regulate municipal sewer systemson the ground 

that the provision was “intended to assure the city freedom from outside supervision and control ‘over’ any activity properly engaged in by the city or municipality whether 

governmental or proprietary.”*l In a 1988 decision, however, the court substituted a balancing approach that renounced its previous efforts to erect “mechanical 

conceptual categories that, without serving any substantial 

interest, may hobble the effective government which the 

state constitution as a whole was designed to permit.”22 

In another case, the Pennsylvania Supreme Court 

(1980) ruled that legislative powers were improperly delegated if a state agency or instrumentality compelled a local 

government to legislate, to levy taxes, or to appropriate 

funds.23 

Interlocal Agreements -Service Transfers 

A state constitutional provision setting forth rules for 

interlocal collaboration undoubtedly facilitates such arrangement~.~~ Local consent may be called for, as in Florida, where the Supreme Court interpreted the pertinent 

constitutional provision to require dual referenda to approve a proposed transfer of service provision powers or 

functions from municipality to county.25 

Where a statutory policy requiring interlocal cooperation is inserted into a state constitution that has not been 

carefully reviewed for conformity with a policy encouraging such activities, the results are often unpredictable. Accordingly, a statute transferring regulatory powers from a 

county to a town was judged in 1989 to be an unconstitutional local law regulating county business in 

attempt in Rxas to transfer functions to the county was 

held in 1989 to be an unconstitutional deprivation of the 

right of school district voters to withhold local consent to a 

proposed consolidation of governmental functions.27 

In the area of governmental structure, the state supreme courts have made some important decisions on (1) 

delegations of power by the state legislature to local governments and (2) home rule. 

What follows is a short description of the judicial 

trends in these areas. 

Delegations of Power 

The North Carolina Constitution states, “The General 

Assembly . . . may give such powers and duties to counties, 

cities, and towns, and other governmental subdivisions as 

it may deem advisable.”280ne would suppose such a provision to be superfluous in view of the normal interpretation 

that a state constitution is a document limiting the otherwise plenary powers of the legislature.r) This assumption, 

however, fails to take into account the strength and persistence of the delegation doctrine in the states. 

52 U.S. Advisory Commission on Intergovernmental Relations 
For example, the Kentucky Supreme Court held in 

1977 that the state legislature did not have the authority to 

delegate broad home rule powers to co~nties.’~ Inaddition, the Nebraska (1988) and Rhode Island (1987) supreme courts invalidated a grant of legislative power over 

licensing that did not impose adequate standards to guide 

a local government body’s exercise of discretion.” Connecticut’s Supreme Court in 1989 intimated that a broad 

grant of police powers to local government would be constitutionally problematic were it not for a provision in the state 

constitution expressly permitting the legislature to do so.32 In 

Kansas, the legislature is permitted by a 1985 decision to vest 

general purpose units of local government with legislative 

powers only as to “matters of local concern.”33 

Home Rule 

A canvass of recent cases reveals that courts are more 

likely to read constitutional grants of home rule power as 

confemng the initiative on local governments to arrange 

their own structures and procedures locally. Indeed, the 

Oregon Supreme Court in 1978 reinterpreted its home 

rule provisions in this manner.’4 

Along the same lines, a court in Louisiana in 1988 declared that a home rule county could create a department 

of juvenile services without permission of the legislat~re.’~ Furthermore, New York in 1987 and Colorado in 

1988 sustained local measures designed to facilitate the effective performance of administrative tasks, such as tax 

collection and the provision of service^.'^ In the late 198Os, 

the Illinois, Kansas, Louisiana, and Ohio Supreme Courts 

upheld home rule ordinances and charter provisions regulating local legislative procedure^.^' Pennsylvania’s Supreme Court (1986) ruled that a two-term limit for mayor 

was within a city’s home rule 

The Louisiana Supreme Court in 1984 invalidated a 

state statute for infringing on a home rule government’s 

constitutionally protected initiative to organize itself with 

respect to matters of structure and procedure.M 

Courts in two other jurisdictions, however, rejected 

similar home rule claims on the basis of a purported state 

interest. The California Supreme Court held in 1988 that a 

statute empowering city councils to impose development 

fees dealt with a matter of statewide concern. According 

to the court, that statute carried with it the “authority to 

impose procedural restrictions on the exercise of the power granted, including the authority to bar the exercise of 

the initiative and referend~m.”~” In the second instance, 

in 1980, the Oregon Supreme Court did not allow the 

home rule provisions of the state constitution to prohibit 

general laws from imposing procedural constraints on 

home rule In 1988, the court also held that home 

rule units cannot impose duties on county and state election officials regarding procedures for conducting an advisory vote on proposed ordinances.“* 

When it is determined that a particular subject falls 

within the scope of home rule powers, courts must still decide if the local action should be preempted by state law. 

That is, “to what extent are local home rule powers limited, in dealing with a particular subject, by the existence 

of state statutes relating to the same In making 

this judgment, some state courts, in jurisdictions that employ 

terminology like local or municipal to distinguish the types of 

activities over which local governments may exercise control, 

fail to distinguish two severable issues, namely, 

(1) Whether or not the matter is of local or municipal concern and is, therefore, appropriate 

for home rule action, and 

(2) Whether or not the matter, even if within the 

scope of home rule initiative, ispreemptedby 

state law?4 

State courts may limit sharply the scope of home rule 

initiative over procedural matters by finding that a tangentially related state law implies preemption of a home rule 

charter or ordinance. For example, the Hawaii Supreme 

Court ruled in 1988 that a charter provision authorizing 

the local prosecutor to issue investigative subpoenas without the procedural restrictions conditioning a similar statutory grant to the state attorney general was inconsistent 

with and, therefore, by implication preempted by the more 

stringent state law ~tandards.4~ 

Autonomy of function embraces every regulatory and 

service aspect of local government. A comprehensive 

treatment of every development in this area is, therefore, 

unworkable. One may, however, focus on a specific trend 

discernible in the case law during this period: the tendency 

of courts to rethink their position on the doctrine of regula tory preempt ion. 

In order to understand what is taking place, following 

is a brief review of provisions pertinent to preemption and 

of some significant preemption decisions. When it is determined that a particular subject falls within the scope of 

home rule powers, policymakers often confront the 

preemption question. 

