other home rule states there is too much detail as to procedure, and no adequate grant of local powers; those of Oregon and Texas are too brief and vague; and those of California and the proposed New York constitution much too long and complicated.

Comments and Problems: The defects and evils arising from the present methods of legislation on municipal affairs may be summarized as follows:

(a) The waste of legislative time, and the demoralizing effect on the work of the legislature;

(b) The lack of adequate power on the part of local communities to deal promptly and effectively with local problems;

and

(c) The lack of responsibility for acting on local problems;

(d) The voluminous and confused state of the present laws. In favor of a system of municipal home rule, it is urged that it will:

(a) Give each community an opportunity to have the kind of local government it wants;

(b) Develop public interest in local affairs;

(c) Enable local communities to deal with local problems. more promptly;

(d) Make local government better adapted to local conditions, and more stable for each community;

(e) Simplify the laws and machinery of local government; and (f) Relieve the legislature.

A fundamental objection urged against municipal home rule is that it is inconsistent with the sovereignty of the state, but this is not borne out in practice. Some specific objections are not consistent with each other-as that it will increase the confusion in local government, and yet will make changes more difficult than under present methods. More serious difficulties are, however, raised as to the application of the general principle.

The outline of a possible home rule program is presented on pages 423 to 428, including provisions as to the character and extent of the power to be granted to municipalities, and also suggested limitations and restrictions.

II. THE STATE AND MUNICIPAL GOVERNMENT IN ILLINOIS.

Legislative Authority over Municipalities: At the basis of the legal relations between the State and municipal governments in Illinois is the principle of legislative supremacy, except as modified by provisions in the state constitution. The general principle was expressed by the Supreme Court as early as 1826; and the situation under the first state constitution was more definitely stated in the case of People v. Wren (in 1843) as follows:1

"As the constitution of this state contains no restriction, either express or implied, upon the action of the legislature in such a case, we hold that it has absolute control over municipal corporations, to create, change, modify or destroy them at pleasure **** The creation of a municipal corporation depends in no degree upon the assent or dissent of the inhabitants of a particular locality, unless such a condition be contained in the law of its creation."

Under the later state constitutions the plenary power of the legislature has been limited in some respects; and general statements in judicial opinions have recognized such restrictions, which will be noted later. But the main doctrines of legislative control, except as specifically limited, and of strict construction of municipal powers, remain in full force. 2

Special Legislation under the First Constitution: During the periods of the first and second constitutions, municipal government in Illinois was regulated for the most part by special laws for particular towns and cities. Before state government, the towns of Kaskaskia and Shawneetown had been incorporated. After 1818 other towns were similarly incorporated by special acts of the legislature. A general act for the incorporation of towns was enacted in 1831; and additional towns were organized under this law, although special acts for towns continued to be passed.

15 Ill. 269, 275 (1843). But note the dissenting opinion by Justice Wilson that the legislature did not have power to leave a part of the state without any county organization whatever. Note also Coles v. County of Madison, 1 Ill. 154, 160 (1826), and Field v. People 3 Ill. 79, 95 (1839).

2 Thus, in the case of Wilson v. Trustees of the Sanitary District, 133 Ill. 443, 460 (1890) it is stated that: "The omnipotence of the General Assembly in all matters relating to the authorization of the formation of municipal corporations and investing them with powers of local government, except so far as the restrictions have been placed upon the legislature by the constitution, has been often asserted." Note also, True v. Davis. 133 I. 522, 531, (1889); Seeger v. Mueller, 133 Ill. 86, 94 (1890); Smith v. McDowell, 148 Ill. 51, 62 (1893); Chicago v. M. & M. Hotel Co. 248 Ill. 264, 269 (1911).

Chicago, which was first organized as a town under the general law, received a special town charter in 1835, and its first city charter in 1837. The latter was framed by a local committee, approved mass meeting; and enacted by the legislature with changes. Nearly a score of amending and supplemental acts relating to Chicago were passed during the next decade.

at a

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Seven other places were incorporated as cities before 1847, all by special laws-Alton, Galena, Springfield, Quincy, Nauvoo, Peoria and Metropolis. The Springfield and Quincy charters were nearly identical, and were followed in later charters. Five of these seven city charters were submitted to a local referendum before going into effect; but this practice was not followed in amending and supplemental legislation which soon began to appear.

Limitations in the Constitution of 1848: The Constitution of 1848 contained several provisions relating to municipal and local government. Article VII on Counties restricted the organization of new counties and changes in county boundaries and county seats, and authorized an optional system of township organization. In the Article on the Judiciary, the power of the General Assembly to establish inferior courts was limited by providing for circuit and county courts and specifically authorizing inferior local courts in cities, which should have a uniform organization and jurisdiction. Section 5 of Article IX provided for vesting power of taxation for corporate purposes in the corporate authorities of counties, townships, school districts, cities, towns and villages.

As a result of these provisions, the plenary power of the legis lature was limited to a slight extent; but no definite measure of municipal home rule was conferred. Judicial opinions from time to time restated the rule of legislative control, as in the following:

"While private corporations are regarded as contracts which the legislature can not constitutionally impair, as the trustee of public interests, it has the exclusive and unrestrained control over public corporations; and as it may create, so it may modify or destrov, as public exigency requires, or the public interest demands. *** Their whole capacities, powers and duties are derived from the legislature and subordinate to that power." 3

People v. Power. 25 Ill. 169. 174 (1861): See County of Richmond v. County of St. Lawrence, 12 Ill. 1. 7 (1850): Trustees v. Tatman, 13 Ill. 27. 30 (1851); Gutzweiler v. People. 14 III. 112 (1852): Freeport v Supervisors. 41 Ill. 495. 499 (1866)); Trustees of Jacksonville v. McConnel. 12 Ill. 138 (1850): Caldwell v. City of Alton, 33 Ill. 417 (1864): Chicago v. Rumpff, 45 Ill. 90, 95 (1867).

