scheme, which began its life as a general law, has become, by application, a special law by attrition: through subsequent piecemeal steps, each proper in itself, which reduced the ambit of the law to a very few businesses. Among these steps, they point to the local-option feature and the fact that over half of the population of the Commonwealth has utilized it to escape the law's effects entirely; to the construction we necessarily gave the law in Bonnie BeLo; to the repeated acts of the General Assembly creating additional and broader exemptions culminating in an exemption for nearly any shopping center a local governing body might decide to favor; and finally, to the difficulty of enforcement resulting in prosecutions only on "private complaint." We agree that none of these steps was in itself improper in any respect, but we further agree that their combined effects have reduced the application of a general law to the kind of special legislation prohibited by Article IV, sections 14 and 15 of the Virginia Constitution.

The framers of Section 64 of the Constitution of 1902 (now art. IV, sec. 15, quoted above) were well aware of the danger that a general law might be converted into a special law by subsequent events, and to that end provided specific protections against such changes, whether accomplished by amendment, partial repeal, exemption, or suspension of a general law "for the benefit of any private corporation, association, or individual.” Id. In Martin's Exr's v. Commonwealth, 126 Va. at 612, 102 S.E. at 80, we said: "Though an act be general in form, if it be special in purpose and effect, it violates the spirit of the constitutional prohibition." (Emphasis added). We also observed: "an arbitrary separation of persons, places, or things of the same general class, so that some of them will and others of them will not be affected by the law, is of the essence of special legislation.” Id. at 610, 102 S.E. at 79.

In earlier decisions, we have held unconstitutional laws which were general when first enacted, but were rendered special by subsequent amendment. County Bd. of Sup'rs v. Am. Trailer Co., 193 Va. 72, 68 S.E.2d 115 (1951); Quesinberry v. Hull, 159 Va. 270, 165 S.E. 382 (1932). As demonstrated by the present case, general laws may be rendered special in their application by a combination of several factors, of which legislative amendment may be but one. Because the power of judicial review is the only protection which exists against legislation which has become unconstitutional as applied, our role is not limited to examining the effect of legislative amendments. When the application of a law is fairly challenged under the Constitution, it is our duty to examine its actual effect upon those subject to it, regardless of the origin of the factors which combine to produce that effect. Having thus examined the Sunday-closing laws as applied to the

plaintiffs in this case, we conclude that they are special laws, and are therefore unconstitutional and void.

State ex rel. Barker v. Manchin Page 343, Discussion Notes:

Discussion Notes:

6. In 1984, the voters in Iowa added Article III, Sec. 40 to their constitution:

The general assembly may nullify an adopted administrative rule of a state agency by the passage of a resolution by a majority of all of the members of each house of the general assembly.

Could there be any state or federal constitutional challenge to such a provision?

Following page 359:

Richard Briffault,

"Our Localism: Part I

The Structure of Local Government Law"

Columbia Law Review

90 (January 1990): 1

1990 Columbia Law Review. Reprinted by permission.

INTRODUCTION

Two themes dominate the jurisprudence of American local government law: the descriptive assertion that American localities lack power and the normative call for greater local autonomy. The positive claim of local legal powerlessness dates back to the middle of the nineteenth century and continues to be affirmed by treatises and commentators as a central element of state-local relations. The argument for local self-determination has a comparably historic pedigree and broad contemporary support. The scholarly proponents of greater local powerwhat I will call "localism"-make their case in terms of economic efficiency, education for public life and popular political empowerment-a striking harmonization of the otherwise divergent values of the free market, civic republicanism and critical legal studies.

The law of state-local relations, however, is more complex than the dominant account suggests. The insistence on local legal powerlessness reflects a lack of understanding of the scope of local legal authority.

Most local governments in this country are far from legally powerless. Many enjoy considerable autonomy over matters of local concern. State legislatures, often criticized for excessive interference in local matters, have frequently conferred significant political, economic and regulatory authority on many localities. State courts, usually characterized as hostile to localities and condemned for failing to vindicate local rights against the states, have repeatedly embraced the concept of strong local government and have affirmed local regulatory power and local control of basic services. Localism as a value is deeply embedded in the American legal and political culture.