Preemption encompasses both express and implied 

preemption?6 As to express preemption, legislative home 

rule provisions do not protect home rule entities from 

state statutes expressly limiting their powers and functions. In states that confer home rule over municipal affairs, a statute expressly limiting home rule functions 

raises a state constitutional law issue. That issue is whether or not the home rule unit has the exclusive right toreguUS. Advisory Commission on Intergovernmental Relations 53 
late the function. That is to say, can the function serve as a 

“municipal affair,” free from legislative interferen~e?~~ 

No decisions were issued between 1978-1992 in which 

the home rule unit successfully claimed that a regulatory 

matter was of exclusively municipal concern. The Colorado Supreme Court, however, muddied the waters of state 

predominance in regulatory affairs by ruling in 1988 that 

the control of outdoor advertising signs within a home rule 

municipality was of mixed state and local concern. Nevertheless, the state enactment prevailed over the local ordinan~e.~~ This case dovetails with the trend found in cases 

involving claims of immunity from state legislative interference as to personnel and structural matters, where the 

protected sphere of freedom for home rule entities has 

been eroded. 

In cases involving implied preemption, the courts are 

more unwilling to displace assertions of local regulatory 

initiative. Implied preemption analysis comes into play 

when the state legislature enacts a regulatory statute that 

is silent as to whether political subdivisions are or are not 

permitted to create supplementary local legislation or to 

enter into the field covered by state law.49 

Many state constitutional grants of home rule authority 

are consciously phrased to exclude the application of implied 

preemption to home rule entities. For example, the Montana Constitution says that “a local government unit adopting a self-government charter may exercise any power not 

prohibited by this constitution, law, or charter.”50 The Illinois 

Constitution, as has been mentioned already, states that: 

Home rule units may exercise and perform concurrently with the state any power or function of a 

home rule unit to the exlent that the General Assembly does not by law spec#cally limit the concurrent 

exercise or specifically declare the States’ exercise to 

be concl~sive.~~ 

In other states, pertinent constitutional language invites the judiciary to establish a doctrine of preemption 

along the lines indicated by the language employed. Thus, in 

Iowa, “municipal corporations are granted home rule power 

and authority, not inconsistent with the laws of the general 

assembly, to determine their local affairs and g~vernment.”~~ 

Washington’s constitution states, “any county, city, town or 

township may make and enforce within its limits all such 

local police, sanitary and other regulations as are not in 

conflict with general 

In Texas, judicial interpretation has turned every empowerment question into a preemption problem: 

Cities. . . may.. . adopt or amend their Charters, 

subject to such limitations as maybe prescribed by 

the State legislature, and providing that no Charter or any ordinance passed under said Charter 

shall contain any provision inconsistent with the 

Constitution of this State, or of the general laws 

enacted by the legislature of this State. . . ?4 

In 1979 and 1984, the Illinois Supreme Court issued 

two significant decisions recognizing concurrent regulatory jurisdiction of the state and a home rulecounty over environmental 

In addition, the Pennsylvania Supreme Court in 1984 

characterized an alleged conflict between a state agency 

and a local government as “not a contest between superior 

and inferior governmental entities, but instead a contest 

between two instrumentalities of the state.”56 The court 

rejected the balancing approach adopted by other state 

courts as “an ad hoc judicial legislation of authority to the 

governmental unit which, in the circumstances, seems to 

have the most compelling case.”57 Rather, the court chose, 

in the absence of “more certain legislative direction,” to 

give effect to the legislative powers conferred on both the 

home rule city and the state by recognizing the municipality’s concurrent regulatory jurisdiction even over the site 

location decisions of a state agency.s8 

The California Supreme Court in 1989 also reframed 

the preemption issue in terms that mark a significant 

change in judicial thinking. The court was faced with an 

asserted preemption of local regulatory authority by a 

state ~tatute.5~The court rejected the assumption that unitary, centralized regulation should prevail over multiple 

regulation. Instead, it viewed the matter as one involving a 

conflict between two equally legitimate assertions of regulatory authority. Accordingly, the court ruled that the appropriate mode of analysis between the provisions of two 

valid statutes, particularly where there is a purported conflict between them, is that both are presumed valid and effective unless the conflict is irreconcilable.60 

A lesson in the nuances of state constitutional interpretation emerged in the states with respect to the controversial subject of regulating relationships between 

landlords and tenants. The Illinois Supreme Court in 1981 

recognized that home rule status rendered obsolete a previous decision denying local regulatory initiative over 

landlord-tenant relationships.61 The California Supreme 

Court in 1984 sustained a home rule rent control ordinance against a preemption claim based on the criterion 

that the legislation intended to “occupy the field,” while 

invalidating those parts of the local administrative scheme 

that conflicted with state law.62 On the other hand, courts 

have found limits to such concurrent jurisdiction, as when 

the Massachusetts Supreme Court ruled in 1984 that a home 

rule city’s condominium conversion ordinance affected “private or civil law relationships”; a power excepted by the state 

constitution from the reach of home r~le.6~ 

The Illinois Supreme Court has provided the strongest claim yet to immunity from preemption in its 1984 decision that a home rule village’s regulation of hand guns 

was not only within the scope of its powers but also that 

54 i .a. Advisory Commission on Intergovernmental Relations 
local regulation was not preempted by state law.64 In dismissing the challenge to the ordinance, Justice Seymour 

Simon, who formerly headed the law department of the 

City of Chicago, observed that: 

Home rule . . . is predicated on the assumption 

that problems in which local governments have a 

legitimate and substantial interest should be 

open to local solution and reasonable experimentation to meet local needs, free from veto by voters and elected representatives of other parts of 

the state who might disagree with the particular 

approach advanced by the representatives of the 

locality involved or fail to appreciate the local 

perception of the problem.6J 

The language of this widely publicized decision shows that 

the Illinois court recognizes, as fully embedded in the 

home rule article of the state constitution, a policy of autonomy of function, however ill-defined it may have been. 

