Daniel E. Brannen Jr.
December 5, 2005
Municipal governments are not sovereign, according to Dillon’s Rule. Instead, they are entirely dependent on state governments for their existence, form, and function. The Cooley Doctrine disputes this, asserting that people have a right to local self-government without specifically denoting the metes and bounds of the right. The purpose of this memorandum is to begin to extract the essence from a line of state court decisions following the Cooley Doctrine.
Dillon’s Rule
John Forrest Dillon was a chief justice on the Iowa Supreme Court. In 1872 he published Commentaries on the Law of Municipal Corporations. It contained what one scholar (see Gere in bibliography below) called the “classic statement” of Dillon’s Rule:
It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishments of the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.
Publication of the Commentaries came four years after the decision in Clinton v. Cedar Rapids and Missouri River R. R., 24 Iowa 455 (1868). In Clinton, the Iowa legislature authorized a railway company to take a street from the city of Clinton, without permission or compensation, for construction of a portion of its railway. The city obtained an injunction in district court to prevent the railway from carrying out its plans, but the Iowa Supreme Court reversed. The Clinton decision contains Dillon’s most-quoted application of Dillon’s Rule:
Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation ... the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, to phrase it, the mere tenants at will of the legislature.
Id. at 475.
People v. Draper
Thomas McIntyre Cooley was a justice on the Michigan Supreme Court. Cooley has been described as a laissez-faire conservative who feared state government interference with business. One way to limit the power of state government was to champion an inherent right to local-self government. He did so, beginning with the decision in People v. Hurlbut in 1871.
Fourteen years earlier, Justice Brown wrote a dissenting opinion in People v. Draper, 15 N.Y. 532 (1857), that laid some of the foundation for Cooley’s work. The case involved a New York state statute that created a board of commissioners of police for a new four-county district. The new board was to contain the mayors of New York and Brooklyn plus five commissioners appointed by the governor with the advice and consent of the senate. The new board was to have full power to appoint subordinate officers and policemen. The new board replaced an old board for New York that contained the mayor, recorder, and city judge. Under the old board, the police force was appointed by the mayor, common council, and ward assessors.
In a suit by the mayor for the people to strike down the statute, the Court of Appeals of New York ruled that the statute was constitutional, that it did not violate the right of the people to have elective control over their police force. It reasoned that the constitution only preserved the right to elect county, city, town, and village officers as those units of government existed at the time of adoption of the constitution. Appointment of officers to a multi-county police district created by the legislature after adoption of the constitution was controlled by the portion of the constitution that said, “All other officers whose election or appointment is not provided for by this constitution, and all offices whose offices may hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct.”
Justice Brown dissented:
I dissent from them because they sanction an exercise of legislative power never before exerted in this state, a power which deprives a portion of its people of rights hitherto deemed to be of the utmost value, the right to select their own local officers, and to conduct their own local administration; and which is, in effect, subversive of the form of government framed under the constitution.... If the principle of the act affected property and private rights only, there are considerations which would constrain me to silence....
Limitation upon legislative power is one of the purposes to be effected by a written constitution. An absolute, unqualified grant of the power to make laws implies the power to do whatever the sovereign people themselves might do; and places the frame and structure of the government, as well as every other subject to be affected by law, at the disposal of the legislature.... The right of self-government in the local bodies, and the power of the people of those communities to select the local officers and conduct the local administration, a right of very ancient origin, and hitherto deemed to be of inestimable value, would utterly disappear, or exist only at the pleasure of the legislature....
...
The constitution of 1846 did not provide a government for a new people, for a community of men just collected together and without civil government. It was the amendment and reformation of a scheme already existing; the substantial and material institutions and forms of which had come down to us from our English ancestors. They embodied the reason, the wisdom and experience of many generations. They were consecrated by time, by habit, by long usage, by tradition and the noblest historical associations. It was the object of the organic instrument to preserve them, to perpetuate them, to improve and perfect them by the knowledge and the suggestions of later times; not to impair their strength or deform their fair proportions. When the organic instrument uses terms and expressions, it uses them in the sense in which such terms and expressions were understood at the time it was made. And when it speaks of institutions, of officers, of civil and territorial divisions, it speaks of things then existing, which were signified by the terms and forms of expression which it employs. It is a rule of interpretation, arising ex directo from the text of the constitution, that "it is to be construed as a frame or fundamental law of government established by the people according to their own free pleasure and sovereign will. The powers which are conferred, the restrictions which are imposed, the authorities which are exercised, the organization and distribution thereof, which are provided, are in each case for the same object, the common benefit of the governed, and not for the profit or dignity of the rulers." (Story on Const., 408.) When the present instrument was formed, the entire territory of the state was separated, and appropriated by its civil divisions, its counties, cities and towns. They were established by titles one, four and five of chapter two, part one, of the Revised Statutes; which statute is adopted by section seventeen of the first article of the constitution. Some of these civil divisions are referred to in many of its articles: in that in respect to the elective franchise; in its judicial and legislative articles; in that concerning corporations, and in that, also, which provides for the election and appointment of officers. These civil divisions are coeval with the government. The state has never existed a moment without them. All our thoughts and notions of civil government are inseparably associated with counties, cities and towns. They are permanent elements in the frame of government, and so treated in the instrument that creates it. Upon the plainest rules of interpretation they are to be regarded as institutions of the state, durable and indestructable by any power less than that which gave being to the organic law. They are subject to control and regulation by the legislature. It may enlarge or circumscribe their territorial limits, increase or diminish their numbers, separate them into parts, and annex some of the parts to parts of others; but they must still assume the form and be known and governed only as counties, cities or towns; because their distinctive character and attributes cannot be changed or destroyed without confounding the entire scheme of civil government provided in the instrument. The state at large is, and ever has been, an aggregate of these local bodies. They have habitually and uninterruptedly exercised many of the powers and functions of government.
