Law Lib CompLaw T Schl48m 1908 UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY WISCONSIN LIBRARY COMMISSION LEGISLATIVE REFERENCE DEPARTMENT COMPARATIVE LEGISLATION BULLETIN No 18 MARGARET A. SCHAFFNER MADISON WISCONSIN DECEMBER igo8 MUNICIPAL HOME RULE CHARTERS MARGARET A. SCHAFFNER COMPARATIVE LEGISLATION BULLETIN No 18 OCTOBER, 1908 Prepared with the co-operation of the Political Science Department of the University of Wisconsin WISCONSIN LIBRARY COMMISSION LEGISLATIVE REFERENCE DEP'T MADISON. Wis JflOS T CONTENTS Page. SCOPE OF THE HOME RULE MOVK.M KXT History a Constitutional Provisions "> Legislation <> Classes of Cities Having Home Rule Privileges 7 Separation of State and .Municipal Functions 7 Slate Functions ; Municipal Affairs LAWS AND JUDICIAL DECISIONS 10 Foreign Countries 10 United States 11 PROCEDURE IX CHARTER-MAKING 35 Initiation of Charter-making :;.') Selection of Chart or Hoard Constitution of Board Ratification of Charter -Charter Amendments REFERENCES DKMING. HORACE E. A municipal program. Publications of the National Municipal League, pam. no. 7, 1901, p. 1-15. Argument in favor of home rule for municipalities. DILLON, JOHN F. Commentaries on the law of municipal cor- porations. 4th ed. 2 vols. Boston, 1890. For historical and critical data relating to the development of municipal systems in different countries of the world, see, sees. 1-17. EATON. AM ASA M. The right to local self-government. Harv- ard Law Review, Feb., 1900. vol. 13, no. 6, p. 441-54. Presents a line of cases holding that towns and cities have cer- tain powers that the legislature cannot interfere with even though the constitution be silent on the subject. GOODXOW, FRANK J. Municipal home rule: a study in ad- ministration. New York, 1901. Gives an admirable analysis of the relation of the city to the- state. For a table of cases relating to municipal home rule, see p. VII to XVI. . Municipal problems. Xew York. 1904. For a discussion of municipal home rule, see ch. 2. The position, of the city; ch. 3. The sphere of municipal activity; ch. 4, The re- lation of the city to the state and ch. 9, The city council. HALL, CHARLES P. Constitutional and legislative limitations of the home rule charter in Minnesota. Michigan Law Review, November, 1900, vol. 5, no. 1, p. 6-11. Summarizes the practical results of the home rule charter provi- sions of the Minnesota constitution. HATTON, At 01 STUS RAYMOND. Digest of city charters to- gether with other statutory and constitutional provi- sions relating to cities. Prepared under the direction of the Chicago Charter Convention, Chicago, 1906. Contains the constitutional provisions regarding the framing of municipal home rule charters for Cal.. Col.. Minn.. Mo., Ore. and Wash. M A i/i IJIK. M ILO R. City made charters: a study in municipal home rule. Yale Review, February, 1905, vol. 13, p. 380-407. Valuable historical and critical data. Argument in favor of borne rule charters. Municipal (iovernment. Annuls of the American Academy of Political and Social Science. September. 1!K)|. vol. '.'1. P. 111-12;. A scries of notes on municipal home rule for the following U-:tli- ties: Denver, by Frank II. Huberts: Missouri, by II. I.. McCiuie: Washington, by .1. Allen Smith: Dnlutli. by \V. .1. .loenis: Califor- nia, by \Villiam Denman. PARSONS. FKANK. The citv for the people. Philadelphia. .1901.. Summari/es the leading constitutional and statutory provision-, relating to municipal home rule in the I'nited Stales. j> :>sr-4Us. PETKHS. JAMKS \V. S. Home rule charter movements in Mis- souri with special reference to Kansas ( "ily. Annals of the American Academv of Political and Social Science, Jan.. 190(5. vol. 21. p. 155 <>;. Historical and critical data relating tt> the municipal liome rule movement in Kansas City. SHAW, ALBERT. Municipal .-.overnments in continental Eu- rope. New York, HKK1 Contains valuable referenc-es to municipal home rule provisions on the Continent. See especially p. 30ti and :!s?. The chief provisions of the French municipal code are given in app. 3, p. 474-!>l. . Municipal 4. WILCOX, DKF.OS F. Municipal home rule: city charters framed by municipal conventions. Publications of the Michijran Political Science Association, March. 1901. vol. f>. no. 1. p. 44f) .!(;. I'roiKises a definite protrram of local self- as amended in 1898: Mo. Const. 1875, art. !). sees. Hi and 1? and sees, -jo .':,. as amended in HHCi: Okla. Const, 1<<:;. art. is. sec. :; (a) and sec. 3 (b): Ore. Const, art. 11. sec. >. as amended in !!)<)(>: and Washington, Const. 1SS1). art. 11. sec. 10. Beginning with the first constitutional provisions of Missouri in 1875 the home rule movement gradually extended to California in 1879, Washington in 1889, Minnesota in 1896, Colorado in 1902, Oregon in 1906, Oklahoma in 1907 and at the present time the propo- sition of municipal home rule is before the people of Michigan in the proposed constitution to be voted upon in November, 1908. Legislation Three general classes of legislation have been en- acted under the constitutional provisions for home rule: 1st, legislation giving- effect to the provisions where not self executing; 2nd, legislation to supple- ment the home rule system ; and 3rd, the ratifica- tion of home rule charters where the legislature is given the veto power. art*. Legislation to give effect to the home rule provisions is required in Minn. (Const, art. 1. sec :;ti; and in Wash. iConst. art. 11. sec. 10). For enabling acts, see Minn. Laws, 1897. c. -'.">.">: Laws, ivr.i. c. :!">1 : and Wash. Ballinger's Ann. Codes and Si. Is!)?, sees. 7^4-71'.'. Gf in ml itncM. The home rule systems of Washington and of Minnesota both reserve the ri-rht of the leirislat ure to enact MUNICIPAL HOME RULE CHARTERS 7 laws relating to municipal affairs, and such laws are paramount to the provisions of the local charters. See Stale v. -Carson. 