The popular image of this period is encapsulated in the 

phrase “tax revolt.” Indeed, changes in state constitutions 

following the 1978 enactment of California’s Proposition 13 

did affect municipal revenue behavior.66 Constitutional reforms engendered between 1978 and 1992, symbolized by the 

property tax revolt, tended toward the diminution mther 

than the enhancement of local fiscal aut0nomy.6~ 

The 1978 property tax limitations, now found in Ar- ticle XI11 A of the California Constitution, are familiar. 

Less attention has been paid to the Article XI11 B spending limits imposed in 1979. Taken together, Article XI11 A 

and B produced three distinctive changes: 

Substitution of objective indices to govern 

the amount of real property tax, the valuation of real property, and the amount of local 

government spending for both local voter 

choice and official discretion;a 

Expansion of local voter choice and the concomitant diminution of local official discretion over local policy concerning objects of 

taxation other than real property;69 and 

Creation of a protected sphere of local fiscal 

autonomy from state-mandated expenditure 

increases.7o 

Tax Indices 

The first aspect of the California approach, which 

supplants local voter choice, has not been adopted in similar tax and spending limitation provisions of the Arizona, 

Michigan, or Missouri constitution^.^^ The fact that other 

states did not adopt inflexible criteria suggests that this aspect of the California experiment runs against the grain of 

encouraging diverse local fiscal responses to divergent local conditions. 

It is, therefore, not surprising that the California Supreme Court has adopted what would otherwise seem to 

be a paradoxical reading of Article XIII. That court has 

ruled that some provisions of Article XI11 are to be construed strictly, whereas others are to be construed liberally.72 These holdings are consistent if one assumes that the 

court is pursuing a policy of liberal interpretation of Article XI11 exemptionsand narrow interpretation of that article’s scope. These decisions reinforce the lesson that the 

judiciary’s role in implementing state constitutional policy 

innovations must be taken into account at the drafting 

stage-a precautionary step not taken by those who formulated the Jarvis-Gann proposition (Proposition 13).73 

Local Voter Choice 

The kind of exactions that are subject to voter approval vary according to the constitutional language and its interpretation. In California, only local government entities 

vested with the power to impose taxes on real property are 

subject to the constraints imposed by Article XI11 A 

local payroll and receipts tax for general use by local governments was not classed as a special tax requiring approval by a two-thirds majority of those voting.” 

The Missouri Supreme Court held in 1982 that the 

prohibition against “increasing the current levy of an existing tax, license or fee. . . without the approval of the required majority of the qualified voters,” applied not only 

to levies generating general revenue but also to regulatory 

and user charges for service~.~~The Missouri court’s broad 

construction of this constitutional prohibition created neither chaos at the polls nor paralysis of government operations. Voters successfully negotiated long ballots “with as 

many as 100 local fee increases, including leaf pickup and 

ice skate 

Restrictions on Mandates 

During the 1978-1992 period, the number of state 

constitutions containing provisions dealing with state 

mandates jumped from three to ten. Hawaii (1978), Michigan (1978), California (1979)’ Missouri (1980), New Mexico (1980), New Hampshire (1984), and Florida (1990) 

joined Alaska, Louisiana, and Tennessee in this class.78 

The Hawaii provision simply provides that the state 

must share in the cost of any new program or increased 

level of service imposed on political subdivisions.n 

California’s constitution requires that whenever the 

state mandatesa new program or higher level of service, 

U.S. Advisory Commission on Intergovernmental Relations 55 
the state shall reimburse these expenditures unless: (1) 

the locality requests the mandate; (2) the legislature is 

definingacrime; or(3) the mandate was enactedpriorto 

January 1, 1975.*O 

The Missouri Constitution not only requires that the 

state fund “any new activity or service or any increase in 

the level of any activity or service beyond that required by 

existing law” but also that “the state cannot reduce the 

state financial portion of the costs of any existing activity 

or service required of. . . political subdivisions.”s1 

The emerging case law concerning mandate provisions 

has begun to diverge, as illustrated by the following cases: 

In interpreting the California constitutional 

provision requiring the state to reimburse local government units for new programs, the 

California Supreme Court in 1987 held that 

the term “new programs” refers to those carrying out governmental functions or imposing 

unique requirements on local government 

units.82 Accordingly, legislation increasing 

workers’ compensation benefits, which affected both public and private employers, 

need not be funded by the state pursuant to 

Article XI11 B, Section 6 of the California 

Constitution. 

An opposing view was taken by the Missouri 

Supreme Court in 1987, which held that Missouri’s constitutional provision concerning 

restrictions on state mandates to local governments maybe applicable toa statute regulating solid waste landfills even though that 

statute was not aimed solely at local government~?~ 

In addition, Michigan courts in 1988 interpreted the state constitution to apply only to 

state requirements exempting local option 

legislation from its p~Mew.8~ 

b Similarly, in California in 1988, the courts ad- dressed a crucial question over whether the 

statutory program was mandated or merely 

0ptional.8~ 

Not all required increases in costs run afoul of the 

constitutional provision. For example, a Missouri county 

challenged a statute requiring it to contribute additional 

funds to the state retirement system for past service credits of certain county employees newly enrolled in that system. The Missouri Supreme Court in 1987 sustained the 

statute on the ground that the challenged legislative 

scheme, taken as a whole, relieved the county of an existing burden of compensating circuit court clerks, although 

it obligated the county to pay for the past service benefits 

of the transfer.86This case suggests that courts will be slow 

to strike down a statute that mixes fiscal burdens with 

benefits to local governments, provided there is a reasonable quid pro quo. 

In 1988, the California Supreme Court ruled that an 

attempt by the state legislature to shift funding of an existing program from the state treasury to local governments 

subverted the policy underlying Article XI11 B, Section 6, 

and, thus, imposed an impermissible newprogram on local 

school districts?’ 

Home Rule and Tax Capacity 

Several noteworthy cases have dealt with the problem 

of a home rule unit’s capacity to tax. Justice Frank Richardson of the California Supreme Court wrote an influential 

concurring opinion in a 1978 case discussing the scope of taxing power as incidental to per over municipal affairs.= He 

indicated that a home rule unit possesses more power in the 

revenue sphere than in the regulatoIy arena. He further observed that the constitutional grant of home rule powers 

conferred an independent power of taxation mncurrent 

with, but not dependent on, state legislative grants. 