These considerations lead me to the conclusion that it was designed to place these civil divisions and the powers of appointment, election and local administration which the people then exercised, beyond the reach of legislative abrogation and destruction. We learn from Blackstone, and the elementary writers, that the civil divisions of England, its counties, hundreds, tithings, or towns, date as far back as the times of the great Alfred. In all the changes of policy, of dynasty, of peace and internal war, and even of conquest, which that country has undergone since his day, these organizations have never been abated or abandoned. They are substantially at this time what they were before the Norman invasion. Wherever the Anglo-Saxon race have gone, wherever they have carried their language and laws, these communities, each with a local administration of its own selection, have gone with them. It is here they have acquired the habits of subordination and obedience to the laws, of patient endurance, resolute purpose, and the knowledge of civil government, which distinguish them from every other people. Here have been the seats of modern civilization, the nurseries of public spirit, and the centres of constitutional liberty. They are the opposites of those systems which collect all power at a common centre, to be wielded by a common will, and to effect a given purpose; which absorb all political authority, exercise all its functions, distribute all its patronage, repress the public activity stifle the public voice, and crush out the public liberty.
Id. at 556-58, 560-62.
Following the excerpted portions, Brown analyzed the constitutional clauses at issue and explained why the Court’s interpretation and application of them was wrong. In essence, he said that the clause concerning appointment to offices created after adoption of the constitution necessarily covered only statewide offices. Id. at 564-66. Local offices of any kind were necessarily covered by the clause guaranteeing election by the people of the localities affected, no matter what the locality was called nor when it was formed. Id. at 568.
To a large extent, this interpretive analysis was consistent with, but did not necessarily depend upon, the philosophies excerpted above, an observation that largely applies to the whole body of case law accepting the Cooley Doctrine. For this reason, proponents of Dillon’s Rule often assert that the Cooley Doctrine itself never really formed the basis for any decision, but rather the cases commenting favorably on the Doctrine really turned on the technicality of interpreting constitutional language. Nonetheless, Brown followed his interpretive analysis with more philosophy:
...The provisions of the metropolitan police bill imply much more than they express. They imply nothing less than the power of the legislature to unite the entire state into a single district for the purposes of police, with its chief or prefect at the seat of the central authority, and its subordinate chiefs and agents in every city, town and hamlet in the state. The appointment and removal of its numerous force, the dispensation and distribution of its immense patronage, would follow as incident to the main power. The principle of the act asserts the existence of this authority in the legislature without limitation or qualification. This is not all. The metropolitan act relates to police. The next act may relate to finance, to taxation and to revenue. The legislature may think it wise and expedient that the electors and authorities of the counties, cities, towns and villages shall no longer select their assessors, tax collectors and treasurers, as they have been accustomed to do. It may also think that boards of supervisors shall no longer sanction and apportion the assessments. This they must do, so long as the counties, cities and towns are held to be integral and indestructible institutions of the state, and the two first clauses of section two of article ten are of any force. But convert the entire state into a single district for the assessment and collection of taxes; create a board of finance commissioners, to be appointed by the governor and senate; vest in them the same power and authority, in respect to taxation and finance, that the metropolitan bill vests in its commissioners in respect to police; make the assessors, collectors and treasurers dependent upon the will of this board for their officers; collect into the state treasury the fifteen millions annually raised by taxation for local and general purposes, to be disbursed by the central government to its agents and officers; let the same scheme have effect as to the support and maintenance of the poor, the construction and repairs of bridges and highways, and the constitutional rights and privileges of the counties, cities and towns, as separate communities, will perish and become extinct in the presence of this modern rule of constitutional construction. I do not contemplate the possibility of such a result without apprehension.
... if the principle of the metropolitan police act is in conflict with the principle of the constitution; if it will impair rights and privileges there designed to be secured; if it will necessarily substitute the power of the legislature for that of the electors of the local municipal communities, and give to the former the power of appointment which the organic law reserves to the latter, then it involves a manifest contradiction, and cannot be upheld. The power of local appointment and administration cannot constitutionally exist in the electors and authorities of cities and towns, and in the central authority at the same time. The one power is, of necessity, in exclusion of the other. And this court must either construe the constitution so that local rights and privileges, expressly mentioned, and never until now questioned, shall remain to be exercised and enjoyed by the local communities, or sanction a construction which may, and indeed, can hardly fail, to exclude them altogether.
Id. at 571-72, 573-74.
People v. Hurlbut
The City of Detroit had a board of water commissioners and a board of sewer commissioners. In 1871, the Michigan state legislature passed a law replacing both boards with one board of public works and appointing the members of the new board. When the members of the old boards refused to leave office, the members of the new board filed a lawsuit to oust the old members. The old members argued that the act creating the new board was unconstitutional because, by appointing the members of the new board, the legislature violated Art. XV, section 14 of the Michigan Constitution, which said:
Judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed at such time and in such manner as the legislature shall direct.
People v. Hurlbut, 24 Mich. 44, * 9 (1871).
The Supreme Court decided that the permanent appointment of board members by the legislature was indeed unconstitutional. It saved the act, however, by treating the appointment as temporary, to have effect only until the new board be in place, at which point the city council would have power to appoint the permanent members. This resolution itself raises many important questions not answered adequately by any of the four opinions written by the members of the court. Instead, those opinions, especially that of Justice Cooley, laid out many of the principles of a right to local self-government.
Justice Christiancy said:
...it is further insisted by the counsel for the respondents, that the intention of this provision of the constitution was, and its fair and natural meaning is, that judicial officers of cities and villages shall be elected by the electors of such cities and villages at such time and in such manner as the legislature may direct, and that all other officers of such cities and villages shall be elected by the electors thereof, or appointed by such authorities thereof, at such time and in such manner as the legislature shall direct. And such, I confess, is the inference of intention which I draw from the provision and the subject matters to which it relates. It is, however, true that it is but an inference....