Much as the extent of local legal power is usually understated, the virtues of enhancing local autonomy tend to be greatly exaggerated. Localism reflects territorial economic and social inequalities and reinforces them with political power. Its benefits accrue primarily to a minority of affluent localities, to the detriment of other communities and to the system of local government as a whole. Moreover, localism is primarily centered on the affirmation of private values. Localist ideology and local political action tend not to build up public life, but rather contribute to the pervasive privatism that is the hallmark of contemporary American politics. Localism may be more of an obstacle to achieving social justice and the development of public life than a prescription for their attainment.

The flaws in the dominant positive and normative critiques of American local government law are interconnected and proceed from a common methodology. Local governments and their powers are considered in relatively abstract, ideal terms. Legal analysis tends to focus on the formal legal category of local government. As a result, the enormous variety of local governments-their differences in size, wealth and function; the degree to which economic considerations enable them to benefit fully from the legal powers they enjoy; the intense political and economic conflicts among them-is often missed. So, too, the issue of local power is usually conceived of as the abstract question of who wins-state or locality— in a head-to-head conflict. Such an approach commonly fails to consider how infrequently such conflicts actually occur, where the balance of power lies in the absence of conflict and the importance of interlocal, as distinguished from state-local, conflicts. The values of local autonomy are ascribed to a thinly described set of idealized local units, while the policies and programs of actual local governments and the impacts localities have on each other are seldom examined. Localism in practice is significantly different from localism in theory.

This Article presents a study of "Our Localism"-of the legal powers of contemporary American local governments, the practical social and political ramifications of local legal power in a system characterized by wide divergences in local fiscal capabili-ties and needs and the ideological commitment to localism that sustains and legitimates local autonomy.

Despite the standard contention that a crabbed judicial interpretation of the "municipal affairs” language in home rule provisions has limited local power to initiate measures, the most comprehensive study of the first decades of home rule found that the courts generally permitted "a fairly wide latitude of action on the part of the city in its so-called capacity as an organization for the satisfaction of local needs," and that under home rule the courts "extended the concept of the city's local capacity far beyond its limits" under Dillon's Rule.47 A more recent analysis agrees, finding that “[j]Judicially imposed limitations on the initiative power... in the absence of conflicting state legislation have been relatively infrequent and of minor importance in undermining local autonomy.' Indeed, the postwar era has witnessed a steady broadening of the discretionary authority of local governments.49 Today, most home rule governments possess broad regulatory and spending powers.

9948

1 The reference to "Our Federalism" is intended. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971). Federalism and localism are both a part of the American constitutional order. "Our Localism," like "Our Federalism," emphasizes that local autonomy is not simply a question of the structure of intergovernmental relations but also includes the ideology that structure has generated, an ideology which continues to provide support for the devolution of power to local governments.

47 H. McBain, supra note 16, at 671; see H. McBain, supra note 46, at 30 123 (noting willingness of state courts to sustain municipal power to own and operate public utilities, and to sanction wide discretion to regulate height and bulk of buildings under police power before states authorized zoning).

48

Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643, 652 (1964).

49 J.Zimmerman, State-Local Relations: A Partnership Approach 160 (1983); see, e.g., State ex rel. Swart v. Molitor, 621 p. 2d 1100, 1102 (Mont. 1981) (Montana's 1972 constitution, by allowing localities to adopt self government charters, "opened to local governmental units new vistas of shared sovereignty with the state"). For an important case in a state whose constitution does not provide for home rule, see Inganamort v. Borough of Fort Lee, 62 N.J. 521, 536 38, 303 A.2d 298, 306 07 (1973) (sustaining municipal rent control as matter of local power even though state had repealed statute authorizing municipal rent control).

Richard Briffault, "Our Localism: Part IILocalism and Legal Theory"

Columbia Law Review
90 (1990): 346.

