It should also be noted that the present constitutional provision does not authorize the consolidation of county government with that of other local authorities, while it contains a number of detailed requirements which limit what can be done.

Local Control of Street Railways: Section 4 of Article XI of the Constitution of 1870 provides that:

"No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town or incorporated village, without requiring the consent of the local authorities having the control of the street or highway to be occupied by such street railroad."

1922

As construed by the Supreme Court in the earlier cases arising under this section, it appeared to vest in the local authorities a large measure of control over street railroads. In Byrne v. Chicago General Railway Co., it was decided:

"That the use of the streets in the cities of this state by street car companies is subject to the consent of the common council, and that in granting such consent, the common council may impose such conditions as, in its opinion, the public benefit may require. Under the constitution not even the legislature has the power to grant the right to construct and operate a street railroad within a city without the consent of its common council."

But this was somewhat qualified by the further statement that: "They [the municipal authorities] may impose any conditions not illegal and not forbidden by the statute."23

In the later case of Venner v. Chicago, which upheld the street railway ordinances of 1907, providing for the combination and joint operation of street railway lines in Chicago, it was stated that:

"The constitution commits to the city the control of the operation of street railways in its streets. It is for the city to determine whether such operation shall be competitive or monopolistic; to grant the privilege to many or confine it to one."24

This statement was quoted and re-affirmed in the case of the People v. Chicago, upholding the unification ordinance of 1913.25

In the meantime, however, the opinion had been expressed that this section of the constitution did not give to cities the exclusive control of their streets.

22 This section appears to have been the outcome of opposition to the so-called ninety-nine year act, passed in 1865, over the veto of Governor Oglesby, extending the rights of street railways in Chicago. Early in the convention of 1870 two resolutions were introduced, one by Mr. Eldridge and one by Mr. Anthony, each including substantially this provision. One of these also provided for the consent of property owners, and the other provided that street railroads should pay their share of special assessments for street improvements. The Committee on Miscellaneous Corporations reported the provision for the consent of local authorities, and this was approved by the convention without debate. The Committee on Revision and Adjustment added the word "requiring". so that the consent could be given after the passage of the law, and in this form the section was adopted. Debates and Proceedings, I, 151, 154:II. 1664, 1667, 1837.

23 Byrne v. Chicago General Railway Co., 169 Ill. 75, 83.

24 Venner v. Chicago, 258 II. 523, 546 (1913)

25 People v. Chicago, 270 Ill. 188, 202 (1915)

"While a municipal corporation is vested with the control of the streets within its corporate limits, such control is not exclusive, but is subject to the superior control which may be exercised by the State at any time.”26

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Later, in the case of the Public Utilities Commission v. The C. & W. T. Ry., upholding the Public Utilities Act of 1913, it was held that Section 4 of Article XI, "is simply a limitation of the general powers of the legislature, and in one particular only * that section of the constitution does not, by implication or otherwise, attempt to divest the State of its paramount authority and control of streets and highways."27

In the more recent case of Chicago v. O'Connell, it has been more positively set forth that section 4 of Article XI does not restrict the police power of the State, which may be exercised even against the provisions of agreements made by a city and a street railway in granting its consent.

"The statement

that the constitution commits to the city the control of the operation of street railways in its streets merely means that the constitution has conferred, upon the city, power to determine whether street railways shall be operated upon the streets of the city, and if so upon what streets. To this extent, and no further, the constitution has committed to the city the control of the operation of street railways in its streets.

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"The regulation of public utilities is one phase of the exercise of the police power of the State. * The settlement ordinance and the unification ordinance constitute binding contracts between the city and the railway companies * so far as the contracts relate to matters which do not affect the public safety, welfare, comfort or convenience.

* *

"But a municipality can not contract away the right to exercise the police power to secure and protect the morals, safety, health, order, comfort or welfare of the public, nor limit or restrain by any agreement the full exercise of that power.'

1128

General Situation: Under the present situation, local communities in Illinois are substantially protected from arbitrary interference by special legislation, while through optional laws there is some field of choice with reference to the forms of local organization. But complaints are made that it is difficult and sometimes impossible to secure adequate authority to deal with local problems; and it is urged that there should be a larger field of municipal freedom and positive authority both with reference to the forms of organization and the functions of local government. This demand for a greater degree of municipal home rule aims at constitutional provisions similar to those now in force in thirteen other states.

29 Chicago & S. T. Co. v. I. C. R. R.. 246 III. 146, 155 (1910).

27 Pub. Ut. Co. v. C. & W. I. Ry. 275 Ill. 555, 570 (1916).

28 Chicago v. O'Connell, 278 I. 591, 601-607 (1917) recently affirmed by the United States Supreme Court. See Chicago v. Chicago U. T. Co.. 199 III. 259 (1902); Chicago v. Chicago City Ry. Co., 272 I.. 245 (1916).