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But when we recur to the history of the country, and consider the nature of our institutions, and of the government provided for by this constitution, the vital importance which in all the states has so long been attached to local municipal governments by the people of such localities, and their rights of self-government, as well as the general sentiment of hostility to everything in the nature of control by a distant central power in the mere administration of such local affairs, and ask ourselves the question, whether it was probably the intention of the convention in framing, or the people in adopting, the constitution, to vest in the legislature the appointment of all local officers, or to authorize them to vest it elsewhere than in some of the authorities of such municipalities, and to be exercised without the consent, and even in defiance of the wishes of the proper officers who would be accountable rather to the central power than to the people over whose interests they are to preside--thus depriving the people of such localities of the most essential benefits of self-government enjoyed by other political divisions of the state-- when we take all these matters into consideration, the conclusion becomes very strong that nothing of this kind could have been intended by the provision. And this conviction becomes stronger when we consider the fact that this constitution went far in advance of the old one, in giving power to the people which had formerly been exercised by the executive, and in vesting, or authorizing the legislature to vest, in municipal organizations a further power of local legislation than had before been given to them. We cannot, therefore, suppose it was intended to deprive cities and villages of the like benefit of the principle of local self-government enjoyed by other political divisions of the state.
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While, therefore, I have no doubt of the power of the legislature to abolish or discontinue any of the separate boards previously existing in the city, and to consolidate all their powers and duties in this new board, which I think was the main purpose of this act, and to add all the new duties which have been imposed upon them, I concur in the opinions of the Chief Justice and my brother Cooley, that the legislature had no power to make the appointment of the members of that board, as permanent officers for the full term, or the specific portions of such terms provided by this act for the respective members of the board....
Id. at *12, *13, *14. Chief Justice Campbell said:
We must never forget, in studying [the Constitution’s] terms, that most of them had a settled meaning before its adoption. Instead of being the source of our laws and liberties, it is, in the main, no more than a recognition and re-enactment of an accepted system. The rights preserved are ancient rights, and the municipal bodies recognized in it, and required to be perpetuated, were already existing, with known elements and functions. They were not towns or counties or cities or villages, in the abstract--or municipalities which had lost all their old liberties by central usurpation--but American and Michigan municipalities of common-law origin, and having no less than common-law franchises. So far as any indication can be found, in the constitution of 1850, that they were to be changed in any substantial way, the change indicated is in the direction of increased freedom of local action, and a decrease in the power of the state to interfere with local management....
Incorporated cities and boroughs have always, both in England and in America, been self-governing communities within such scope of jurisdiction as their charters vest in the corporate body. According to the doctrine of the common law, a corporation aggregate for municipal purposes is nothing more nor less than "investing the people of the place with the local government thereof."--Salk. 193. In the absence of any provision in the charter creating a representative common council, the whole body of freemen make the common council, and act for the corporation at their meetings: Comyn Dig. "Franchises, " (F.) 25. It is agreed by historians that originally all boroughs acted in popular assembly, and that the select common council was an innovation, which may have been of convenience or by encroachment....
Our constitution cannot be understood or carried out at all, except on the theory of local self-government; and the intention to preserve it is quite apparent. In every case where provision is made by the constitution itself for local officers, they are selected by local action. All counties, towns, and school districts are made to depend upon it. All elections are required to be in local divisions where electors reside.... It is impossible to read that document without finding the plainest evidence that every part of the state is to be under some system of localized authority emanating from the people.
This is no mere political theory, but appears in the constitution as the foundation of all our polity. There is no middle ground. A city has no constitutional safeguards for its people, or it has the right to have all its officers appointed at home. Unless this power is exclusive, the state may manage all city affairs by its own functionaries....
Id. at *24, *25, *26.
Justice Graves wrote a short opinion with nothing worth noting for our immediate purposes. Justice Cooley, however, went on at length concerning local self-government:
And the question, broadly and nakedly stated, can be nothing short of this: Whether local self-government in this state is or is not a mere privilege, conceded by the legislature in its discretion, and which may be withdrawn at any time at pleasure? I state the question thus broadly because, notwithstanding the able arguments made in this case, and after mature deliberation, I can conceive of no argument in support of the legislative authority which will stop short of this plenary and sovereign right.
Now, it must be conceded that the judicial decisions and law writers generally assert that the state creates the municipal bodies, endows them with such of the functions of corporate life and entrusts them with such share in the local government, as to the legislative judgment shall seem best; that it controls and regulates their action while they exist, subjects them to such changes as public policy may dictate, and abolishes them at discretion; in short that the corporate entities are mere agencies which the state employs for the convenience of government, clothing them for the time being with a portion of its sovereignty, but recalling the whole or any part thereof whenever the necessity or usefulness of the delegation is no longer apparent. This I understand to be the accepted theory of state constitutional law as regards the municipal governments. We seldom have occasion to inquire whether this amplitude of legislative authority is or is not too strongly expressed, for the reason that its exercise is generally confined within such bounds as custom has pointed out, so that no question is made concerning it. But such maxims of government are very seldom true in any thing more than a general sense; they never are and never can be literally accepted in practice.
Our constitution assumes the existence of counties and townships, and evidently contemplates that the state shall continue to be subdivided as it has hitherto been; but it nowhere expressly provides that every portion of the state shall have county or township organizations.... If, therefore, no restraints are imposed upon legislative discretion beyond those specifically stated, the township and county government of any portion of the state might be abolished, and the people be subjected to the rule of commissions appointed at the capital. The people of such portion might thus be kept in a state of pupilage and dependence to any extent, and for any period of time the state might choose.
The doctrine that within any general grant of legislative power by the constitution there can be found authority thus to take from the people the management of their local concerns, and the choice, directly or indirectly, of their local officers, if practically asserted, would be somewhat startling to our people, and would be likely to lead hereafter to a more careful scrutiny of the charters of government framed by them, lest sometime, by an inadvertent use of words, they might be found to have conferred upon some agency of their own, the legal authority to take away their liberties altogether. If we look into the several state constitutions to see what verbal restrictions have heretofore been placed upon legislative authority in this regard, we shall find them very few and simple. We have taken great pains to surround the life, liberty, and property of the individual with guaranties, but we have not, as a general thing, guarded local government with similar protections. We must assume either an intention that the legislative control should be constant and absolute, or, on the other hand, that there are certain fundamental principles in our general framework of government, which are within the contemplation of the people when they agree upon the written charter, subject to which the delegations of authority to the several departments of government have been made....