"City" usually implies "big city" or "central city" or "inner city"—a large center of population and production, commerce, communications and culture, distinguished not simply from the "state" and the countryside, but also from small towns and suburbs. "City," according to Bernard Frieden, "suggests bustling streets with a mixture of factories, offices, apartments and homes crowded together amidst heavy traffic, noise, dirt and excitement."" Lewis Mumford defined the city "as a complex of inter-related and constantly interacting functions" that large size and density make possible.12 For Jane Jacobs, similarly, the hallmark of "great American cities" is diversityof people, functions, land uses and activities.13

As a social and a political concept, the city is a heterogeneous place, combining residence, work, recreation and cultural life, and mixing people of different racial and ethnic groups, socioeconomic classes and levels of educational and occupational attainment. "City," in short, signifies a complex microcosm of the state or nation and a socially, economically and culturally dynamic part of the larger polity. Such a "city" seems a fitting place for legal and political autonomy, which is no doubt why many advocates of local autonomy make their case in terms of cities." But once the term "city" is used in the sense of municipal corporation, used, that is, "as a legal concept," in Frug's phrase-then many "cities" are neither large nor complex nor heterogeneous. Most cities are small. Half of all municipal corporations have populations of 1,000 or fewer, and three-quarters of all municipalities have 5,000 people or fewer. Nearly one half of urban Americans live in municipalities of fewer than 50,000 people. Many "cities" are

14

11 B. Frieden, Metropolitan America: Challenge to Federalism 17 (1966).

12 L. Mumford, The City in History: Its Origins, Its Transformations, and Its Prospects 85 (1961).

13 J.Jacobs, The Death and Life of Great American Cities 141 51 (1961).

14 See, e.g., Frug, City as Legal Concept, supra note 6, at 1119, 1120 nn.267 70. Frug's citations to Arthur Schlesinger's The Rise of the City 1878-1898 (1933) and the work of the Chicago School of urban sociology indicate his association of "city" with "big city."

primarily residential, composed of homes and politically responsive to homeowner interests; others are primarily industrial or commercial, functioning as centers of employment but with relatively few residents. Many municipal corporations are not demographic microcosms of the state but are instead composed predominantly of people of one race or class.

of

Simply put, in most metropolitan areas many the entities the law defines as cities are-in social science parlance and lay understanding-suburbs. More Americans reside in suburbs than in either central cities or rural areas, and sixty percent of the residents of metropolitan areas live in suburbs. In virtually every large metropolitan area, the suburbs outnumber the central city in both population and employment. The suburb, not the city, is the principal form of urban settlement in the United States today.

Cities and suburbs differ from each other politically, economically and socially. Notwithstanding these differences, local government law does not distinguish within the category of municipal corporation between city and suburb, and legal theory generally has not taken the differences between cities and suburbs into account. Law and legal theory both treat most suburbs as cities, and this critically affects any attempt to measure the scope of local power.

Incorporated suburbs usually have the same legal status as central cities. Even those suburbs not accorded the full panoply of big city powers generally enjoy the fundamental elements of local autonomy: the authority to tax property, spend on local services and regulate land use, and the right to come into governmental existence and protect local autonomy from nonconsensual absorption into another locality. Indeed, local legal powers may be more adequately matched to local economic and social needs in the suburbs than in the cities.

The logic of local legal autonomy assumes local solutions to local problems, with local programs funded by taxes on local property. Many big cities, however, have relatively large social welfare and infrastructure demands. Local political existence, zoning autonomy and taxable property provide neither the regulatory authority nor the revenues necessary to meet these problems. To cope successfully with local needs, these cities must look beyond the city limits to outside public and private actions: intergovernmental aid, additional revenue-raising authority from the state and private investment.

