Under the adjudicated cases, therefore, one point appears to be settled, namely, that the regulation of local public utilities is a matter "other than the property, affairs or government of cities." Under the proposed home-rule grant cities will have no power in respect to this matter, which, at least so far as New York City is concerned, is the burning home-rule question of the hour. Whatever may be thought of the reasonableness of this interpretation of the phrase in question, it at least settles in advance a controversial point that has given considerable difficulty in other home-rule states. The decisions of the New York courts, however, furnish no further light on the meaning of the phrase, "property, affairs or government."

By this home-rule proposal cities, as we have seen, will be empowered to "adopt and amend local laws" relating to many matters concerning "all officers. . . of the city." Who are "officers" of the city? The phrase "city officers" has been in the constitution of New York since 1846 in a clause which declares among other things that all "city officers" shall be locally elected or locally appointed. The complicated section of the constitution (sometimes called the "home-rule clause ") in which this right is guaranteed to cities has received a good deal of judicial construction. In construing the term "city officers" it would have been quite possible for the courts to introduce the distinction between those officers who perform functions of local or city concern and those who, though commonly subject to local selection, may nevertheless be regarded as state officers because of the nature of their functions. In fact, however, this distinction has found little or no place in the recorded decisions interpreting this section. By applying other provisions of the section the courts did indeed permit the legislature to narrow the grant of the right of local selection of city officers.2 But they gave no restricted meaning to the

1 Constitution of New York, 1846, Art. X, sec. 2; Constitution of 1894, Art. X, sec. 2.

2 For a discussion of the ways in which the legislature was permitted to invade this right see McBain, The Law and the Practice of Municipal Home Rule, pp. 35-42, and the cases there discussed.

term "city officers". By expression or by implication that term has been broadly construed to include such officers as police, health, excise,3 tax and election 5 officers. From the functional viewpoint any one of these officers might, not without some reason, have been held to be a state, not a city, officer. If this amendment is adopted, it will remain to be seen whether the New York courts will interpret the term "officers

of the city" with the same degree of liberality that they have applied to the term "city officers" as used in the section which conferred upon cities merely the right of local election or appointment. In its new connection the term has far larger implications, especially in view of the fact that the city will be empowered to control such large matters as the "powers" and duties" of its officers.

The phrase "private or local bill" was likewise introduced. into the constitution of 1846 and is used in the constitution of 1894 in the section that prohibits more than one subject in such a bill and in that which prohibits any "private or local bill" in respect to an enumerated list of legislative subjects." In the course of time these sections have been construed in a large number of cases. It is highly improbable, however, that these cases will throw much if any light upon the term "local laws" as used in this home-rule provision. It seems fairly certain that they will not materially determine the content of the home-rule grant; for after all, the scope of that grant lies not in the term "local laws" but in the enumerated subjects in respect to which local laws may be adopted.

'People ex rel. Wood v. Draper, 15 N. Y. 532 (1857); People ex rel. McMullen v. Shepard, 36 N. Y. 286 (1867); People ex rel. Bolton v. Albertson, 55 N. Y. 50 (1873).

'Metropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); but see In the Matter of Whiting, 2 Barb. (N. Y.) 513 (1848), in which a lower court held that the health officer of the port of New York was not a city officer.

'Metropolitan Board of Excise v. Barrie, 34 N. Y. 657 (1866), where, however, the constitutional guarantee of local selection of local officers was apparently not invoked. But see People ex rel. Haughton, 104 N. Y. 570 (1887), where the statutory phrase "all appointments to office in the city of New York" was construed to include commissioners of excise.

People v. Raymond, 37 N. Y. 428 (1868).

Matter of Morgan v. Furey, 186 N. Y. 202 (1906).

Constitution of 1894, Art. III, secs. 16 and 18.

VII

It is somewhat difficult to consider, in the light of the peculiar phrasing of the New York proposal, the principal subjects of controversy that have arisen in the home-rule states. Nevertheless the attempt to do this briefly is probably worth the effort.

One or two matters that have given difficulty in the homerule states are definitely disposed of by this proposal. Thus the whole subject of education is specifically excepted from the grant of home rule; it is apparently left under the exclusive jurisdiction of the legislature. Again the matter of the "presentation, ascertainment, and discharge of claims" against the city—a matter that has given rise to considerable litigation in the home-rule states-is disposed of by express inclusion within the home-rule grant."

As we have seen, moreover, one important subject-the right to regulate and control privately owned local utilities-has doubtless been settled by the judicial determination that a law dealing with such a matter does not relate to the "property, affairs or government of cities."3 Even in the absence of such adjudication in advance, it is open to question whether any of the phrases of the proposed home-rule grant could be construed to confer such power upon cities, unless it could be regarded as implied in the power to control such uncertainties as the "transaction of its business" or the " government . . . of its inhabitants."