As to preemption, Richardson balanced the state’s interest in uniformity and the minimizing of a local government’s extraterritorial impact against the city’s interest in 

increasing its revenues. In Justice Richardson’s formulation, 

the constitutional home rule policy trumped countervailing 

preemption considerations that would have invalidated the 

tax had it been enacted by a city without home rule. 

In a 1991 case, however, the California Supreme 

Court specifically rejected a balancing approach. Characterizing the home rule provision as “deeply marked from 

the beginning by conceptual uncertainty,” the court sustained a statute expressly preempting home rule taxing 

authority over savings and loan associations.89 

Other cases decided during 1978-1992 have addressed 

this issue as well. The Oregon Supreme Court in 1980 and 

1983 emphasized a similarly expansive construction of the 

revenue-raising authority implied in constitutional grants 

of home rule powers over county affairs and the power to 

enact charters?O In 1989, the Louisiana Supreme Court 

sustained New Orleans’ imposition of a municipal inheritance tax?’ Home rule status, however, does not normally 

confer initiative with respect to borrowingP2 The Pennsylvania Supreme Court (1988) held that the ripper clause in 

its constitution barred the legislature from delegating to a 

state agency or instrumentality the power to compel a local government to levy taxes or to appropriate fundsP3 

Overall, the trend of decisions during the period continued to weaken reliance on the public purpose doctrine to determine the mpe of a home rule municipality’s ability to 

spend and to b0rr0wP4 In that vein, in 1983, the Washington 

Supreme Court sustained a home rule city’s scheme to provide campaign finance funds for candidates in local elections 

against public purpose and preemption challenges.” 

56 U.S. Advisory Commission on Intergovernmental Relations 
ployment relations between police officers and their employers,” the court categorized the matter as one of 

statewide concern because: 

Autonomy as Immunity 

The difficulties that state and local governments have 

invoking the 2nth Amendment to shield them against 

federal statutes governing the terms and conditions of 

public employment are mirrored in the difficulties that local governments have invoking home rule to block similar 

state enactments.g6 

In 1962, Oregon offered home rule units the most 

protection against state legislative incursions. State ex rel. 

Heinig v. City of Milwaukie held that a statute mandating 

that the city council establish a civil service commission for 

fire personnel unconstitutionally intruded into a home 

rule city’s protected realm of municipal affairs?’ In so doing, the Oregon Supreme Court enunciated a test that 

tilted toward local immunity. It held that a general state 

statute predominated over local sovereignty only when 

the state showed that “the subject matter of the enactment is of general concern to the state as a whole.’@* 

The decision was regarded as establishing a high-water 

mark for local autonomy.w In 1988, the Oregon Supreme 

Court reconsidered its stance and limited the earlier case 

to its facts.loO The court, in a pair of opinions authored by 

Hans Linde, also sustained a general statute requiring retirement system membership for city police and fire personnel and mandating life insurance policies for such 

pemnnel.’O1 The court ruled that a proper interpretation of 

the home rule provision of the Oregon Constitution conferred only a drastically narrowed immunity from state laws 

purporting to control a home rule city’s choice of its form of 

government or its governmental processes.lo2 In limiting local immunity to “structural and organizational arrangements,” Linde rejected the notion that courts could ever 

create a workable division of power between competing 

claims to sovereignty over matters of substance.lo3 

The fragility of the distinction between substance and 

procedure becomes apparent in a 1982 California Supreme 

Court ruling involving the application to charter cities of a 

state statute affording procedural protection to police personnel facing disciplinary action.lo4 The court said that: 

There must always be doubt whether a matter 

which is of concern to both municipalities and the 

state is of sufficient statewide concern to justify a 

new legislative intrusion into an area traditionally 

regarded as “strictly a municipal affair.” Such 

doubt, however, must be resolved in favor of the 

legislative authority of the state.los 

Labeling the procedural protection embodied in the 

statute as conducive to “the maintenance of stable emThe consequences of a breakdown in such relations are not confined to a city’s borders. These 

employees provide an essential service. Its absence would create a clear and present threat not 

only to the health, safety and welfare of the citizens 

of the city, but also to the hundreds, if not thousands, of nonresidents who daily visit there. Its effect would also be felt by the many nonresident 

owners of property and businesses located within 

the city’s borders. Our society is no longer one of 

insular local communities. Communities today are 

highly interdependent. The inevitable result is that 

labor unrest and strikes produce consequences 

which extend far beyond local boundaries. lo6 

It is hard to discern from the California court’s language 

how a claim to immunity for local government personnel 

matters can prevail over a legislative determination that the 

matter in question is of statewide concern. 

Two other state decisions denied local claims to immunity over personnel matters. The Montana Supreme 

Court in 1985 held that a statute establishing standardsfor 

fire department personnel did not infringe that state’s 

constitutional shield against interference with local government structure and organization.lo7 Utah’s Supreme 

Court in 1988 ruled that the ripper clause of the state constitution was not violated by a statute compelling municipalities to enter a state-administered retirement system 

for municipal employees.1o8 

The limited protection afforded local government 

units by home rule immunity is well illustrated by the Ohio 

Supreme Court’s difficulties in ruling on a case involving a 

statute mandating home rule cities to enter into binding 

arbitration agreements with public safety workers. The 

court struck down the statute in 1988 and then, on rehearing in 1989, reversed itself and sustained it.lW By contrast, 

the Pennsylvania Supreme Court in 1988 applied the ripper 

clause to preclude labor arbitration orders that compel local 

governments to levy taxes or appropriate funds.lio 

The California Supreme Court in 1979 upheld a 1970 

amendment to the state constitution expressly giving charter cities plenary authority over compensation paid their 

employees, thereby overruling a statute that would have 

capped the cost of living increases to municipal employees.’ll Ohio’s Supreme Court ruled in 1986 that a 

state agency is barred from investigating the operations of 

a city civil service commission on the grounds that the matter was not of statewide concern, and in 1988 that a city is 

privileged to limit its civil service commission’s jurisdiction to city employees only.ll* The latter decision was 

predicated on a finding that the city’s action had no extraterritorial effects. 