The circumstances from which these implications arise are: First, that the constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon that system.
DeTocqueville... speaking of the New England township government, whose system we have followed in the main, says: "In this part of the union the impulsion of political activity was given in the townships; and it may almost be said that each of them originally formed an independent nation. When the kings of England asserted their supremacy, they were contented to assume the central power of the state. The townships of New England remained as they were before; and, although they are now subject to the state, they were at first scarcely dependent upon it. It is important to remember that they have not been invested with privileges, but that they seem on the contrary, to have surrendered a portion of their independence to the state. The townships are only subordinate to the states in those interests which I shall term social, as they are common to all the citizens. They are independent in all that concerns themselves; and among the inhabitants of New England, I believe that not a man is to be found who would acknowledge that the state has any right to interfere in their local interests:" Democracy in America, ubi supra. Now, if this author is here speaking of the theory of our institutions, he is in error. It is not the accepted theory that the states have received delegations of power from independent towns; but the theory is, on the other hand, that the state governments precede the local, create the latter at discretion, and endow them with corporate life. But, historically, it is as difficult to prove this theory as it would be to demonstrate that the origin of government is in compact, or that title to property comes from occupancy. The historical fact is, that local governments universally, in this country, were either simultaneous with, or preceded, the more central authority....
... the attempt of the last two Stuarts to overthrow their liberties, was defeated by means of the local organizations. The scheme tried first in England, to take away the corporate charters in order to make the corporators more dependent on the crown, and to restrain them from political action in opposition to the court party, found, in America, the colonial charters alone within the reach of arbitrary power; and though these were taken away or suspended, it was only with such protest and resistance as saved to the people the town governments. In Massachusetts, it was even insisted by the people's deputies that, to surrender local government was contrary to the sixth commandment, for, said they, "men may not destroy their political any more than their natural lives." So it is recorded they clung to "the civil liberties of New England" as "part of the inheritance of their fathers:" Palfrey's New England, Vol. 3, pp. 381-383; Bancroft's U. S., Vol. 2, pp. 125-127; Mass. Hist. Col., XXI, 74-81. The whole contest with Andros, as well as in New England, as in New York and New Jersey, was a struggle of the people in defense of the right of local government. ""Everywhere," says Dunlap, "the people struggled for their rights and deserved to be free:" Hist. of N. Y., Vol. 1, p. 133; and see Trumbull's Hist. of Conn., Vol. 1, ch. 15.
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Mr. Justice Story has well shown that constitutional freedom means something more than liberty permitted; it consists in the civil and political rights which are absolutely guarantied, assured and guarded; in one's liberties as a man and a citizen--his right to vote, his right to hold office, his right to worship God according to the dictates of his own conscience, his equality with all others who are his fellow-citizens; all these guarded and protected, and not held at the mercy and discretion of any one man or of any popular majority.--Story, Miscellaneous Writings, 620. If these are not now the absolute rights of the people of Michigan, they may be allowed more liberty of action and more privileges, but they are little nearer to constitutional freedom than Europe was when an imperial city sent out consuls to govern it. The men who framed our institutions have not so understood the facts. With them it has been an axiom, that our system was one of checks and balances; that each department of the government was a check upon the others, and each grade of government upon the rest; and they have never questioned or doubted that the corporators in each municipality were exercising their franchises under the protection of certain fundamental principles which no power in the state could override or disregard. The state may mould local institutions according to its views of policy or expediency; but local government is matter of absolute right; and the state cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all.
What I say here is with the utmost rsepect [sic] and deference to the legislative department; even though the task I am called upon to perform is to give reasons why a blow aimed at the foundation of our structure of liberty should be warded off. Nevertheless, when the state reaches out and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exercised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free government, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the punishment of kings and the overthrow of dynasties, nothing was settled and nothing established.
But I think that, so far as is important to a decision of the case before us, there is an express recognition of the right of local authority by the constitution. That instrument provides (Art. XV, § 14) that "judicial officers of cities and villages shall be elected; and all other officers shall be elected or appointed. at such time and in such manner as the legislature may direct." It is conceded that all elections must, under this section, be by the electors of the municipality. But it is to be observed that there is no express declaration to that effect to be found in the constitution; and it may well be asked what there is to localize the elections any more than the appointments. The answer must be, that in examining the whole instrument a general intent is found pervading it, which clearly indicates that these elections are to be by the local voters, and not by the legislature, or by the people of a larger territory than that immediately concerned....
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So far, then, as the act in question undertakes to fill the new offices with permanent appointees, it cannot be sustained, either on general principles or on the words of the constitution. It may, nevertheless, not be wholly void. I have no doubt it was entirely competent for the legislature to abolish the old boards and provide for a new one to take the place of all. That would be but the ordinary exercise of legislative supervision and control in matters of municipal regulation. I think, also, that the legislature might make provisional appointments to put the new system in operation. The right to do this appears to me to be incident to the right to confer and recall corporate power, and rests upon the same ground as the right to provide agencies for the organization of the municipal corporation in the first place, for the apportionment of its property and debts if its territory should be divided and organized into two, or for the winding up of its concerns if the charter should be taken away. There is no doubt of the right of the state to do any of these things; not by virtue of any general authority to take to itself the management of the local concerns, but because the inauguration and modification of local government can only be provided for without confusion and injustice, by the aid of the guiding and assisting hand of the authority that creates and modifies. The right in the state is a right, not to run and operate the machinery of local government, but to provide for and put it in motion. It corresponds to the authority which constitutional conventions sometimes find it needful to exercise, when they prescribe the agencies by means of which the new constitution they adopt is to be made to displace the old.
Id. at *29, *30, *31, *32, *34, *35.