1893, 6 Wash. 250, and the reservation in the Minn. Const, art. 4, sec. 3(5. Lryixluticr rt'to. In California the proposed charter must be submitted to the legislature for its "approval or rejection as a whole without power of alteration or amendment," but no home rule charter has ever been refused ratification by the Ic.irislat urc. See Cal. Const, art. 11, sec. 8. CLASSES OF CITIES HAVIXG HOME RULE PRIVILEGES The requirements for home rule privileges vary un- der the several constitutional provisions. Missouri re- quires a population of more than 100,000; Washing- ton, 20,000; California, 3,500; and Oklahoma, 2,000. Colorado extends the privilege to any city of the 1st and 2nd class. In Minnesota any city, or village which is to become thereby a city, ''may frame a charter for its own government." Oregon includes "every city or town," and the proposed constitution for Michigan provides for home rule for "each city and village." , SEPARATION OF STATE AND MUNICIPAL FUNCTIONS The question of "home rule" involves the separation of "municipal affairs" from "state functions." What is the sphere of the state and what is the sphere of the municipality? State functions It has been generally established by judicial deci- sions that the general laws of the state are supreme in. "state matters" and that municipal charter provisions 8 Mi MC/PAL HOME RULE are superseded by the state law in all matters per- taining to general police administration, the adminis- tration of justice, the conduct of elections, the admin- istration of education, the fixing of city boundaries, and the limitation of municipal indebtedness. For typical decisions compare. Stale ex rel. v. Police Com- missioners of Kansas City. I'.KH. ls| .Mo. lu<) ( Police): Miner v. Justices Courl. 1S!)S. ]>] Cal. 2rii:>. tss*). art. til. "Thr municipal council regulates li.v its deliberations the affairs of tin- commune". Ml X1CIPAL HOME RULE CHARTERS 11 American theory as recently developed, concedes to the municipality only such powers as have been specifi- cally granted, and in the absence of constitutional restrictions the municipality is subject to the will of the legislature. 3 In recent years England has applied the continental principle of local autonomy in municipal government and has extended central administrative control over matters of general governmental concern. 4 United States California. Const. 1879, art. 11. sec. 6, as amend, in 1896. Corporations for municipal purposes shall not be created by special laws ; but the legislature, by general laws, shall provide for the incorporation, or- ganization, and classification, in proportion to popu- lation, of cities and towns, which laws may be al- tered, amended, or repealed. Cities and towns here- tofore organized or incorporated may become organ- ized under such general laws whenever a majority of 'The supreme court of Michigan developed the doctrine that hack of constitutional provisions lie certain inherent powers of local self-gov- -ernment. that "local aelf-frovemment is a matter of absolute right and the state cannot take it away." but later decisions in Michigan some- what modified the earlier position. Compare the decisions in: People v. Hurlbut. 1871. 24 Mich. 44: People v. Common Council of Detroit. 1873. 28 Mich. 228: Park Commissioners v. the Mayor, etc.. 1874. 29 Mich. 343: Allor v. Wayne. 1880. 43 Mich. 76: Robertson v. Baxter. 1885. 57 Mich. 127: Attorney General v. Detroit. 1885. 58 Mich. 213: Wilcox v. Paddock. 1887. 65 Mich. 23: Board of Met. Police v. Board of Auditors. 1888. 68 Mich. 576. - For cases in other states which take a similar position see: E'eople v. Albertson. 1873. 55 N. Y. 50: People v. Lynch. 1875. 51 Cal. 15: People v. Porter. 1882. 90 N. Y. 68: State v. Denney. 1888. 118 Ind. 382: City of Evansville v. State. 1888. 118 Ind. 426: Rathbone v. Wirth. 1896. 150 X. Y. 459: State ex rel. Attorney General v. Moores, 1898, 55 Neb. 480. 4 See especially the provisions of the Municipal Corporations (Con- solidation) Act of 1882. 12 Ml A /( 7 VAL IH)MK Itl'IJ-: ('//.I /,"/'/: /,'N the electors voting at a general election shall so de- termine, and shall organize in corformity therewith; and cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by author- ity of this constitution, except in municipal affairs, shall be subject to and controlled by general laws. Const. 18T9, art. 11, sec. 8, as amend, in 1887, 1890, 1892, 1902 and 1906. Any city containing a popula- tion of more than 3,500 inhabitants may frame a charter for its own government, consistent with and subject to the constitution, (or, having framed such a charter, may frame a new one), by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of said city at any general or spe- cial election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board, or a majority of them, and returned, one copy to the mayor thereof, or other chief executive officer of such city, and the other to the recorder of the county. Such proposed charter shall then be published in two daily newspapers of general circulation in such city, for at least twenty days, and the first publication shall be made within twenty days after the completion of the charter ; pro- vided, that in cities containing a population of not more than 10,000 inhabitants, such proposed charter shall be published in one such daily newspaper; and within thirty days after such publication it shall be submitted MUNICIPAL HOME RULE CHARTERS 13 to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting" thereon shall ratify the same, it shall thereafter be submitted to the legislature for its ap- proval or rejection as a whole, without power of al- teration or amendment. Such approval may be made by concurrent resolution, and if approved by a ma- jority vote of the members elected to each house, it shall become the charter of such city, or, if such city be consolidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any existing charter, (whether framed under the provisions of this section of the constitution or not) and all amendments thereof, and all laws incon- sistent with such charter. A copy of such charter certified by the mayor, or chief executive officer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors and its ratification by them, shall after the approval of such charter by the legislature, be made in duplicate and deposited, one in the office of the secretary of state, and the other, after being recorded in said recorder's office shall be deposited in the archives of the city, and thereafter all courts shall take judicial notice of said charter. The charter, so ratified, may be amended at intervals of not less than two years by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof at a general or special election, held at least thirty days after the pub- lication of such proposals for twenty days in a daily 14 Ml'MClPAL HOME RULE CHARTERS -newspaper of general circu'ation in such city, and rati- fied by a majority of the electors voting thereon and approved by the legislature as herein provided for the approval of the charter. Whenever 15 per cent of the qualified voters of the city shall petition the legislative authority thereof to submit any proposed amendment or amendments to said charter to the qualified voters thereof for approval, the legislative authority thereof must submit the same. In submitting any such char- ter, or amendments thereto, any alternative article or proposition may be presented for the choice of the vo- ters, and may be voted on separately without prejudice to others. Const. (Amend. 