U.S. Advisoly Commission on Intergovernmental Relations 57 
Autonomy as Initiative 

Autonomy in the sense of initiative was supported in 

California and Ohio cases (1988) dealing with police officers’ off-duty employment and with filling ~acancies.”~ 

But where there was an alleged conflict between state 

statutes and a local enactment, local government initiative 

was generally preempted. The Florida lower courts found 

in 1989 that the state workers’ compensation law 

preempted a home rule city’s ordinance deducting those 

benefits from the amount of disability benefits payable by 

the city.l14 The Wisconsin Supreme Court in 1989 overturned a home rule city’s attempt to combine its fire and 

police departments on the grounds that it conflicted with 

state legislation separating these function^.^'^ In addition, 

the Ohio Supreme Court (1988) now requires an express 

statement in a home rule city’s charter to enable a home 

rule city to exercise powers of local self-government in a 

manner contrary to state civil service laws.116 

Assertions of home rule initiative on personnel matters are usually sustained against preemption attacks only 

in Illinois, where the state constitution requires a 

three-fifths legislative majority to assert, expressly, the 

state’s sovereign pred~minance.”~ 

State constitutional decisions do not, of course, give 

the whole picture of state-local relations from 1978-1992. 

When considered from the viewpoint of the policies attributable to statutory law, for example, it may well be that the 

decade of the 1980s represented a “decade of devolution.”118 

A recent guide to the reform of state-local relations, for example, focuses two-thirds of its policy checklist for improving 

the state-local system on fiscal matters and stresses statutoty 

rather than constitutional change.”’ 

Even so, the survey of judicial decisions in this chapter 

is of value for several reasons. First, state supreme courts 

maintain an important policymaking role as arbiters of 

state-local relations.120 Second, the patterns of state supreme court opinions exhibit a striking continuity with the 

historical ambivalence toward the policy of local self-government outlined in Chapters 3 and 4. Finally, state supreme court interpretations of constitutional home rule 

policies may be significantly affected by carefully crafted 

provisions in the state constitution. 

These concerns indicate that a policy analysis of 

state-local relations is a necessary prerequisite for providing sound advice to states and local governments on the 

structure and implementation of constitutional language 

dealing with local autonomy. 

Notes 

Albert L. Sturm, ”The Development of American State Con- stitutions,” Publius: The Journal of Fedemlism 12 (Winter 1982): 

57. Proposals succeeded in Alaska, Connecticut, Florida, 

Georgia, Hawaii, Illinois, Louisiana, Michigan, Montana, 

North Carolina, Pennsylvania, South Carolina (article by ar- ticle) and Virginia. Maryland, New York, and Texas rejected 

proposed documents. Albert L. Sturm, 77iirty Ears of State 

Cotistitutioti-M~ing: 1938-1968 (New York National Municipal League, 1970), pp. 138-155. 

2Michael E. Libonati, ”Local Government in State Courts: A 

New Chapter in Constitutional Law,” Intergovernmental Perspective 13 (Summer/Falll987): 15; Perry E. Sentel1,Additional 

Studies in Georgia Local Govemntent Law (Athens: University 

of Georgia Press, 1983), pp. 1-16. 

Town of Black Brook v. State, 41 N.Y. 2d 486,362 N.E. 2d 579 

(1976). 

City of Montrose v. Public Utilities Commission of State of 

Colorado, 732 €! 2d 1181 (Colo. 1987). 

Kennecott Cop v. Salt Lake County, 702 I! 2d 451 (Utah 1985). 

‘Ibid.; La Grant v. Boston Housing Authority, 403 Mass. 328, 

530 N.E. 2d 149 (1988). 

City of Chester v. Commonwealth Department of Transporta- tion, 495 Pa. 382,434 A. 2d 695 (1981). 

Scott County v. Iowa District Court, 397 N.W 2d 754 (Iowa 1986). ’ Helena Elementary School District No. 1 v. State, 769P 2d 684 

(Mont. 1989). 

lo John M. Winters, ”Classification of Municipalities,” Nottliwestem University Law Review 57 (2, 1962): 279. 

For instance, Anderson v. Board of County Commissioners of 

Cloud County, 77 Kan. 721,95 €! 583 (1908). 

l2 For example, Kelly v. State, 724 S.W. 2d 42 (Tex. Crim. 1987); 

Town of Islip v. Cuomo, 64 N.Y. 2d 50,473 N.E. 2d 756 (1984). 

l3 Shelby County Civil Service Merit Board v. Lively, 692 S.W. 2d 

15 (Tenn. 1985). 

14Littleton v. Blanton, 281 Ark. 395,665 S.W. 2d 239 (1984). 

I5 Richardson v. McCutcheon, 278 S.C. 117,292 S.E. 26 787 (1982). 

16State ex rel. Dayton Fraternal Order of Police Lodge No. 44v. 

State Employment Relations Board, 22 Ohio St. 3d 1,488N.E. 

2d 181 (1986). 

l7 City of Brookfield v. Milwaukee Metropolitan Sewerage District, 144 Wis. 2d 896,426 N.W. 2d 591 (1988); Bilyk v. Chicago 

Transit Authority, 125 Ill. 2d 230, 531 N.E. 2d l(1988). 

I* Allegheny County v. Monzo, 509 Pa. 26,500 A. 2d 1096 (1985); 

City of Seattle v. State, 103 Wash. 2d 663,694 l? 2d 641 (1985); 

Branson v. City and County of Denver, 707 l? 2d 338 (1985). 

Bruckshaw v. Paolino, 557 A. 2d 1221 (R.I. 1989); (Rhode Island Constitution, Art. XIII, $4). 

2o Mayor of Boston v. Treasurer and Receiver General, 384Mass. 

718,429 N.E. 2d 691 (1981). 

21 State Water Pollution Control Board v. Salt Lake City, 6 Utah 

2d 247,311 €? 2d 370 (1957). 

**City of West Jordan v. Utah State Retirement Board, 767 I? 2d 

530 (Utah 1988). 

23 Franklin County Prison Board v. Pennsylvania Labor Rela- tions Board, 491 Pa. 50,417 A. 2d 1138 (1980). 

24 For instance, Roberts v. City of Maryville, 750 S.W. 2d 69 (Mo. 

1989). 

25Broward County v. City of Fort Lauderdale, 480 So. 26 631 

(Fla. 1985). 