I have quoted extensively from Cooley, for his philosophy has no simple foundation, and I think we must read everything he said before we decide whether to champion “the Cooley Doctrine” or rather to champion a theory of local sovereignty that borrows from Cooley without naming it after him. For example, if he rejects the idea that self-government is a mere privilege, why does he accept the notion that the state is the “hand of the authority that creates and modifies”? Why does he have no doubt that “it was entirely competent for the legislature to abolish the old boards and provide for the new one to take the place of all”? And why, after pages of juicy history and theory, does he seem to collapse into the conclusion that the instant case is answered by an express constitutional provision, as if all he has said previously is impertinent to deciding the issue?
With that said, I turn to the main cases from other jurisdictions that either grew out of, or at least reflected, principles from the Cooley Doctrine.
People v. Albertson
In 1870, the New York legislature passed a law to replace the police department of the city of Troy with a police department covering Troy plus three small adjoining parcels of land containing, in total, one foundry and ninety dwelling units. Under the act, the legislature was to fill the offices of the new department by appointment. Recall from Draper that under the New York Constitution, the people have the right to elect officers of counties, cities, towns, and villages, but not, according to Draper, to elect officers of newly created municipal bodies.
In People v. Albertson, 55 N.Y. 50 (1873), the Court of Appeals had to decide whether the statute was unconstitutional. (The facts of the case are not germane to the decision; it was a suit to compel payment of a debt incurred by the city police department in order to bring the constitutionality of the act before the high court as expeditiously as possible.) The Court of Appeals found the Act unconstitutional, in essence reasoning that it was an effort by the legislature to thwart the elective franchise of the people of Troy by creating a new police department to cover additional lands for which a police department was truly unnecessary. Id. at 61-63.
In response to the assertion that the result in Draper commanded a favorable ruling on the statute, the Court said:
To my mind the dissenting opinion of Judge BROWN, concurred in by Judge COMSTOCK, presents unanswerable arguments why the [Draper] decision should have been different. The Constitution, in providing for a State government in all its parts and for the entire territory, distributing its powers among the various departments and organizing and authorizing the creation and organization of local governments for the different parts of the State under the general division of counties, cities, villages and towns, and in such forms that every power of government necessary to be delegated to any locality may be delegated to and conferred upon one or other of the municipal governments thus authorized and recognized, would seem to exclude the idea of the creation of any new or other division for the exercise of political power, or any other or different local government, and by necessary implication prohibit it. People v. Draper fully recognizes the fact that the general political division of the State cannot be disturbed. The learned judge says: "The counties and cities must not only be preserved, but the legislature must do nothing respecting them which will render them less suitable for the purposes for which they are recognized and employed by the Constitution." While it is difficult to see precisely how a new local political division can be organized, embracing the whole or a part of different cities and counties, to which a part of the power, and especially the police power, conferred upon and exercised by those organizations is transferred, without impairing their usefulness and making them less suitable for all the purposes for which they are recognized and employed, if the judge had added that neither should the legislature do anything to deprive the counties and cities, and their electors, of the right of local self-government and the substantial rights and franchises guaranteed by the Constitution, it would have been less objectionable....
Id. at 64-65. Once again, then, we have a jurist referring to a “right of local self-government” without taking the time to explore what that right is. Not that it matters for our purposes, but nowhere did the Court cite Hurlbut in the course of its opinion.
People v. Lynch
Upon petition of landowners fronting Tenth Street between J and N Streets, the city of Sacramento improved the street and assessed the landowners benefited by the improvements. The assessment, however, failed to include a portion of the frontage that benefited from the improvements. This defect was in contravention of the procedure in the city’s charter for making assessments. The legislature of California attempted to correct the defect by passing a statute ratifying the assessment. When one of the landowners refused to pay the assessment, the Supreme Court of California was asked to rule on the validity of the entire process.
In People v. Lynch, 51 Cal. 15 (1875), the Supreme Court ruled that the assessment was void for inequality, and that the state legislature lacked power to ratify the assessment. The opinion by Justice McKinstry is interesting because it draws from the Tenth Amendment to the U.S. Constitution in analyzing the power of state governments over local governments and the people:
Under our Constitution the Senate and Assembly can perform any legislative act not prohibited, not because there is any magic in these names which absorbs all power not specifically conferred on the other departments of government, but because the Constitution places the legislative power in the Senate and Assembly in general terms. By the tenth amendment of the Constitution of the United States, it is provided: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Government of the United States can exercise only such powers as are expressly granted to it, and such as are necessarily implied from those granted. It follows from this, that the people of the States respectively retain such powers as have neither been granted, expressly or by implication, to the Government of the United States, nor conferred on the State governments.
It is by no means a corollary from the foregoing proposition, however, that one department of the State government may employ all the powers not granted to the Federal government. It is undoubtedly true, in a certain sense, that the State Constitution is to be construed as a limitation upon and not as a grant of legislative power; that is to say, the general power of making laws having been placed by the people in the Legislature, the Legislature will be held to have power to make any law which it is not prohibited from making by the Constitution of the State or of the United States. In this respect the rule of interpretation is the reverse of that applicable to acts of Congress under the Constitution of the United States. But the "sovereignty of the people" is more than a meaningless phrase.
The people of California created the State government, and it was for this people to place (in the State Constitution) as many checks upon, and conditions and limitations of the general grant of legislative, executive or judicial power as they deemed proper or expedient. "The people of the State alone possess and can exercise supreme and absolute authority; the Legislature, and the other departments of government, are but the depositaries of delegated powers more or less limited"--according to the terms of the Constitution. (1 Sharswood's Black. Com., ch. 2, note.)
...
Bearing in mind the principles of construction above mentioned, I proceed to inquire, What did the framers of our Constitution mean, when, after declaring in general terms that the law-making power should be vested in the Senate and Assembly, and requiring the establishment of a system of county and town governments, they further provided:
"It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrain their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations." (Art. IV, Sec. 37.)
"Each county, town, city and incorporated village shall make provision for the support of its own officers, subject to such restrictions and regulations as the Legislature may prescribe." (Art. XI, Sec. 9.)