1896), art. 11, sec. 8y 2 . It shall be competent, in all charters framed under the au- thority given by section eight of article eleven of this ^constitution, to provide, in addition to those provisions allowable by this constitution and by the laws of the state, as follows: 1. For the constitution, regulation, government, and jurisdiction of police courts, and for the manner in which, the times at which, and the terms for which the judges of such courts shall be elected or appointed, and -for the compensation of said judges and of their clerks and attaches. 2. For the manner in which, the times at which, and -the terms for which the members of boards of edu- cation shall be elected or appointed, and the number which shall constitute any one of such boards. 3. For the manner in which, the times at which, and MUNICIPAL HOME RULE CHARTERS 15 the terms for which the members of the boards of po- lice commissioners shall be elected or appointed; and for the constitution, regulation, compensation, and government of such boards and the municipal police force. 4. For the manner in which, the times at which, and the terms for which the members of all boards of election shall be elected or appointed, and for the con- stitution, regulation, compensation, and government of such boards, and of their clerks and attaches ; and for all expenses incident to the holding of any election. Where a city and county government has been merged and consolidated into one municipal govern- ment, it shall also be competent in any charter framed under said section eight of said article eleven, to pro- vide for the manner in which, the times at which, and the terms for which the several county officers shall be elected or appointed, for their compensation, and for the number of deputies that each shall have, and for the compensation payable to each of such deputies. The constitutional provisions relating to freeholders' char- ters were intended to give municipalities the sole right to regulate, control, and govern their internal conduct indepen- dent of the general laws: and this internal regulation and control by municipalities comprise those "municipal atfairs " spoken of in the constitution. If the charter is silent a gen- eral act upon the subject will govern as if it were a charter provision. Fragley v. Phelan, 1899. 126 Cal. 383. The provisions of freeholders' charters are supreme as to all matters which the constitution authorizes to be provided for therein, and are exempt from any subsequent legislative interference. Graham v. Mayor of Fresno, 1907. 151 Cal. 465. xVlso see Rothchild v. Bant el, 1907, 91 Pac. 803: Dinan v. Superior Court of City and County of San Francisco. 1907, 91 Pa*:.' 806,. and older cases cited in these decisions, especially Ex parte Braun, 1903, 141 Cal. 204. 16 VI X It'll 1 AL HOME RULE CHARTERS Colorado. Const. (Amend. 1902) art. 20, sec. 4. Makes provisions for a charter convention to frame the first home rule charter for the city and county of Denver. Const. (Amend. 1902) art. 20, sec. 5. The citixcns of the city and county of Denver shall have the ex- clusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein pro- vided. It shall be competent for qualified electors, in num- ber not less than five per cent, of the next preceding gubernatorial vote in said city and county to petition the council for any measure, or charter amendment, or for a charter convention. The council shall sub- mit the same to a vote of the qualified electors at the next general election, not he'd within thirty days after such petition is filed ; whenever such petition is signed by qualified electors in number not less than ten per cent, of the next preceding gubernatorial vote in said city and county, with a request for a special election, to be held not less than thirty days nor more than sixty days from the date of filing the petition ; Pro- vided, That any question so submitted at a special election shall not again be submitted at a special elec- tion within two years thereafter. In submitting any such charter, charter amendment or measure, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. When- ever the question of a charter convention is carried by MUNICIPAL HOME RULE CHARTERS 17 a majority of those voting thereon, a charter conven- tion shall be called through a special election ordinance as provided in section four (4) hereof, and the same shall be constituted and held and the proposed char- ter submitted to a vote of the qualified .electors, ap- proved or rejected, and all expenses paid, as in said section provided. The clerk of the city and county sha.l publish, with his official certification, for three times, a week apart, in the official newspaper, the first publication to be with his call for the election, general or special, the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition which is to be submitted to the voters. Within ten days following the vote the said clerk shall publish once in said newspaper the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition, which sha!l have been approved by a majority of those voting thereon, and he shall file with the secretary of state two copies thereof (with the vote for and against) officially certified by him, and the same shall go into effect from the date of such filing. He shall also certifiy to the secretary of state, with the vote for and against, two copies of every defeated alternative article or proposition, char- ter, charter amendment, measure or proposal for a charter convention. Each charter shall also provide for a reference, upon proper petition therefor, of measures passed by the council to a' vote of the quali- 18 MTMriPAL HOME RULE CHARTERS fied electors, and for the initiative by the qualified electors of such ordinances as they may by petition request. The signatures to petitions in this amendment men- tioned need not all be on one paper. Nothing herein or elsewhere shall prevent the council, if it sees fit, from adopting automatic vote registers for use at elec- tions and references. No charter, charter amendment, or measure adopted or defeated under the provisions of this amendment shall be amended, repealed or revived, except by peti- tion and electoral vote. And no such charter, charter amendment or measure shall diminish the tax rate for state puproses fixed by act of the general assembly, or interfere in any wise with the collection of state taxes. Const. (Amend. 