A few judicial interpretations of particular provisions of the constitution may be noted: City of Rockford v. Maynard, 14 Ill. 419 (1853); Prettyman v. Supervisors of Tazewell Co. 19 Ill. 406, 411 (1858); People v. Mayor, etc. of Chicago, 51 I 17 (1869).

The most important rulings protecting local communities against the power of the legislature were in two cases decided in 1869. People v. Mayor etc., of Chicago, 51 Ill. 17 (1869); Harward v. St. Clair & M. L. & D. Co., 51 Ill. 130, 134 (1869); Contrast, Shaw v. Dennis, 10 Ill. 405, 416 (1849).

Special Legislation Under the Second Constitution: From 1848 to 1870, there was a rapid development of towns and cities in Illinois, both in number and population; and as the practice of special legislation continued the number and volume of special laws relating to municipal government increased enormously. At the same time former methods for testing local approval of such measures fell into disuse; and important acts were passed against vigorous local opposition.

The new optional system of township government authorized by the Constitution of 1848 had important results on the government of cities. The townships included any city within their geographical limits; and an overlapping series of township officials was now provided in addition to the city officials in counties which adopted the new system.

One step looking towards more general legislation for cities was an act of February 10, 1849, supplementing the general town law, and providing that any incorporated town of more than 1,500 population might vote to incorporate as a city with all the powers granted in their special charters to the cities of Springfield and Quincy. Some towns became cities under this law (e. g. Bloomington, Belleville and Rockford); but special legislation for such cities was also passed; and most cities were organized and governed entirely under special laws, although in a number of cases the original charters were made up in the main of provisions from the Springfield and Quincy charters.

From time to time general revisions of city charters were passed. A second city charter was enacted for Chicago in 1851, and a third in 1863. General revisions of their charters were passed for about a dozen other cities between 1857 and 1869; and these documents became more and more bulky.

Amending and supplementing laws for the 100 cities and for many of the 300 incorporated towns in the state were still more numerous than new and revised charters.

The total mass of special legislation is indicated in the increasing volume of state laws. In 1857 the private laws formed a volume of 1,550 pages. By 1867, the private laws were published in three volumes of more than 2,500 pages, of which 1,050 related to cities, towns and schools. In 1869 there was a further increase to four volumes of 3,350 pages, of which 1,850 pages related to cities, towns and schools.

Obviously such a flood of statutory enactments could not receive adequate consideration either in the General Assembly as a whole or even in the committees. Most of the bills were doubtless prepared in the localities concerned; and were passed at the request of the local members of the legislature. But, at best, there was little assurance that they represented the views of the local communities; and the frequent changes from session to session apparently reflected the varying opinions of temporary officials and representatives. At times measures were enacted from partisan or other politi

cal motives, in the face of active local opposition, and in some cases over the veto of the Governor. Moreover, it was impossible for any definite and consistent policy to be followed; and the formal system of detailed legislative control tended to degenerate into a bewildering chaos of statutory provisions with no semblance of responsibility or system.

In the constitutional convention of 1862, a section was adopted prohibiting local or special laws on a list of enumerated subjects. As reported by the committee of the whole, this included laws for the incorporation of cities, towns and villages; but this clause was struck out by the convention. In the proposed constitution special or local laws were prohibited on county and township business; locating and changing county seats, laying out, opening, altering and working on roads and highways, and vacating roads, town plats, streets, alleys and public squares; as well as some other matters.*

Another section of the proposed constitution required general laws and prohibited separate acts relating to corporations. These provisions reported by the committee on miscellaneous corporations were substituted for a proposed section proposed by the committee on municipal corporations providing for general laws, uniform in operation, and prohibiting special laws relating to municipal corporations, except cities of over a certain number of inhabitants. 5

The Constitution of 1870: In the Constitutional Convention of 1869-70, a good deal of attention was given to municipal problems. These were handled by several different committees; and some difficulties arose from the fact that the same and closely related topics were considered by more than one committee, with the result that conflicting reports were presented to the convention.

The committee on the legislative department included in its report a section prohibiting special legislation on an enumerated list of subjects, among which were named laws incorporating or amending the charters of cities or towns. This section was discussed for two days (February 10 and 11); and about half of the time was given to the clause on cities and towns. The debate was discursive and shows little evidence of any systematic study of the situation in Illinois, or in other states.

Mr. Orville H. Browning of Quincy urged that the criticism of special legislation applied to private and not to municipal corporations; but this view received little support. It was stated that the greater portion of special legislation applied to cities and towns. Complaints were made that the Chicago "city ring" could have laws passed (raising salaries, and extending terms of office) against the wish of the public; of the repeal of the charter of Warsaw se

Journal of the Convention of 1862, pp. 456, 601, 831, 1080; Proposed Constitution. Art. IV, Sec. 30.

Journal of the Convention of 1862, pp. 706, 721, 762, 1092; Proposed Constitution Art. IX, Secs. 1-2.