26Town of Pahrump v. County of Nye, 773 F? 2d 1224 (Nev. 1989). 

27 Parker County v. Weatherford Independent School District, 

775 S.W. 2d 881 vex. App. 1989). 

58 U.S. Advisory Commission on Intergovernmental Relations 
U.S. Advisory Commission on Intergovernmental Relations 59 

Z8North Carolina Constitution, Art. VII, $1. 

29 U.S. Advisory Commission on Intergovernmental Relations 

(ACIR), Stale Constitutions in lhe Federal Syxtern (Washington, 

DC, 1989), p. 11. 

30 Fiscal Court of Jefferson County v. City of Louisville, 559 S.W. 

2d 478 @y. 1977). 

31 Bosselman, Inc. v. State, 230 Nels. 471,432 N.W. 2d 226 (Neb. 

1988); Metals Recycling Co. v. Maccarone, 527 A. 2d 1127m.I. 

1987). 

32BOttone v. Town of Westport, 209 Conn. 652, 553 A. 2d 576 

33 Cogswell v. Sherman County, 238 Kan. 438,710 I! 2d l331(1985). 

34 City of La Grande v. Public Employees Retirement Board, 281 

35 Konrad v. Jefferson Parish Council, 520 So. 2d 393 (La. 1988). 

36 41 Kew Gardens Road Associates v. Tybunki, 70 N.Y. 2d 325,514 

N.E. 2d 1114 (1987); Sant v. Stephens, 753 l? 2d 752 (Colo. 1988). 

37 Landmarks Preservation Council of Illinois v. City of Chicago, 

125 Ill. 2d 164,531 N.E. 2d 9 (1988); State v. Board of County 

Commissioners of County of Sedgwick, 244 Kan. 536,770 F! 2d 

455 (1989); Hildebrand v. City of New Orleans, 549 So. 2d 1218 

(La. 1989); Fox v. City of Lakewood, 39 Ohio St. 3d 19,528 N.E. 

2d 1254 (1988). 

3SCity Council of City of Bethlehem v. Marcincin, 512 Pa. 1,515 

A.2d 1321 (1986). 

39 Francis v. Morial, 455 So. 2d 1168 (La. 1984). 

40 Committee of Seven Thousand v. Superior Court, 45 Cal. 3d 

41 Reilly v. Paulus, 288 Or. 573,607 I? 2d 162 (1980). 

42 City of Eugene v. Roberts, 505 Or. 641,756 l? 2d 630 (1988). 

43 Sho Sat0 and Arvo van Alstyne, State and Local Government 

Law, 2d ed. (Boston: Little, Brown and Company, 1!V7), p. l36. 

44 For example, Anchor Savings and Loan Association v. Equal 

Opportunit Commission, 120 Wis. 2d 391 at 397,355 N.W. 2d 

234 at 238 &is. 1984). 

(1989) 

Or. 137,576 I? 2d 1204 (1978). 

491,754 I? 2d 708 (1988). 

45 Marsland v. First Hawaii Bank, 764 I? 2d 1228 (Haw. 1988). 

46 C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- cal Government Law (Wilmette, Illinois: Callaghan and Company, 1982), Vol. 1, 4.06. 

47 “Report and Recommendations of the California Commission 

on the Law of Preemption,” Urban Law Annual, 1969, p. 131. 

48 National Advertising Co. v. Department of Highways of State 

of Colorado, 751 I! 2d 632 (Colo. 1988). 

49 Western Pennsylvania Restaurant Association v. City of Pitts- burgh, 366 Pa. 374,77 A. 2d 616 (1951). 

50 Montana Constitution, Art. XI, 56 (emphasis supplied). 

51 Illinois Constitution, Art. VII, 36 (i) (emphasis supplied). 

52 Iowa Constitution, Art. 3, $40 (emphasis supplied). 

53 Washington Constitution, Art. XI, 311 (emphasis supplied). 

54Texas Constitution, Art. 11, $5; Millard H. Ruud, ”Legislative 

Jurisdiction of Texas Home Rule Cities,” Term Law Review 37 

(June 1959): 682. 

55 Cook County v. John Sexton Contractors Co., 75 Ill. 2d 494, 

389 N.E. 2d 553 (1979); Cosmopolitan National Bank v. Cook 

County, 103 Ill. 2d 302,469 N.E. 26 183 (1984). 

56 Commonwealth Department of General Services v. Ogontz Area 

Neighbon Association, 505 Pa. 614, at 622,483 A. 2d 448 (1984) 

57 Ibid., p. 626. 

58 Ibid., p. 628. 

59 Western Oil and Gas Association v. Monterey Bay Unified Air 

Pollution Control District, 49 Cal. 3d 408,777 I? 2d 157 (1989). 

6o Ibid. 

61 Compare City of Evanston v. Create, Inc., 85 Ill. 26 101, 421 

N.E. 2d 196(1981)withAmbassador East, Inc. v. CityofChicago, 399 Ill. 359,77 N.E. 2d 803 (1948). 

62Fisher v. City of Berkeley, 37 Cal. 3d 644,693 l? 26 261 (1984). 

63 Bannerman v. City of Fall River, 391 Mass. 461,461 N.E. 2d 

793 (1984); see, Massachusetts Constitution, Art. 11, 37(5). 

64Kalodimo~ v.Village of Morton Grove, 103 Ill. 2d 483, 470 

N.E. 2d 266 (1984). 

65 Ibid., p. 502. 

66 M. David Gelfand, ”Seeking Local Government Financial In- tegrity through Debt Ceilings, Tax Limits, and Expenditure 

Limits: The New York City Fiscal Crisis, the Taxpayer Revolt 

and Beyond,” Minnesota Law Review 63 (4,1979): 545; Robert 

J. Cline and John Shannon, ”Municipal Revenue Behavior af- ter Proposition 13,” Intergovernmental Perspective 8 (Summer 

1982): 22. Proposition 13 was upheld by the US. Supreme 

Court in Nordlinger v. Hahn, 112 S Ct 2326 (1992). 

67Terry Schwadron and Paul Richter, California and the Ameri- can Tax Revolt-Pnposition 13 Five EarsLater(Berke1ey: Uni- versity of California Press, 1984). 

bSCalifornia Constitution, Art. XI11 A, $31-2, Art. XI11 B, $1. 