Municipal powers are also handicapped by the constitutional restrictions on taxation and debt, which will be considered more fully in another pamphlet. The requirement of uniformity in taxation has prevented changes in the system of taxation. The debt limit is lower than in other large states; and its operation has been changed from time to time by the creation of overlapping taxing districts, and by changes in the basis for the assessment of property, from a fifth, to a third, and (in 1919) to one-half of the so-called full value.

III. STATUS OF MUNICIPALITIES IN OTHER STATES.

State and Legislative Supremacy: The prevailing rule in American states as to the basic legal relation between the state and municipalities is the same as in Illinois. Municipal corporations are created by the state, and derive all their powers from the state; and are subject to the control of the state legislature, except as limited by the state constitution. This rule is not only laid down by the supreme courts of the States; but has also been recognized by the Supreme Court of the United States.

"Municipal corporations are mere instrumentalities of the state for the more convenient administration of the state government. Their powers are such as the legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure. There is no contract between the state and the public that the charter of a city shall not be at all times subject to legislative control.”1

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In a few states, however, the courts have declared a doctrine of an inherent right of local self-government, based on the general principles and spirit of American government. This was set forth by Judge Cooley in Michigan in 1871; and has been followed in a few cases in that and some other states. But the application of this rule has been narrowly limited even in the states where it has been announced; and the general principle both of law and practice is that the only limitations on legislative action are to be found in constitutional provisions.2

Constitutional Limitations: Under the earlier state constitutions, with few restrictions of any sort on the legislature, and none specifically protecting municipal corporations, the power of the legislature over such local governments was practically unlimited. In later constitutions and amendments in other states, as in Illinois, not only have provisions been adopted on other subjects which indirectly affect municipal corporations, but also definite provisions relating to municipal government. Some of these have aimed at restricting legislative control over local administration by providing for the local selection of officers and by the prohibition of special legislation. At the same time, the same or other provisions have

1 Justice Field, in Meriwether v. Garrett, 102 U. S. 472 (1880); See U. S. v. R. R. Co, 17 Wall. 322 (1872); Conns v. Lucas, 93 U. S. 108 (1876). But lawful contracts of such a corporation may be enforced by the U. S. courts against its private property not held for public purposes.

2 People v. Hurlbut, 24 Mich. 44 (1871).

authorized or imposed restrictions on municipalities, especially with reference to debt and taxation.

A few of the first state constitutions provided for the local election of some county officers; and later constitutions have provided for an increasing list of elective county officers. Except in the North Atlantic group of states, most state constitutions now have some restrictions on the formation of new counties.

One of the earliest provisions relating to cities was an amendment to the Massachusetts Constitution, adopted in 1821, authorizing the legislature to constitute municipal or city governments, but limiting this to towns of 12,000 inhabitants, and requiring the consent of a majority of those voting at a town meeting.

In New York state, city mayors had in early times been appointed by the state; but constitutional amendments in 1833 and 1839 provided for their local election. In the New York convention and constitution of 1846 some attention was given to questions of municipal government. The prohibition of special legislation was proposed; but in the revised constitution, while this prohibition was applied to corporations in general, an exception was made in the case of those for municipal purposes. The following provisions. were adopted relating to incorporation, taxation and debt:

"Article VIII, Sec. 9. It shall be the duty of the legislature to provide for the incorporation of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing. money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations".

Section 2 of Article X provided for the local election or appointment of county, city, town and village officers.3

These same provisions were adopted in the first Wisconsin Constitution of 1848; and provisions similar to the first of these have since been adopted in a number of other states. The revised constitutions of Virginia and Kentucky, adopted in 1850, each contained provisions for the local election or appointment of municipal officers.1

Restrictions on Special Legislation: Constitutional provisions prohibiting special legislation for corporations, "except for municipal purposes", were adopted by Louisiana in 1845, New York in 1846 and California in 1849. The California Constitution further provided that "The Legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable · throughout the state."5

2 3 Lincoln, Constitutional History of New York II, 6, 198-203, 208.

• Wisconsin Constitution of 1848. Art. XI. Sec. 3; Art. XIII, Sec. 9. Virginia Constitution of 1850, Sec. 34. Kentucky Constitution of 1850, Art. VI, Sec. 6. 5 New York Constitution of 1846, Art. VIII, Sec. 1. California Constitution of 1849, Art. XI, Sec. 4.