Many big cities are heavily dependent on intergovernmental aid to balance their budgets, pay their employees and satisfy local demands for basic public services. In terms of local political independence, it is an open question whether big cities are better off with intergovernmental aid, which often comes with

strings attached, or without it. But there should be no question that the fiscal dependency of many big cities means that local legal authority alone is not sufficient to create real local autonomy.29

By contrast, for affluent or middle-class suburbs, local legal powers are more likely to be sufficient for the satisfaction of local wants. Less burdened by poverty, crime, congestion and physical deterioration than big cities, these localities tend to have lower per capita spending needs, while their tax bases are, per taxpayers, more substantial. In addition, local autonomy insulates suburban tax bases from the fiscal needs of city residents. To the extent that local resources are inadequate and further growth is required, suburbs find it easier than cities to compete for that growth.

Moreover, for many suburbs, particularly the more affluent ones, the principal local regulatory goals often are controlling growth and preserving the status quo. Local legal autonomy significantly empowers them in this quest. These suburbs can retain local revenues and use them to maintain local schools, utilize their land-use authority to prevent unwanted local development and resist merger or absorption into poorer central cities or regional governments. As a rule, local legal powers will be more effective in attaining the suburban goals of limiting growth and preserving formal autonomy than in attaining the central cities's goals of intergovernmental assistance and private investment.

Cities, as just defined, tend to fare relatively poorly under this system, not because of a lack of legal autonomy, as the argument about city legal powerlessness suggests, but because the scarcity of local resources relative to local needs forces them to turn to external sources for financial support. More generally, the localist values in the system militate against the interests of cities. Legal localism presumes local fiscal self-sufficiency; it provides neither a legal basis for compelling state responsibility to help satisfy local needs when local resources prove inadequate nor a political basis for persuading state legislatures to assume a greater degree of responsibility for local fiscal inadequacy. Furthermore, localism legitimates state inaction, making it more difficult for needy localities to obtain financial support from the state or from more prosperous localities.

Suburbs, by contrast, often do better under this system. The core of local legal autonomy is defensive and preservative, enabling residents of more affluent

29 Robert Dahl has observed, "the greatest inroads on the autonomy of the city result from its lack of financial resources." R. Dahl, supra note 10, at 164.

localities to devote local taxable resources to local ends, exclude unwanted land uses and users and protect the autonomous local political structure that allows them to pursue local policies.48 These are precisely the goals of more affluent localities. Local autonomy enables these suburbs to protect their resources from the fiscal needs of nearby cities while securing their independence from involvement in the resolution of urban or metropolitan economic or social problems. Suburbs benefit from the localist values of courts and legislatures that discourage modifications of this highly satisfactory status quo and protect them from outside interference.

Moreover, although most discussions of local authority are limited to the legal relationship between states and local governments, this traditional focus on state-local bipolar conflict is too simplistic a model for analyzing local government law. Local government law must deal not just with disputes between states and localities, but also with conflicts among localities.49 Strengthening local autonomy from the states does not benefit all localities, but instead benefits those with the greatest local resources or the fewest public service needs, to the detriment of poorer places. Local power thus can lead to city powerlessness.

Greater local autonomy would not substantially advance participation. There already is a great deal of local legal power, and the principal constraint on local power is often not legal but economic: the limits of local resources and the structure of interlocal competition. So, too, mobility and the spread of daily activities across a metropolitan area are far greater impediments to a revitalized sense of local community than any nominal limits on local legal power. As long as the social trends that have eroded the connection between locality and community ties continue unabated, it is difficult to believe that augmenting local governments' already substantial legal powers will have any significant effect on either the sense of com

48 Swanstrom notes,

Having a tax base more than ample to meet the service demands of a largely middle class population, many suburban governments practice the politics of exclusion, not the politics of growth. They are more concerned with excluding the poor and minorities, as well as dirty industry, than with attracting new investment and residents. Ironically, it is precisely in those cities where growth is least possible that growth politics. . .has its most tenacious hold. T. Swanstrom, supra note 32, at 26. 49 As Elazar points out, most smaller localities, "really do not develop a 'city' outlook in the political arena. As a rule, they align themselves with the so-called 'rural' areas (really a misnomer in the demographic sense today) against the 'big city' in urban rural conflict situations." D. Elazar, supra note 20, at 152 53.

munity or the extent of political participation at the local level. At the same time, the cost of local legal autonomy, the burden it places on poorer localities and the crippling effect it has on efforts to remedy local economic and social problems, are far greater than participationists acknowledge.