69 Ibid., Art. XI11 A, $4. 

70 Ibid., Art. XI11 B, 36. 

71 Arizona Constitution, Art. IX, $19,(5), §20(2)(b)(ii), (C); Mich- igan Constitution, Art. IX, II(c), 52s; Missouri Constitution, 

Art. X, $22. 

72 City and County of San Francis00 v. Fmll, 32 Cal. 3d 47,648 I! 

2d 935 (1982); Carman v. Alvord, 31 Cal. 3d 318, 644 l? 2d 192 

(1982) 

l3 Schwadron and Richter, California and the American Tax Re- volt, p. 101-103. 

74 Los Angeles County Transportation Commission v. Rich- mond, 31 Cal. 3d 197,634 F! 2d 941 (1982). 

75 City and County of San Francisco v. Farrell, 32 Cal. 3d 47,648 P 

76 Roberts v. McNary, 636 S.W. 2d 332 (1982). 

77 Daniel R. Mandelker, Dawn Clark Netsch, Peter W. Salsich, 

Jr., and Judith Welch Wegner, State and Local Government 

Law in a Fedeml System, 3d ed. (Charlottesville, Virginia: The 

Michie Company, 1990), p. 361. 

78 See, chapter 4, note 109. 

19 Hawaii Constitution, Art. VIII, $5. 

soCalifornia Constitution, Art. XI11 B, $6. 

Missouri Constitution, Art. X, $21. 

82 County of La Angeles v. State, 43 Cal. 3d 46,729 F! 2d 202 (1987). 

83 Missouri Municipal League v. Brunner, 740 S.W. 2d 957 (Mo. 

1987). 

84 Livingston County v. Department of Management and Bud- get, 430 Mich. 635,425 N.W. 2d 65 (1988). 

85Lucia Mar Unified School District v. Honig, 44 Cal. 3d 380,750 

P. 2d 318 (1988). 

86 Missouri State Employees Retirement System v. Jackson 

County, 738 S.W. 2d 118 (Mo. 1987). 

87 Lucia Mar Unified School District v. Honig, 44 Cal. 3d 380,750 

P. 2d 318 (1988). 

Weener v. City of Oakland, 21 Cal. 3d 386,579 I? 2d 449 (1978). 

89 California Federal Savings and Loan Association v. City of Los 

Angeles, 53 Cal3d 1,812 F!2d 916 (1991). 

2d 935 (1982). 
90 Multnomah Kennel Club v. Department of Revenue, 295 Or. 

279,666 P. 2d 1327 (1983); Jarvill v. City of Eugene, 289 Or. 157, 

613 I? 2d l(1980). 

91 Hildebrand v. City of New Orleans, 549 So. 2d 1218 (La. 1989), 

92 Blevins v. Hiebert, 247 Kan 1,795 P.2d 325 (1990). 

93 Allegheny County v. Allegheny Court Association of Profes- sional Employees, 517 Pa. 505,539 A. 2d 348 (1988). 

94M. David Gelfand, ed., State and Local Government Debt Fi- nance (Wilmette, Illinois: Callaghan and Company, 1985), Vol. 

2, 39.10. 

95 City of Seattle v. State, 100 Wash. 2d 232,668 P. 2d 1266 (1983). 

96See, in particular, the arguments in Garcia v. San Antonio 

97231 Or. 473,373 F! 2d 680 (1962). 

98 Ibid., p. 279. 

99 Sat0 and van Alstyne, State and Local Government Law, pp. 

134-155. 

loo City of La Grande v. Public Employee Retirement Board, 281 

Or. 137,576 P. 2d 1204 (1988). 

Ibid., affirmed on rehearing, 284 Or. 173,586 I! 2d 765 (1988). 

cert. denied. 

Metropolitan Transit Authority, 469 US. 528 (1985). 

lo’ Ibid. 

lo3 Ibid. 

lo4 Baggett v. Gates, 32 Cal. 3d 128, 649 P. 2d 874 (1982). 

lo’ Ibid., p. 881. 

lo6 Ibid., p. 880. 

107Billin~ Fire Fighters Local 521 v. City of Billings, 694 P. 26 

1335 (Mont. 1985). 

lo8 City of West Jordan v. Utah State Retirement Board, 767 I? 2d 

530 (Utah 1988). 

City of Rocky River v. State Emplo ent Relations Board, 39 

Ohio St. 3d 196,530 N.E. 2d 1 (1988ceversed on rehearing 43 

Ohio St. 3d 1,539 N.E. 2d 103 (1989). 

Allegheny County v. Allegheny Court Association of Professional Employees. 

Sonoma County Organization of Public Employees v. County 

of Sonoma, 23 Cal. 3d 296,591 P. 2d 1 (1979). 

State Personnel Board of Review v. City of Bay Village Civil Ser- vice Commission, 28 Ohio St. 3d 214, 503 N.E. 2d 518 (1986); 

Ohio Association of Public School Employees, Chapter 471 v. City of Twinsburg, 30 Ohio St. 3d 180,522 N.E. 2d 532 (1988). 

Long Beach Police Officers Association v. City of Long Beach, 

46 Cal. 3d 736,759 P. 2d 504 (1988); State ex rel. Bardo v. City of 

Lyndhurst, 37 Ohio St. 3d 106,524 N.E. 26 447 (1988). 

‘I4 Barragan v. City of Miami, 545 So. 2d 252 @a. 1989). 

115LOcal Union No. 487, IAFl-CIO v. City of Eau Claire, 147 

Wis. 26 519,433 N.W. 2d 578 (1989). 

l16State ex rel. Bardo v. City of Lyndhurst. 

117 Dineen v. City of Chicago, 125 Ill. 26 248,531 N.E. 2d 347 (1988). 

E. Blaine Liner, ed., A Decade of Devolution: Peapectives on 

State-Local Relations (Washington, DC: Urban Institute Press, 

1989) 

119 Steven D. Gold, Reforming State-Local Relations: A Practical 

Guide (Denver: National Conference of State Legislatures, 1989). 

See, generally, Mary Cornelia Porter and G. Alan Tan; State Su- preme Courts (Westport, Connecticut: Greenwlood Press, 1982) 

60 U.S. Advisory Commission on Intergovernmental Relations 


I 

I 

I I *- 

I1 

.if. 