Had the Constitution of California been silent in respect to cities and incorporated villages, the Legislature would have possessed the power to create them; but it would perhaps have been more difficult to say whether the people could not have been deprived of these local governments. So impressed, however, were the framers of that instrument with the propriety and necessity of such legislation, that they inserted the sections above quoted. What did they have in their minds when they spoke of cities and villages? It needed but to recall their origin and history to impress the Constitutional Convention with a conviction that municipalities are invaluable to a great and free people. The enlightened genius of the Roman civilization was planted and fostered by the establishment of colonies with urban privileges. In the Dark Ages the chartered towns in Europe served to curb the turbulence of the more potent of the crown vassals, and to erect barriers for the protection of personal rights against the rude force of the feudal barons. It often happened that from such centres of self-government the spirit of freedom was extended and expanded, and it may safely be said of the English boroughs--for example--that they were largely instrumental in developing the constitution of government which made that people jealous of the liberty they possessed, and capable of receiving still greater accessions of the same blessing. In our own country the existence of local political corporations began with the earlier settlement of the colonies. The benefits of such subordinate communities as schools of preparation for the discharge by the citizen of the duties he owes to his country at large, have been highly estimated by philosophical writers who have given their attention to the subject,--the distinguished author of La Democratie en Amerique considering the New England "towns"--which are like cities in so far as they possess certain powers of government--as the very life of American liberty. The advantage of having the home work done at home commends itself to every mind. The extreme inconvenience, to say the least, of an interference on the part of the State, by special legislation, with the innumerable details of administration in every locality, especially in the more densely populated portions of our territory, is manifest to all practical men. If there is danger in a city that the indifference of the more honest and intelligent may suffer the corrupt to seize and abuse the local authority, this risk equally exists with reference to the State or National Government. To a certain extent the danger that people may neglect their public duties exists everywhere, and can only be guarded against by greater diligence; it is an incident to our form of government--the price which we pay for our inestimable freedom. Assuming that a people of a municipality are fit to govern themselves, no one can hesitate to believe that any possible contingent evils of municipal government are more than compensated by the direct representation in the local councils of those peculiarly, and often exclusively, interested in the conduct of the municipal affairs. It was, amongst other things, to do away with frequent interference by the central power with matters of purely local concern, that cities and incorporated villages had been created in every State of the Union.
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... the very idea of an American city involves the notion of a local government; of local officers selected by the inhabitants, and reflecting the wants and wishes of the inhabitants; and that these officers should exercise their own judgment in respect to the internal affairs committed to their charge by the law of their creation. The Legislature can alter or repeal a city charter, but it does not follow that the Legislature can deprive the aldermen, councilmen, supervisors or trustees of a city of all discretion in the discharge of their functions as such.
Id. at *27-28, *29-31, 33.
State v. Denny
In State v. Denny, 21 N.E. 274 (Ind. 1889), the Supreme Court of Indiana delivered one of the strongest decisions in favor of the right to local self-government, for it grounded the right in the truism that all power is inherent in the people, who only delegate to the state those powers contained in the constitution. The case involved a state act that sought to replace fire and police boards in two cities with boards initially appointed by the general assembly and ultimately to be appointed by the mayors. Justice Olds wrote:
It is contended by counsel for appellants that by the constitution of the state all power is vested in the legislative department of the government, except such as is expressly granted to the executive, the judiciary, and retained by the people in the constitution itself. We are not in harmony with counsel's theory of our state government, but we state it this way: At the adoption of the state constitution all power was vested in the people of the state. The people still retain all power except such as they expressly delegated to the several departments of the state government by the adoption of the constitution; that the legislative, executive, and judiciary departments of the state have only such powers as are granted to them by the constitution. In the first section and first article of the constitution it is declared "that all power is inherent in the people."... In construing and giving an interpretation to the constitution, we must take into consideration the situation as it existed at the time of its adoption, the fact expressed in the instrument that all power is inherent in the people, the rights and powers vested in and then exercised by the people, the existence of cities and towns, and the right of local self-government exercised by them, the laws in force, and form of government existing at the time of its adoption. One of the fundamental principles of municipal corporations is the right of local self-government, including the right to choose local officers to administer the affairs of the municipality. 1 Dill. Mun. Corp. (3d Ed.) § 11, states the law as follows: "To civil territorial divisions erected into corporations with defined powers of local administration and the extension of the right to vote for officers, to all who are to be affected by their action, are due that familiarity with public affairs and that love of liberty and regard for private rights and property which are characteristic of the best government in Europe, Great Britain, and the best in America, the United States." "See. 183. The fundamental idea of a municipal corporation proper, both in England and in this country, is to invest compact or dense populations with the power of local self-government."
Id. at 277. Justice Old next quoted from Justice Brown’s dissenting opinion in Draper on the role local government plays in resisting the centralization of power, and from the New York opinion in Albertson on the necessity of the right to local self-government. Then he continued:
We might quote from numerous other authorities to the same effect as the above, but we have quoted sufficient to show that the right of local self-government, including the right of the people of a municipality to select their own officers, was a sacred fundamental principle and idea of municipal corporations, well founded, sacredly guarded, and long enjoyed by the people of the state at the time of the adoption of the constitution. As we interpret the theory of our state government, this right of local self-government vested in, exercised, and enjoyed by the people of the municipalities of the state at the time of the adoption of the constitution yet remains in them, unless expressly yielded up and granted to one of the branches of the state government by the constitution;... We will therefore look to the constitution to determine what power is granted to that branch of the state government. Section 1, art. 3, is as follows: "The powers of the government are divided into three separate departments,-the legislative, the executive, including the administrative, and the judicial;... How were these sections understood by the framers of the constitution? Mr. Biddle, a member of that body, said: “...What is the legislative power? It is that power by and through which a state makes its laws. In a free country like our own law is but the formal expression of the opinions, wants, desires, and wishes of the people. The people send up their representatives to make their laws in accordance with the will of their constituency. The legislature is the mouth-piece of the state, by which it expresses its voice....”