The constitutions of four of the home-rule states expressly confer upon cities the power to own and operate public utilities. Except in California, however, these constitutional grants are accompanied by such stringent limitations in the matter of finance as to make them in most instances practically unavailable.5

1 Sec. 7.

2 Sec. 3.

3 See above, p. 670 ff.

Constitution of California, Art. XI, sec. 19, as amended in 1911.

5 Constitution of Colorado, Art. XX, sec. 1, and of Oklahoma, Art. X, sec. 27, in both of which states a vote of the taxpaying voters is necessary. Constitu

In California, even before the adoption in 1911 of a constitutional amendment conferring this power, it had been held that the general grant to the city of power to "frame and adopt a charter for its own government" included the power to provide in the home-rule charter for the ownership and operation of public utilities. In Washington it was early implied that the city had the power to own and operate utilities only in so far as the legislature had expressly conferred such power in supplement of the home-rule grant. In Texas extensive power to own and operate public utilities was conferred by the enabling act under which the legislature gave effect to the constitutional grant of home-rule. In the other home-rule states controversies over municipal ownership have not arisen, apparently because cities have not attempted to extend their competence into this field. Under the New York proposal it is highly doubtful whether cities will be able effectually to claim any power to own and operate utilities. There is no specific reference to the subject. And even if municipal ownership could be gathered under the power to "adopt and arend local laws. . . relating to the powers of all officers. . . of the city" or to the "government . . . of its inhabitants", the constitutional debt limit would in most cities stand as an insuperable obstacle to any considerable adventure in this direction.

Matters pertaining to municipal elections have been held to be matters of state concern in Missouris and Colorado.

But

tion of Michigan, Art. VIII, secs. 23 and 24, and of Ohio, Art. XVII, secs. 4, 5, and 6, in both of which states bonds beyond the debt limit may be secured only upon the property and revenues of the public utility in question.

1 Platt v. San Francisco, 158 Cal. 74 (1910). See also Matter of Russell, 163 Cal. 668 (1912).

'Seymour v. Tacoma, 6 Wash., 138 (1893).

3 General Laws of Texas, 1913, ch. 147.

Art. 8, sec. 10.

Ewing v. Hoblitzelle, 85 Mo. 64 (1884); State ex rel. Faxon v. Owsley, 122 Mo. 68 (1894); State ex rel. McCurdy v. Slover, 126 Mo. 652 (1894). In practice municipal elections in St. Louis and Kansas City are regulated almost wholly by state law.

Williams v. People, 38 Col. 497 (1906); Mauff v. People, 52 Col. 562 (1912). But power over municipal elections was conferred upon home-rule cities by specific constitutional amendment in 1912; Art. 20, sec. 6.

the contrary rule has been applied in California,' Oklahoma,* Oregon 3 and Ohio.* In Washington the power of cities to regulate their own elections is derived from the legislature, not from the constitution, and to the extent that controversy has arisen this power over elections has been narrowly construed. The New York proposal will empower cities to enact local laws relating to the "mode of selection . . . of all officers of the city." Whether this includes the power to regulate all or any matters pertaining to the election of city officers is uncertain. Moreover since the time of the election of city officers is specifically fixed by the constitution, and since state Assemblymen, if no other state officers, are always elected at the same time, there would in any event be some difficulty in operating at one and the same election two differing sets of election requirements-one for local officers and the other for state officers.

8

Matters relating to local taxation have been held in Missouri 7 and Washington to be matters in respect to which home-rule charter provisions must give way before state laws. But in California a home-rule charter may provide for the levy of taxes

1 Socialist Party v. Uhl, 155 Cal. 776 (1909).

Lackey v. State ex rel. Grant, 29 Okla. 255 (1911); but because of another provision of the constitution cities could not control matters pertaining to the nomination of candidates for municipal offices; Mitchell v. Carter, 31 Okla. 592 (1912).

3 State ex rel. Duniway v. City of Portland, 133 Pac. 62 (1913).

4

♦ Fitzgerald v. City of Cleveland, 88 Oh. St. 338 (1913), which case, however, was not wholly conclusive on this point.

State ex rel. Fawcett v. Superior Court, 14 Wash. 604 (1896); State ex rel. Navin v. Weir, 26 Wash. 501 (1901). But see Hiltzinger v. Gillman, 56 Wash. 228 (1909), sustaining a home rule charter provision for the recall of city officers.

• Sec. 6.

7

State ex rel. Halpin v. Powers, 68 Mo. 320 (1878); State ex rel. Ziegenhein v. St. Louis and San Francisco Railway Co., 117 Mo. 1 (1893); State ex rel. Hunt v. Bell, 119 Mo. 70 (1893); City of St. Louis v. Meyer, 185 Mo. 583 (1904). But see City of St. Louis v. Sternberg, 69 Mo. 289 (1879), where it was held that the power to frame a charter included the power to provide for taxation, provided there were no conflict with any state law.

8 State ex rel. Seattle v. Carson, 6 Wash. 250 (1893).