Page 412, after Discussion Notes:

Edgewood Independent School District v. Kirby

777 S.W. 2d 391 (Tex. 1989)

MAUZY, Justice.

At issue is the constitutionality of the Texas system for financing the education of public school children. Edgewood Independent School District, sixty-seven other school districts, and numerous individual school children and parents filed suit seeking a declaration that the Texas school financing system violates the Texas Constitution. The trial court rendered judgment to that effect and declared that the system violates the Texas Constitution, article I, section 3, article I, section 19, and article VII, section 1. By a 2-1 vote, the court of appeals reversed that judgment and declared the system constitutional. 761 S.W.2d 859 (1988). We reverse the judgment of the court of appeals and, with modification, affirm that of the trial court.

The basic facts of this cause are not in dispute.1 The only question is whether those facts describe a public school financing system that meets the requirements of the Constitution. As summarized and excerpted, the facts are as follows.

There are approximately three million public school children in Texas. The legislature finances the education of these children through a combination of revenues supplied by the state itself and revenues supplied by local school districts which are governmental subdivisions of the state. Of total education costs, the state provides about forty-two percent, school districts provide about fifty percent, and the remainder comes from various other sources including federal funds. School districts derive revenues from local ad valorem property taxes, and the state raises funds from a variety of sources including the sales tax and various severance and excise taxes.

There are glaring disparities in the abilities of the various school districts to raise revenues from property taxes because taxable property wealth varies greatly from district to district. The wealthiest district has

1 By agreement of the parties, the 1985-86 school year was used as the test year for purposes of constitutional review.

over $14,000,000 of property wealth per student, while the poorest has approximately $20,000; this disparity reflects a 700 to 1 ratio. The 300,000 students in the lowest-wealth schools have less than 3% of the state's property wealth to support their education while the 300,000 students in the highest-wealth schools have over 25% of the state's property wealth; thus the 300,000 students in the wealthiest districts have more than eight times the property value to support their education as the 300,000 students in the poorest districts. The average property wealth in the 100 wealthiest districts is more than twenty times greater than the average property wealth in the 100 poorest districts. Edgewood I.S.D. has $38,854 in property wealth per student; Alamo Heights I.S.D., in the same county, has $570,109 in property wealth per student.

The state had tried for many years to lessen the disparities through various efforts to supplement the poorer districts. Through the Foundation School Program, the state currently attempts to ensure that each district has sufficient funds to provide its students with at least a basic education. See Tex.Educ.Code Sec. 16.002. Under this program, state aid is distributed to the various districts according to a complex formula such that property-poor districts receive more state aid than do property-rich districts. However, the Foundation School Program does not cover even the cost of meeting the state-mandated minimum requirements. Most importantly, there are no Foundation School Program allotments for school facilities or for debt service. The basic allotment and the transportation allotment understate actual costs, and the career ladder salary supplement for teachers is underfunded. For these reasons and more, almost all school districts spend additional local funds. Low-wealth districts use a significantly greater proportion of their local funds to pay the debt service on construction bonds while high-wealth districts are able to use their funds to pay for a wide array of enrichment programs.

Because of the disparities in district property wealth, spending per student varies widely, ranging from $2,112 to $19,333. Under the existing system, an average of $2,000 more per year is spent on each of the 150,000 students in the wealthiest districts than is spent on the 150,000 students in the poorest districts.

The lower expenditures in the property-poor districts are not the result of lack of tax effort. Generally, the property-rich districts can tax low and spend high while the property-poor districts must tax high merely to spend low. In 1985-86, local tax rates ranged from $.09 to $1.55 per $100 valuation. The 100 poorest districts had an average tax rate of 74.5 cents and spent an average of $2,978 per student. The 100 wealthiest districts had an average tax rate of 47 cents and spent an average of $7,233 per student. In Dallas