... This interpretation of legislative power by Judge Biddle in the constitutional convention was not challenged or denied. It is manifest that the framers of the constitution used, and the people adopting it understood, the words "the legislative authority of the state shall be vested in the general assembly" with a view of vesting in the general assembly only the right to make laws, and did not by the use of these words intend to surrender the right of local self- government and the right of choosing their own local officers and rulers, or to delegate such power to the general assembly.
Id. at 277-78. Justice Olds next analyzed all of the clauses in the state constitution mentioning towns or other municipalities, such as the prohibition on local or special laws vacating roadways, and the grant of power to legislate on the duties, impeachment, and filling of vacancies for municipal officers. In none of these did Justice Olds find a delegation of the power of local self-government to the state. Id. at 279-80. Then he continued:
...it is not earnestly contended by counsel that any such power is by express terms granted; but it is contended, as stated in the outset, that by the creation of the departments of government by the constitution all power vested in the legislature that was not by express terms reserved to the people or granted to the executive or judicial departments, and that the burden rests on him who asserts that the law is unconstitutional to point out the provision of the constitution that forbids its passage. Upon the question as to the constitutionality of statutes Judge Cooley says, (Cooley, Const. Lim. 5th Ed. 208:) "It does not follow, however, that in every case the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed. Prohibitions are only important where they are in the nature of exceptions to a general grant of power; and if the authority to do an act has not been granted by the sovereign to its representative, it cannot be necessary to prohibit its being done."
Id. at 280. Justice Olds followed the quote from Cooley’s treatise with a quote from Cooley’s opinion in Hurlbut. Then he continued:
... The conclusion we unhesitatingly reach is that the right of local self-government in towns and cities of this state is vested in the people of the respective municipalities, and that the general assembly has no right to appoint the officers to manage and administer municipal affairs; that the right of the general assembly ends with the enactment of laws prescribing the manner of selection and the duties of the officers....
... We certainly think it cannot be contended that, if the individual should provide himself with fire-engines and appliances for the extinguishment of fires and suppression of conflagrations, and erect buildings for storing and keeping such appliances for the protection of his own property, the state, by its general assembly, could appoint an agent to protect his property from destruction by fire, and compel him to turn his appliances thus provided over to such agent, and require the individual to pay the expense of the service. What greater reason exists for declaring that the people of a municipality, who have collectively supplied themselves with such means of extinguishing fire and preventing conflagrations at a large expense, shall turn such property over to officers selected by the general assembly, and pay the expense of keeping up a fire department, in the selection of which they are not allowed to participate?...
Judge Cooley, in his work on Constitutional Limitation, (5th Ed. 47,) says: "In considering state constitutions we must not commit the mistake of supposing that because individual rights are guarded and protected by them they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. What is a constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause but consequence of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought." Again, he says on the same page: "A written constitution is, in every instance, a limitation upon the powers of government in the hands of agents, for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent and incapable of definition." We hold that the right to provide and maintain a fire department in a town or city is one of the rights which are vested in the people of municipalities, and to be exercised by them, and is not subject to legislative interference, except in so far as they may prescribe rules to aid the people of the municipality in the exercise of such right; that such right is an element of local self-government, which was vested in the people of the municipalities at the time of the adoption of the constitution, and was not parted with by it; that so much of the statute under consideration as relates to the management and control of the fire departments of cities is unconstitutional and void.
Id. at 281, 282, 283.
State v. Moores
This case tested the constitutionality of a statute empowering the governor to appoint four out of five members of a metropolitan board of fire and police commissioners. The case does not contain much original thinking, but rather heavily surveys cases concerning the right to local self-government. The opinion starts from the premise that state constitutions delegate all power to the state government, but then relies on the notion that there are explicit and implicit restrictions on state power in order to approve the notion of a right to local self-government. Justices Norval and Ragan wrote:
The validity of the law is assailed on the ground that it is violative of the inherent right of local self-government, by depriving the people of the cities of the metropolitan class from choosing their own officers. There is no express provision in the constitution of this state which gives municipal corporations the power to select their officers, or to manage their own affairs; nor is there any clause to be found in that instrument which in express terms inhibits the legislature from conferring upon the governor the power to appoint municipal officers to manage and control purely local affairs. If this act is invalid on the ground that the appointing power was placed in the hands of the governor, it is because the law is repugnant to some rights retained by the people at the time of the adoption of the organic law. It is true, the state constitution is not a grant of legislative power, and the lawmaking body may legislate upon any subject not inhibited by the fundamental law; and it has been so held in Magneau v. City of Fremont, 30 Neb. 843, 47 N. W. 280, and numerous other decisions of this court. But it by no means follows from this that the legislature is free to pass laws upon any subject, unless in express terms prohibited by the constitution. The inhibition on the power of the legislature may be by implication as well as by expression. Laws may be, and have been, declared invalid, although not repugnant to any express restriction contained in fundamental law.
...
In People v. Morris, 13 Wend. 325, Justice Nelson said: "The only limitation to the powers of the legislative department that can exist must be found either in the constitution of the United States or of this state, or in the natural and inherent rights of the citizens, which they cannot part with, or be deprived of by the society to which they belong. The latter qualification is undefined, and perhaps undefinable, by any general code having a just regard to the security of these rights. Some of the constitutions of the states contain a declaration of these powers, and some also declare (and all are, no doubt, to be understood) that the enumeration shall not be construed as denying or impairing others retained by the people. We have no bill of rights, though many of the principles usually found in such instruments are incorporated in the provisions of the constitution. The enumeration was designedly omitted, because unnecessary and tending to weaken, if not endanger, those unnoticed. The limitation or qualification in this respect must depend upon the enlightened wisdom and discretion of the legislature, and the decisions of the judicial department."
In Rathbone v. Wirth, 6 App. Div. 277, 40 N. Y. Supp. 535, Judge Herrick, speaking of the legislature, observed: “...The supreme power of the people does not arise from the constitution, or exist by virtue of it. It existed prior to it. It makes and unmakes constitutions, but is not made by them. Consequently we are not to look into the constitution for any grant of power to the people, or any definition of their powers. They possess all that they have not surrendered by the constitution....”...