1902) art. 20, sec. 6. Cities of the first and second class in this state are hereby em- powered to propose for submission to a vote of the qua'ified electors, proposals for charter conventions and to hold the same, and to amend any such charter, with the same force and in the same manner and have the same power, as near as may be, as set out in sections four (4) and five (5) hereof, with full power as to real and personal property and public utilities, works or ways, as set out in section one (1) of this amend- ment. Tin- proposed amendment (art. 20.) is hot repujrnani to sec. I. of tin- enabling act (approved March ''<. ls;.">: IS I'. S. Slat, at I,. 474) which requires the constitution to be republican in form and is not repugnant to the constitution of the I'nited states. People v Sours. IJMCJ. ::i Col. ::<;'.. MUNICIPAL HOME RULE CHARTERS 19- Si-c also Parsons v. People, 1904. 32 Col. 221 (especially p. 240) The authority of the charter convention to legislate under art. 20 of the Const, was limited to matters of purely local and, municipal concern. People v Johnson, 1905, 34 Col. 143. Mills Ann. St., Rev. Supp. 1891-1905, sec. 4502w. Refers to construction of art. 20 of the Const. Michigan. (Proposed constitution to be submitted to the people in Nov. 1908), art. 8, sec. 20. The legis- lature shall provide by a general law for the incorpora- tion of cities, and by a general law for the incorpora- tion of villages; . sec. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt, and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the constitution and general laws of this state. Minnesota. Const. (Amend. 1896) art. 4, sec. 36,. as amended in 1898. Any city or vilage in this State may frame a charter for its own government as a city consistent with and subject to the laws of this State, as follows : The legislature shall provide, un- der such restrictions as it deems proper, for a board of fifteen freeholders, who shall be and for the past five years shall have been qualified voters thereof, to be appointed by the district judges of the judicial dis- trict in which the city or village is situated, as the legislature may determine, for a term in no event to exceed six years which board shall, within six months after its appointment, return to the chief magistrate of said city or village a draft of said charter, signed 20 MTXICIPAL HOME RULE CHARTERS by the members of said board, or a majority thereof. Such charter shall be submitted to the qualified voters of such city or village at the next election thereafter, and if four-sevenths of the qualified voters, voting at such election shall ratify the same it shall, at the end of thirty days thereafter, become the charter of such city or vilage as a city, and supersede any existing charter and amendments thereof; provided, that in cities having patrol limits now established, such char- ter shall require a three-fourths majority vote of the qualified voters voting at such election to change the patrol limits now established. Before any city shall incorporate under this act the legislature shall prescribe by law the general limit > within which such charter shall be framed. Duplicate certificates shall be made setting forth the charter pro- posed and its ratification, which shall be signed by the chief magistrate of said city or village and authen- ticated by its corporate seal. One of said certificates shall be deposited in the office of secretary of state, and the other, after being recorded in the office of the register of deeds for the county in which such city or village lies, shall be deposited among the archives of such city or village, and all courts shall take judicial notice thereof. Such charter so deposited may be amended by proposal therefor made by a board of fifteen commissioners aforesaid, published for at least thirty days in three newspapers of general circulation in such city or village, and accepted by three-fifths of the qualified voters of such city- or village voting at MUNICIPAL HOME RULE CHARTERS 21 the next election, and not otherwise ; but such charter shall always be in harmony with and subject to the Constitution and laws of the State of Minnesota. The legislature ma,y prescribe the duties of the commission relative to submitting amendments of charter to the vote of the people and shall provide that upon applica- tion of five per cent of the legal voters of any such city or village, by written petition, such commission shall submit to the vote of the people, proposed amend- ments to such charter set forth in said petition. The board of freeholders above provided for shall be permanent, and all the vacancies by death, disability to perform duties, resignation or removal from the corporate limits, or expiration of term of office shall be filled by appointment in the same manner as the original board was created, and said board shall a' ways contain its full complement of members. It shall be a feature of all such charters that there shall be provided, among other things, for a mayor or .chief magistrate, and a legislative body of either one or two houses; if of two house.-, at least one of them shall be elected by general vote of the electors. In submitting any such charter or amendment thereto to the qualified voters of such city or village, any alter- nate section or article may be presented for the choice of the voters, and may be voted on separately without prejudice to other artic'es or sections of the charter or any amendments thereto. The legislature may provide general laws relating to affairs of cities, the application of which may .be 22 MUNICIPAL HOME RULE CHARTERS limited to cities of over fifty thousand inhabitants, or to cities of fifty and not less than twenty thousand in- habitants, or to cities of twenty and not less than ten thousand inhabitants, or to cities of ten thousand in- habitants or less, which shall apply equally to all such cities of either class, and which shall be paramount while in force to the provisions relating to the same matter included in the local charter herein provided for. But no local charter, provision or ordinance passed thereunder shall supersede any general law of the State defining or punishing crimes or misdemeanors. Rev. Laws, 1905, sees. 746-758, and Laws, 1907, c. 17, c. 199, c. 216, c. 373, and c. 375. Provision is made for carrying the constitutional amendment into effect and definite limits are prescribed within which cities may frame their own charters. Limitations are placed on bonded indebtedness, and safeguards are provided in the granting of franchises. Successive four year tenures are prescribed for the charter boards. Otherwise the legislative enactments largely repeat the provisions of the constitutional amendment. The provisions of Cons!. ;ir!. I. sec. :!