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By Gene Owens
Alabama’s constitution keeps its cities and counties tied to Mother Montgomery’s apron strings.
A state that long has stood as a bastion of state’s rights has steadfastly declined to extend the principle down to the local level.
Alabama is one of only two states that deny home rule to their cities and towns, according to the U.S. Advisory Commission on Intergovernmental Relations. It is one of 13 that do not free counties to make decisions at the local level.
In Alabama, local officials are often uncertain about their authority to address local problems, because the authority, if it exists, is conferred through a tangle of state statutes.
Among states of substantial size, Alabama is alone in keeping its city halls on a tether that leads to the capital.
The only other state that denies home rule to its municipalities is Vermont, where the state government itself is little more than a local government. Vermont has fewer people than the Mobile metropolitan area and the four Alabama counties adjoining it.
Some states have constitutions that guarantee their localities the right to make decisions on strictly local matters. Other states have granted the authority through laws passed by their legislatures.
The constitutional provision is the securest guarantee. What a legislature can give by statute, the same legislature can take away. Constitutional provisions are more permanent.
Where it started
What gives the Alabama Legislature the right to decide what’s best for localities?
The concept is rooted in the federal system set up when the 13 original states drafted the Constitution of the United States. These states emerged from the American Revolution as sovereign, independent countries. They delegated some of their sovereignty to the federal government, but they surrendered none of it to the county and city governments within their borders. These localities became "creatures of the state." As such, they could exercise only those powers that were conferred upon them by state government.
The concept was articulated in 1868 by Judge John Dillon of the Iowa Supreme Court. It is commonly referred to as Dillon’s Rule: Localities can exercise no more governing authority than state government permits.
Four years after Dillon stated his rule, Judge Thomas Cooley of the Michigan Supreme Court articulated what became known as the Cooley Doctrine: "Local government is a matter of absolute right; and the state cannot take it away."
Most states follow Dillon’s Rule instead of the Cooley Doctrine. Legislatures hesitate to concede authority to any other entity as an "absolute right." But Dillon’s rule is followed to different degrees in different states. At one extreme, localities are forbidden to do anything unless the legislature has first authorized them to do it. This is generally the situation in Alabama.
At the other extreme, localities can do anything that does not violate the state constitution or that has not been forbidden by legislative action.
The Georgia constitution spells out its home-rule provision for counties in this way: "The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this constitution or any local law applicable thereto."
Georgia localities therefore can exercise powers that are not explicitly granted by the legislature, but the legislature can remove specific powers if it chooses.
A provision in Pennsylvania’s constitution grants localities the authority "to exercise any power or perform any function not denied by this Constitution, by its home rule charter, or by the General Assembly at any time."
Such language leaves the legislature free to place certain restraints on local autonomy. But when a local government perceives a problem, it doesn’t have to look for authority to act. It can take any action that has not been forbidden by the state constitution, the legislature or the charter.
Colorado’s constitution allows cities and counties to choose home rule. If a locality does so, the legislature has only limited authority to override the locality. The constitution provides that local ordinances take precedence over state laws on matters of strictly local import.
The Colorado Supreme Court ruled, for instance, that Denver could require employees of its local government to live within the city and county, regardless of what the state law said.
Florida’s localities have home rule in most matters, with one major exception: They do not have financial home rule.
"Don’t give Alabama cities home rule and not give them the authority to tax," said City Manager George Hanbury of Fort Lauderdale. "In Florida, you can’t do a thing on the revenue side without the legislature’s approval." The power to pass ordinances is meaningless, he says, without the power to provide the means of financing them.
Which may go a long way in explaining why Alabamians don’t cut Mother Montgomery’s apron strings.
Limiting authority
"I don’t want but very limited taxing authority," Baldwin County Commissioner Michael Allegri said at a fall workshop for commissioners at Auburn University.
Many of his colleagues across the state agree. Obtaining the power to tax also means taking the heat from the public when it comes to setting the tax rate.
Many municipal officials don’t want county governments to have the power either.
"I’d be careful not to give them everything they desired," said Anniston City Manager Tom Wright. "Be careful that you don’t give a county authority to tax on top of a city."
"I personally am not particularly a fan of home rule," said Saraland Mayor Frank Pridgen. "It sets up another body to start making rules and regulations against the general public."
States that grant home rule usually do so through municipal or county charters. The charter is the locality’s own constitution.
In some states, the charter must be approved by the legislature. In others, localities are free to draft and amend their charters. The charter can provide for amendment only by popular vote.
The charter specifies the form of government the locality will have and the powers it can exercise.
Without charter government, the structure and power of local governments must be spelled out through the state constitution or through laws passed by the legislature.
In Alabama, this means that localities are governed through a hodgepodge of provisions. Some are in the constitution, some are a matter of state law and some are a matter of local ordinance. But who’s to keep track?
Baldwin County Administrator Jim Zumwalt doesn’t know whether his county can levy a personalproperty tax on pleasure boats. If he were in a home-rule state, he could find out easily enough by consulting his county charter. In Alabama, he is going to have to plow through a law library or pay a lawyer to do it.
Even if counties are uncertain of their powers, they know they are helpless in the face of a variety of local problems.
Mike Gillespie, chairman of the Madison County Commission, cites these examples:
• When a company proposed a rock quarry near a neighborhood in Madison County, the residents protested that the noise would shatter the tranquility and depress property values. Madison County has no zoning powers, so the residents needed an act of the Legislature. But the next legislative session was months away. The only way out for the residents was annexation into Huntsville, which could keep the quarry away by exercising the zoning powers that Alabama grants it cities.
• Desperate to stop the proliferation of topless nightclubs, Madison County thought it had the solution when the Legislature passed a special act regulating the establishments in the county and prescribing criminal penalties for violators. It now appears that the law will be thrown out. The state constitution says you can’t prescribe criminal penalties for conduct in one county that isn’t outlawed in all other counties.
In Madison County, apparently, even the G strings are held up by Mother Montgomery’s apron strings.
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Reprinted with Permission from the Mobile Register. |