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The first article of our state constitution expressly enumerates certain rights which the people have reserved to themselves, and manifestly any law passed in violation of such reserved rights would be declared by the courts unconstitutional. It cannot be successfully asserted that the only rights reserved to the people are those enumerated in said article of the constitution, since section 26 thereof declares, "This enumeration of rights shall not be construed to impair or deny others, retained by the people, and all powers not herein delegated, remain with the people." This language removes all doubt that powers other than those specified in the bill of rights were retained by the people, and any statute enacted in violation of such rights is as clearly invalid as though the same had been expressly forbidden by the fundamental law.... The important question, therefore, is whether the right of the people of municipal corporations to choose their own local officers is one of the powers retained by the people, which the legislature cannot take away. An examination of the various provisions of our constitution fails to show that the right is not conferred upon the legislature, or any other department of state government, in direct, explicit, and plain language, or impliedly, to deprive municipal corporations of the power to govern themselves by officers of their own selection. On the contrary, it is very evident that the constitution was framed upon the theory of local self-government,--the right of the people to determine for themselves who shall be their officers. It has provided that the state and county officers shall be chosen by the people, and the legislation in this state prior to the adoption of the constitution invariably recognized the principle of local self-government. The several charters of cities and towns existing when the present constitution was adopted provided for the selection of municipal officers by the citizens of the municipalities, and it was in 1887 when the legislature of this state first attempted to deprive municipal corporations of the power to choose their local officers. The right of local self-government is not forbidden by the constitution, while the principle is fully recognized in that instrument, and its framers must have contemplated, that the right, then existing, of municipal corporations to choose their local officers to administer their local affairs, should continue as in the past. This right still exists, and the legislature is powerless to abridge the same or take it away.
In Rathbone v. Wirth, 6 App. Div. 277, 40 N. Y. Supp. 535, we find this discussion of the right of local self-government: "Under our form of government that supreme power is vested in and exercised by the majority, and for all practical purposes the majority are the people. The principle that the majority shall govern lies at the very basis of our government. Among the rights of the majority, as a part of its sovereign power, is the right to select officers, either directly, by election, or indirectly, by authorities or officers whom they have chosen by election. * * * This power of the majority to govern, the legislature cannot take from them. The legislature exercises the legislative power of the people. It is their agent for that purpose. But it cannot limit or surrender any of the power or authority of its principals. But it may be said the legislature is composed of the representatives of the people, and that, therefore, their acts are presumed to be the acts of a majority of the people, and that, while this act deprives the majority of the people in one locality of their power, still it is in accordance with the will of the majority of the people of the whole state, and that thereby the principle of majority government is recognized. There would be force in that suggestion if it was not for another principle of our government recognized by our constitution, and if the people had not by the constitution limited their power to override the will of a majority in any locality. The principle I refer to is the principle of local self-government. * * * Local self-government is the school which fits people for self-government. Local self-government is the result, and also the most efficient preserver, of civil liberty. * * * The principle is one that runs through our entire system of government, from the road and school district up to the federal government. * * * Without further continuing this branch of the discussion, suffice it to say that in my opinion the purpose of the bill is obnoxious to the constitution, as an infringement upon the right of the majority to select their own officers, either immediately, by election, or by their accredited agents, and as destructive of the principle of local self-government."
If the legislature may authorize the governor to appoint a fire and police commission for cities of the metropolitan class, then there is nothing to prevent lawmakers from taking from every city and town in the state the power to choose all of the local officers thereof, except police judges, which position is made elective by the constitution, and empower the governor to appoint all municipal officers except the ones just named. The mind revolts when the doctrine of the Seavey Case is carried to its legitimate extent. The denial to the people of the right to govern themselves is undemocratic, and, if such doctrine is enforced, we could no longer boast of "a government of the people, for the people, and by the people."
State v. Moores, 76 N.W. 175, 177, 178, 179-80, 188 (Neb. 1898).
Lexington v. Thompson
The next case I will summarize is Lexington v. Thompson, 68 S.W. 477 (Kent. 1902), in which a fireman sued Lexington to recover to difference between the salary for firemen mandated by the state legislature in 1900 and the salary Lexington had been paying him. Lexington demurred, asking the Court to dismiss the complaint on the ground that the right of local self-government prevented the state legislature from fixing the salaries of municipal firemen.
The Court of Appeals ruled in Lexington’s favor. The opinion is noteworthy for a line of reasoning we will wish to avoid, for the Court tries to draw a distinction between the public rights of a municipal corporation, and the private rights, akin to those of an individual or business corporation. The right to local self-government was deemed to be of the latter character, a theory buttressed in part with quotations from Cooley, which punctuates the notion that we do not want to be heard saying that Cooley had crafted a theory of the right to local self-government with which we are in full agreement:
Whenever a jurist inquires whether a state statute is consistent with the state constitution, he looks into that constitution, not for a grant, but only for some limitation of the powers inherent in the people's legislative organ so far as not forbidden by their organic law." These general principles may be freely conceded. It is also urged that, as said by the supreme court in U. S. v. Baltimore & O. R. Co., 17 Wall. 329, 21 L. Ed. 597, a municipal corporation is not only a representative of the state, "but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the state. The state may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the state at large. It may enlarge or contract its powers or destroy its existence." These general statements of the legislative power over municipal affairs are always to be read in the light of the state of fact to which they are applied by the courts who give them utterance. Unless so read, they are apt, at times, to be misleading. In fact, the very authorities which thus state the general rule state also the limitations to be placed upon it.... So, Von Holst (Const. Law, 271), after stating the general rule that the legislative power of the state legislatures is unlimited so far as no limits are set to it by the federal or state constitution, proceeds: "This does not mean, however, that these restrictions must always be expressed in explicit words. As it is generally admitted that the factors of the federal government have 'certain implied powers,' so it has never been disputed that the state legislatures are subject to 'implied restrictions'; that is, restrictions which must b