<>. requiring tin- legis- lature to prescribe limits within which cities may frame their own charters, is sufficiently complied with when the le.irislsi- ture prescribes and imposes such <>. SI Minn. 7'.). The constitutional amendment of 1SU.S (sec. :><>. art. I) pro- vidinjr for the submission of new charters or amendments to the voters of the localities interested, for ratification, is es- sentially republican, and is not in violation of sir;. 1. sec. I. of the federal constitution. Hopkins \. City of Duluth. I'.KKI. si Minn. IS!). MUNICIPAL HOME RULE CHARTERS 2 The various provisions of a municipal charter, adopted un- der the constitution authorixing cities to frame their own charters, as to subjects properly belonging to the government of municipalities, have all the force and effect of legislative enactments. Slate ex rei. Freeman v. /immerman. 1902,86 Minn. :>">:!. The power and authority conferred by the Constitution upon cities to frame their own charters extends to and embraces any subject appropriate to the orderly conduct of municipal affairs. State ex rel. v. District Court of St. Louis County, l!Mi:i. !)() Minn. 457. The charter of any city incorporated under Const, art. 4, sec. :i(i. allowing cities to frame their charters and providing that such charter shall be in harmony with the constitution and laws of Minnesota must comply with the public policy of the state, but on any subject appropriate to the orderly con- duct of municipal affairs it may differ in detail from those of existing laws. Grant v. Berristord, 1904, 94 Minn. 45. Followed in Peterson v. City of Red Wing, 1907, 101 Minn. <>>. I'nless otherwise expressly provided, the provisions , of a "home rule charter", if subject to municipal regulation, su- persede the general laws with reference to the same subject- matter. Turner v. Snyder, 1907, 101 Minn. 481. Missouri. Const. 1875 art. 9, sec. 16. Any city having a population of more than one hundred thou- sand inhabitants may frame a charter for its own. government, consistent with and subject to the Con- stitution and laws of this State, by causing a board of thirteen freeholders, who shall have been for at least five years qualified voters thereof, to be elected by the qualified voters of such city at any general or special election ; which board shall, within ninety days after such election, return to the chief magistrate of such city a draft of such charter, signed by the members of such board or a majority of them. Within thirty days thereafter, such proposed charter shall be sub- mitted to the qualified voters of such city, at a gen- 24 MUNICIPAL HOME RULE eral or special election, and if four-sevenths of such qualified voters voting thereat shall ratify the same, it shall, at the end of thirty days thereafter, become the charter of such city, and supersede any existing charter and amendments thereof. A duplicate certificate shall be made, setting forth the charter proposed and its rati- fication, which shall be signed by the chief magistrate of such city and authenticated by its corporate seal. One of such certificates shall be deposited in the of- fice of the secretary of state, and the other, after being recorded in the office of the recorder of deeds for the county in which such city lies, shall be deposited among the archives of such city, and all courts shall take judicial notice thereof. Such charter, so adopted, may be amended by a proposal therefor, made by the law- making authorities of such city, published for at least thirty days in three newspapers of largest circulation in such city, one of which shall be a newspaper printed in the German language, and accepted by three-fifths of the qualified voters of such city, voting at a gen- eral or special election, and not otherwise; but such charter shall always be in harmony with and subject to the Constitution and laws of the state. Tin- provision of sec. 1(1, art. !). that charters may be amended by the ads of the people of the city "and not other- wise" is mandatory. It is binding on all departments of the state iro\ -eminent and forbids the regulation and direction of pnrelv municipal affairs by act of the leirislal nre. Kansas City ex rel. Xortli Park District v. Scarrill. isii/i. }>: Mo. (!>. The charters and amendments adopted under art. !>. sec. 1li. supersede the ireneral statutes where the two conflict as to mere municipal regulations. Kansas Cit\ v. Marsh Oil Co.. 1807. 140 Mo. 158. MUNICIPAL HOME RULE CHARTERS 25 The power conferred by art. !). sec. Hi is continuing so that a city to which the section applies does not exhaust its con- stitutional grant after once adopting a charter thereunder. Morrow v. Kansas City. 1905, 180 Mo. (57"). Const. 1875 art. 9, sec. 17. It shall be a. feature of all such charters that they shall provide, among other things, for a mayor or chief magistrate, and two houses of legislation, one of which at least shall be elected by general ticket ; and in submitting- any such charter or amendment thereto to the qualified voters of such city, any alternative section or article may be presented for the choice of the voters, and may be voted on sepa- rately, and accepted or rejected separately, without prejudice to other articles or sections "of the charter or any amendment thereto. Const. 