'! 

.... 

I .. 

Recent ACIR Publications 

RTS 1991: State Revenue Capacity aad Effort. M.187. 1493 ....................................... $20.00 

&.ate Laws Governing Local Government Structurd and Administration. M.186, 1993 ............... $10.00 

XgnKit Features of Fiscal Federalism. 1993 Editlou. Volume II..M.185.n. 1993 ................... $22.50 

' :iijgnficant Features of Fiscal Federalism. 1993 Edition. Volume I. M.185.1993 ...................... $20.00 

I Pded Regulation of State and I;ocal Cov-nk The Mixed Record of the 19808. A.126.1993 ...... $U.W 

The ROIQ of General Government Elected Ot?!icials in Criminal Justice. A.124. 1993 ................. $25.00 Y 

The National Guard Defending the Natiou and the States. A- 393 ............................ 515.w ! Guide to the Criminal Justice System for General Governm $8.00 

1 State Solvency Regulation of Property-Casualty and Ufe Ins es. A.125. 1992 ......... $2tm0 

' F;Ederal Statutory Preemption of State and Local +lu 

ed Orncisrlr. M.184. 1993 ........ 

' ' Intergovernmental Decisionmaking far Eavhnment and Public A.122, 1992 .......... 

Tmrd a Federal Infrastructure Strategy: Issues and @ ..................... $8.00 

Medicaid: Intergoveramental Trends and Options. A.119. lW2., .................................. $10.00 

bud Boundary Commimions: St 

Low1 Government Bounda .la. 1952 ................................................. $8.00 

amctedstics of Federal Cranth-Aid Frognuns tate and Local Governell& 

Grants Ftmded FY 1981. M.182, 1992 ....... ........................................... $10. 00 

................................ $lO.rn 

................................. $10.00 

1 ........ $15.00 

and Roles in Fomtn& Adfwting and Dissalving 

MetPapolitan Organizatian: The Allegheny Comty c;aSe, M.181. 

State Taration of Interstate Mail Order Sales. M.179.1 992. . The Changing Ppblic Sector: Shifts in Covemmeatal Speuding amd l?m@lq'ment. 

Coordinating Water Resources in the Fderal System: The Croumhvater-SMaw 

A.118. 1991 ............................................................................. $15.00 

?M.In. 1391 .... $10.00 

......................... $10.~ 

The Structure of State Aid to Elementary and Secondary Education, M.175. 1990 ................... $10.00 

%presentative Expenditures: Addressing the Neglected Dlmedn of Fkcrrl Capatits M.174. 1990 ....... $20.00 

Mandates: Cases in State-Local Relations. M.ln. 1990 .......................................... $10.00 

Intergovernmental Regulation af Telecommudcations. A.115. 1990 ................................ $lkOO 

Snterjurisdidonrrl Tax and Policy Competitiaa: Good or Bad for the 

State.Loca1 Relations Organfzations: The ACIIR Counterparts. A.117. 

State Constitutional taw: Cases and Materials. M.159S. 1990 ..................................... $30.00 

1988 Fiscal Capacity and Effort. M.170. 1990 ................................................... $20.60 

Rural Economies. SR.13, 1990 ............................................................. $8.00 

L-1 Sda Tax&. SR-12. 1989 ............................................................. 

User Charges, SR-6.1987 ................................................................. 

' heal Revenue Diversification: 

hl Income Taxes. SR.10. 1988 ........................................................... 

Sbte Taxation of Bad Issues and Options. M.lgB.1989 ........................................ $lO.flO 

gtate Regulation of Banks in an Era of Demgulatioa, A.110.1988 .................................. $10.00 

A-113. 1989 .............................................................................. $15.00 

Private Governments in the Intergovernmental System? A.112, 1989 ........................... $10.00 

Questions and Answers for Public Offcisls, M.166, 1989 ....................................... $5.00 

and Architectural Barrier Removal. A.111. 1989 ............................................. $lO.Ocl 

histing the Homeless: State and Local Responses in an Era of Limited Resources. M.161. 1988 ..... $10. 00 

A.108. 1987 .............................................................................. 510.w 

'me Ownization of Local Public Economies. A.109.1987 ........................................ 

$#ate Constitutions in the Fedd System: Selected Issues and Opportunities for State IdtiativeS. 

Residential Community Asachtions 

Uisability Rights Mandates: Federal and State Compliance with Employment Protections I 

I Qevolving Selected Federal-Aid Highway Programs and Revenue Bws: A Critical Appraisal. 1 

$5.00 
ACIR 

The U.S. Advisory Commission on Intergovernmental Relations (ACIR) was 

created by the Congress in 1959 to monitor the operation of the American federal 

system and to recommend improvements. ACIR is an independent, bipartisan 

of 26 members-nine representing the federal government, 14 

local government, and three representing the general public. 

The President appoints 20 members-three private ci 

executive officiaIs directly, and four governors, three state 

and three elected county officials from slates nominated by 

Association, National Conference of State Legislatures, National League of Cities, 

US. Conference of Mayors, and National Association of Counties. The three 

Senators are chosen by the President of the Sen 

the Speaker of the House of Representatives. 

two-year term and may be reappointed. 

As a continuing body, the Commission addresses specific issues and problems the 

resolution of which would produce improved moperation among federal, state, and 

local governments and more effective functioning of the federal 

to examining important functional and policy relationships among the various 

governments, the Commission extensively studies critical governmental finance 

issues. One of the long-range efforts of the Commission has been to seek ways to 

improve federal, state, and local governmental practices and policies to achieve 

equitable allocation of resources, increased efficiency and equity, and better 

coordination and cooperation. 

In selecting items for research, the Cornmission considers the relative 

importance and urgency of the problem, its manageability from the point of view of 

finances and staff available to ACIR, and the extent to which the Commission can 

make a fruitful contribution toward the solution of the problem. 

After selecting intergovernmental issues for investigation, ACIR follows a 

multistep procedure that assures review and comment by representatives of all points 

of view, all affected governments, technical experts, and interested groups. The 

Commission then debates each issue and formulates its policy position. 

the three Represent 

ommission member