1875, art. 9, sees, 20-5, as amended in 1902. Provisions for home rule charter for St. Louis. sec. 20. The city of St. Louis may extend its limits so as to embrace the parks now without its boundaries, and other convenient and contiguous territory, and frame a charter for the governemnt of the city thus enlarged, upon the following condition, that is to say : The council of the city and county court of the county of St. Louis shall, at the request of the mayor of the city of St. Louis, meet in joint session and order an election, to be held as provided for general elections, by the qualified voters of the city and county, of a board of thirteen freeholders of such city or county, whose duty shall be to propose a scheme for the en- largement and definition of the boundaries of the city, the reorganization of the government of the county, 20 MLMCIPAL HOME RULE L'HA /,' '1 7.7,' N the adjustment of the relations between the city thus enlarged and the residue of St. Louis county, and the .government of the city thus enlarged, by a charter in harmony with and subject to the constitution and laws of Missouri, which shall, among other things, provide for a chief executive and two houses of legislation, one of which shall be elected by general ticket, which scheme and charter shall be signed in duplicate by said board or a majority of them and one of them returned to the mayor of the city and the other to the presid- ing justice of the county court within ninety days af- ter the election of such board. Within thirty days thereafter the city council and county court shall sub- mit such scheme to the qualified voters of the whole county and such charter to the qualified voters of the -city so enlarged, at an election to be held not less than twenty nor more than thirty days after the order therefor; and if a majority of such qualified voters, voting at such election, shall ratify such scheme and charter, then such scheme shall become the organic law of the county and city, and such charter the or- ganic law of the city, and at the end of sixty days thereafter shall take the place of and supersede the charter of St. Louis, and all amendments thereof, and all special laws relating to St. Louis county incon- sistent with such scheme. The constitutional provision (art. !. sec. '.'HI that laws passed under the authority of the charter must be in harmony with the constitution and laws of the state is not to be under- stood as prescribing that there must lie an exact coincidence in all possible points of comparison. The meaning is that no regulation established b\ the charter or made by its authority Ml'XICIPAL HOME RULE CHARTERS 27 shall do violence either to the declared laws or to the policy or manifest ^ovennental purposes of the state, as shown by the constitution and statues. In re Dunn, 1880, !) Mo. App. 866. sec. 21. A copy of such scheme and charter, with a certificate thereto appended, signed by the mayor and authenticated by the seal of the city, and also signed by the presiding justice of the county court and authen- ticated by the seal of the county, setting forth the sub- mission of such scheme and charter to the qualified voters of such county and city, and its ratification by them ,sha!l be made in duplicate, one of which shall be deposited in the office of the secretary of state, and the other, after being recorded in the office of the recorder of deeds of St. Louis county, shall be depos- ited among the archives of the city, and thereafter all courts shall take judicial notice thereof. sec. 22, as amended in 1902. The charter so rati- fied may be amended by proposals therefor submitted by the lawmaking authorities of the city to the quali- fied voters thereof, at a general or special election held at least sixty days after the publication of such pro- posals and accepted by three-fifths of the qualified voters voting for or against each of said amendments so submitted; and the lawmaking authorities of such city may order an election by the qualified voters of the city of a board of thirteen freeholders of such city to prepare a new charter for such city, which said charter shall be in harmony with and subject to the constitution and laws of the state, and shall pro- vide, among other thing's, for a chief executive and at 88 Ml MCI PAL HOME RULE CHARTERS least one house of legislation to be elected by a gen- eral ticket. Said revised charter shall be submitted to the qualified voters of such city at an election to be held not less than twenty nor more than thirty days after the order therefor, and if a majority of such qualified voters voting at such election ratify such charter, then said charter shall become the organic law of such city, and sixty days thereafter shall take effect and supersede the charter of such city and all special laws inconsistent therewith. sec. 23. Such charter and amendments shall always be in harmony with and subject to the constitution and laws of Missouri, except only that provision may be made for the graduation of the rate of taxation for city purposes in the portions of the city which are added thereto by the proposed enlargement of its boundaries. In the adjustment of the relations be- tween city and county, the city shall take upon itself the entire park tax ; and in consideration of the city becoming the proprietor of all the county buildings and property within its enlarged limits, it shall assume the whole of the existing county debt, and thereafter the city and county of St. Louis shall be independent of each other. The city shall be exempted from all county taxation. The judges of the county court shall be elected by the qualified voters outside of the city. The city, as enlarged shall be entitled to the same representation in the general assembly, collect the state revenue and perform all other functions in relation to- the state, in the same manner, as if it were a county MUNICIPAL HOME RULE CHARTERS 29 as in this constitution denned; and the residue of the county shall remain a legal county of the state of Mis- souri, under the name of the county of St. Louis. Un- til the next apportionment for senators and representa- tives in the general assembly, the city shall have six senators and fifteen representatives, and the county one senator and two representatives, the same being the number of senators and representatives to which the county of St. Louis, as now organized is entitled under sections eight and eleven of article 4 of this constitution. Sees. 20-25 of art. '.). of the Constitution conferred pn the city of St. Louis the power to regulate its own affairs without interh-rence from the state legislature except in cases ex- pivssly intrusti',1 to the legislature by some constitutional ex- ception. Kwinjr v. Hoblitzelle, 1885. 15 Mo. App. 441. Oklahoma. Const. 1907, art. 18, sec. 3 (a). Any city containing a population of more than 2,000 in- habitants may frame a charter for its own govern- ment, consistent with and subject to the constitution and laws of this state, by causing a board of free- holders, composed of two from each ward, who shall be qualified electors of said city, to be elected by the qualified electors of said city, at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by 'the members of such board or a majority of them, and returned, one copy of said charter, to the chief executive officer of said city, and the other to the register of deeds of the county in which said city shall 30 l/T \7f7PAL HOME RULE CHARTERS be situated. Such proposed charter shall then be pub- lished in one or more newspapers published and of general circulation within said city, for at least twenty- one days, if in a daily paper, or in three consecutive issues, if in a weekly paper, and the first publication shall be made within twenty days after the completion of the charter ; and within thirty days, and not earlier than twenty days after such publication, it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the governor for his approval, and the governor shall approve the same if it shall not be in conflict with the constitution and laws of this state. Upon such approval it shall be- come the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. A copy of such char- ter, certified by the chief executive officer, and authen- ticated by the seal of such city, setting forth the sub- mission of such charter to the electors and its ratifica- tion by them shall, after the approval of such charter by the governor, be made in duplicate and deposited, on,e in the office of the secretary of state and the other, after being recorded in the office of said register of deeds, shall be deposited in the archives of the city; and thereafter all courts shall take judicial notice of said charter. The charter so ratified may be amended by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof MUNICIPAL HOME RULE CHARTERS 31 (or by petition as hereinafter provided) at a general or special eleciton, and ratified by a majority of the qualified electors voting thereon, and approved by the governor as herein provided for the approval of the -charter. sec. 3 (b). An election of such board of freeholders may be called at any time by the legislative authority of any such city and such election sha'l be called by the -chief executive officer of any such city within 10 days after there shall have been filed with him a petition demanding the same, signed by a number of qualified electors residing within such city, equal to 25 per- centum of the total number of votes cast at the next preceding general municipal e'ection ; and such elec- tion shall be held not later than 30 days after the call therefor. At such election a vote shall be taken upon the question of whether or not further proceedings toward adopting a charter shall be had rn pursuance to the call, and unless a majority of the qualified electors voting thereon shall vote to proceed further, no fur- ther proceedings shall be had, and all proceedings up to that time shall be of no effect. Oregon. Const, art. 11. sec. 2, as amended in 1906. Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of corporation for any municipality, city, or town. The legal voters of every city and town are hereby granted power to en- act and amend their municipal charter, subject to the Ml Mr l I'M. HOME RULE CHARTERS constitution and criminal laws of the state of Oregon, (Proposed by initiative petition and adopted, June 4, 1906.) Const. ;iri. II. sec. '^. as amended June 4, I'.tcii. c\pressl\ de- prives the legislative assembly of all authority i<> marl, amend or repeal any charter of a city or town the le^al voters of which have reserved to themselves the exercise of such jiower. except the riyht of appeal. Acme Dairv Co. v. Cit\ of Astoria, 1!Ki;. '.)<> Pac. (Ore.) 15J5. Const, art. 11. sec. -'. as amended . I une 1. 1 '.('<). prohihits the legislature from' amending the charter of cities and towns, the riirhl of which is reserved to the voters thereof, and art. I. as amended .lune 1. 1!M><>. by section la. provides that the refer- endum may be demanded by the people, which power is re- served to the leiral voters of every municipality and district, as to all local, special, and municipal legislation of e\ery kind in and for their respective municipalities and districts: that the manner of excercisiny such power shall be prescribed by the ireneral laws, except that the cities and towns may pro- vide for the manner of exercising such powers as to their mu- nicipal legislation. Held, that the initiative and referendum power SO Conferred on municipalities was not limited to the enactin-r or repealing of ordinances but extended to the amendment of the charter. Acme Dairv Co. v. Citv <>f Asto- ria. l!)(>r. !M) Pac. (Ore.) 15SJ. Washington. Const. 1889, art. 11, sec. 10. . . . Any city containing a population of twenty thousand inhabitants, or more, shall be permitted to frame a. charter for its own government, consistent with and subject to the constitution and laws of this state, and or such purpose the legislative authority of such city may cause an election to be had, at which election there shall be chosen by the qualified electors of said city, fifteen freeholders thereof who shall have been resi- dents of said city for a period of at least two years preceding their election and qualified voters, whose duty it sha 1 be to convene within ten days after their election and prepare and propose a charter for such city. Such proposed charter shall be submitted to the MUNICIPAL HOME RULE CHARTERS 33 qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it sha.l become the charter of said city, and shall be- come the organic law thereof, and supersede any ex- isting charter, including amendments thereto, and all special laws inconsistent with such charter. Said pro- posed charter shall be published in two daily news- papers published in said city, for at least -thirty days prior to the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given for at least ten days before the day of election, in all election districts of said city. Said elections may be general or special elections, and except as herein provided, shall be governed by the law regulating and controlling general or special elections in said city. Such charter may be amended by pro- posals therefor submitted by the legislative authority of such city to the electors thereof at any general elec- tion after notice of said submission, published as above specified, and ratified by a majority of the qualified -electors voting thereon. In submitting any such char- ter or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without preju- dice to others. General laws cannot be affected by the adoption of a mu- nicipal freeholders' charter but are binding upon the corpora- tion. State v. Carson, 1893, 6 Wash. 250. The right of a city of the first class to make a new charter is included within the constitutional ."rant of power to frame 34 MUNICIPAL HOME RULE CHARTERS a charier and the mode pointed out in art. 11. sec. H>. of the constitution for submitting proposed amendinenls to a vote of the peo|)le should not be construed as exclusive of e\er\ oilier ini-ihod. Reeves v. Anderson. ]S!)5. II! Wash. 17. Baliinger's Ann. Codes and St. 1897, sees. 734-742. Enumerates the powers of cities having 20,000 popu- lation or more and makes provision in detail for the organization and government of such cities under the home rule provisions of the constitution. (Laws,. 1890, p. 131, sec. 23 and p. 215, sees. 1-9.) sec-. 7G3-768. Upon petition of l /$ of the qualified electors, the city council is required to provide for the election of freeholders to propose changes in the charter. (Laws, 1895, c. 27.) Laws, 1903, c. 186. On petition of 15% of the qualified voters of any municipality, having adopted a charter under the laws of the state, requesting the adoption of a specified charter amendment providing for any matter within the realm of local affairs or municipal business, the amendment must be submitted to the voters and if approved by a majority of the electors voting upon the proposition the amendment is to become a part of the charter law. This provision is not to be construed as depriving city councils from submitting proposed charter amend- ments to the voters as now provided but is to be held as affording a concurrent and additional method for proposing and submitting amendments. 1'nder Acts. IIKKJ. c. lS(i. requirin.ir submission to the voters of an amendment of a city charier on pet it ion of a certain proportion of the qualified voters of the city il lies with the city council in the first instance to pass on the question of the .qualification of the signers. Hind man v. K\d. I'.KH;. s| Par. (Wash.) . MUNICIPAL HOME RULE CHARTERS 35 PROCEDURE IN CHARTER-MAKING The procedure required by the different constitu- tional provisions in the drafting of home rule charters is very similar in the different states. Initiation of charter-making The power to initiate proceedings for framing a charter is most generally placed with the law-making authorities of the municipality but this is not uni- formly the rule. In Minnesota the district court is authorized to take the initiative. Quite generally pro- vision is made for initiating proceedings upon petition of a specified percentage of the qualified electors. Initiative by district court. The Minnesota provi- sion is the only one which authorizes the judiciary to take the initiative in the framing of freeholders' char- ters. See Minn. Const, art. 4. sec. :5(i. Initiative by law making authority. In a number of the states the legislative authority of the city may call an election for a charter board at its discretion. See Cal. Const, art. 11, sec. 8: Mo. Const, art. 9, sec. 16; Okla. Const, art. 18, sec. (3) and Wash. Const, art. 11, sec. 10. 36 MUNICIPAL HOME RULE CHARTERS Initiative by electors. In certain states an election for a charter convention must be called upon petition of a specified percentage of the qualified voters. In Colorado the number of signatures required is 5% and in Oklahoma and in Washington each 25 %. Sec Col. Cons'., ar:. >'. sec. ')-. Okhi. Const, art. 18, S6C. 3 (b) and Wash. |>aws. IS!);!, c. 27. In Minnesota the board of freeholders in charter commission must be assembled upon petition of 5% of the legal voters. Selection of charter board E'cction by people. Provision is generally made for the election of the charter board by the qualified elec- tors of the municipality. Compare the provisions of Cal. Const, ar!. 11. sec. S: Col. ('mis!, art. '.'0. sec. ">: Mo. Cons!, art. S). sec. Hi. and sec. '.'d: Okla. Const, art. S. sec. I! (a): and Wash. Const, art. 11. sec. 10. Appointment by judiciary. Minnesota is an excep- tion to the general rule and provides that the board be appointed by the district court of the judicial dis- trict in which the city or village is situated. Si-e M inn. ( 'oust., art. 1. sec. :t(i. Constitution of board X timber of members. The charter board is com- posed of 13 members in Missouri, 15 members each in California. Minnesota and Washington, and 21 members in Colorado. Oklahoma provides for the election of 2 freeholders from each ward of the munic- ipality. MUNICIPAL HOME RULE CHARTERS 37 Tenure of office. In all of the states except Min- nesota the term of office expires after the charter has been framed. In Minnesota the board is permanent but the term of office is limited to 4 years. Sec Minn Const, art. J. sec. M and Laws. LSD!), c. ->5l. Ratification of charter The proposed charter must be submitted to a refer- endum vote of the qualified electors in each of the states. Ratification by electors. In Colorado and in Wash- ington a majority of the qualified electors voting on the proposition for the charter is sufficient for ratifica- tion. In Missouri and in Minnesota a majority of 4/7 of the electors voting at the election is necessary and Minnesota requires a majority of $4 for changing patrol limits. Legislative veto. California requires a majority of the qualified electors "voting thereon" and a subse- quent submission of the charter to the legislature for its approval or rejection as a whole without power of alteration or amendment. Approval of governor. Oklahoma provides that a charter ratified by the people must be submitted to the governor of the state and he is required to approve the same if it is not in conflict with the laws of the state. Charter amendments In most of the states the procedure for securing a charter amendment is similar to the method of secur- 38 MI XWIPAL HOME RULE CHARTERS ing a complete charter but a wider use of the initia- tive through petition is generally authorized in the case of amendments. The submission of charter amendments is required upon petition of 15% of the qualified voters in California, 5% in Colorado and Minnesota and 25% in Oklahoma. Washington pro- vides 2 alternative methods for amendments : upon peti- tion of 25% of the qualified electors the city council must provide for the election of freeholders, to pro- pose changes in the charter, or if 15% of the qualified voters request the submission of a specified charter amendment it must be submitted. Compare the provisions of Cal. Const, art. 11. sec. 8; Col. Const, art. 'id sec. .">: Minn. Const, art. J, sec. ::<>: Okla. Const, art. IS. sec. :>, (b): Wash. Laws. IS! (.I. c. ^7 and Laws. 1903 c. ISO. 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