XIX
OF THE GOVERNMENTAL FUNCTION, INTERNAL IMPROVEMENTS, AND THE PUBLIC DOMAIN
The matter of most interest in modern American legislation for municipal government is probably the home-rule principle. That is, statutes permitting cities or towns, or even villages, to draw and adopt their own charters and govern themselves in their own way. The charter thus adopted may, of course, be the old-fashioned government of mayor, aldermen, common council, etc., or it may be the newly invented government by commission, based substantially on the theory of permanent officials chosen at infrequent intervals, and officers, in so far as possible, appointed, and not elected. The one makes for efficiency, the other for democracy. At present the American people seem to have a craze for efficiency, even at the expense of representative government, and of principles hitherto thought constitutional. It is impossible to tell how long it will last. It may carry us into the extreme of personal government, national, State, and local, or history may repeat itself and we may return to the principle of frequent elections and direct responsibility to the voters under the arbitrament of the courts of law. We may go on to special courts (declared odious in the Great Case of Monopolies) and administrative law, or be content with improved understanding of the law we already have.
These matters are too large for us; coming down to more concrete facts, we find that the general tendencies of legislation upon State, and particularly municipal, government are to somewhat enlarge its functions, but considerably to limit its expenditure. Greater distrust is shown in legislatures, municipal as well as State, and a greater trust and power reposed in individual heads, and a much greater power intrusted to more or less permanent boards and commissions, usually not elective, and often clothed with vast powers not expressly submitted to the scrutiny of courts of law. The purposes of education are somewhat extended, generally in the direction of better education, more technical and practical and less "classical."[1] Charity includes a largely increased recreation for the people, State provision for many more classes of the invalid and incompetent, specialized homes for various sorts of infirm or inebriate, and some little charity in the guise of bounties of seed, etc., to needy farmers, which latter, however, have usually been held unconstitutional.
[Footnote 1: Though a lady orator in Boston this year complains to an audience of labor unionists that trades schools and industrial education tend to "peasantize" the poor. Peasanthood was the condition of the agricultural laborer; it was skilled labor that made him free—neither peasant, peon, nor villein. See p. 20, above.]
Thus, in 1890 North Dakota limits the debt of cities to five per cent.; but permits county loans to raise seed grain for needy farmers; other States extend the principle of socialism to electric lighting, gas, natural gas, water, sewers, agricultural drainage, irrigation, turnpikes, and cemeteries. That is to say, all may be built, maintained, or run at the municipal expense, or under municipal control. In 1895 Wisconsin, North Carolina, Texas, and other States carefully limit State, county, town, or city taxes to prescribed rates. Texas requires a two-thirds vote on the issue of municipal bonds, and fixes the debt limit at five per cent. In 1896 Missouri rejects a constitutional amendment permitting municipal gas and water socialism on majority vote of the voters. The same year the failure of such enterprises begins to show itself in a statute of Iowa authorizing municipal plants to be sold upon a popular vote. The socialist town of Hamilton, Ohio, actually went into the hands of a receiver; a similar result followed the English experiments in the towns of Poplar and West Ham.
In 1897 many other States adopted a limit for State, city, county, or town taxes. Indeed, it may be stated generally, without going into further details, that such laws are practically universal throughout the South and West, and prevail to some extent as to cities only in New England, and the same may be said of laws fixing a debt limit which States, counties, cities, or towns may not exceed. Such laws are very generally evaded, as by leasing desired improvements of a private company, or (in Indiana at least) the overlapping of municipal districts; thus there may be (as formerly in England) city, town, school district or poor district, each separate and not conterminous.
While it is obvious that municipal socialism has rather decreased in the last ten years, laws restricting the granting of franchises have become far more intelligent and are being generally adopted. The best example of such legislation is probably to be found in Kansas. The general principles are that no franchise can be given but for a limited time, that it must be bought at public auction, that the earnings beyond a certain percentage on investment must revert to the city, and that there must be a referendum to popular vote in the locality interested. In 1899 Michigan declares the municipal ownership of street railways unconstitutional, but Nevada passes a statute for municipal ownership of telephone lines. In 1903 the municipal ownership of gas and oil wells is permitted in Kansas, and of coal or fuel yards in Maine. A law similar to the latter was declared unconstitutional by the Massachusetts Supreme Court. Missouri adopts a sweeping statute for the municipal ownership of "any public utilities" in cities of less than thirty thousand population. In 1904 Louisiana permits small towns to own and operate street railways. Other States copy the Missouri statute as to municipal ownership of all or any public utilities, and generally the principle is extended, but only in a permissive way; that is to say, upon majority vote, and this seems to be the present tendency. The most striking present experiment is in Milwaukee; both Haverhill and Brockton tried socialistic city government in Massachusetts, but abandoned it.
Civil-service reform has very generally made progress during the past twenty years in State and city governments, and probably the principle is now more or less recognized in a great majority of the States.
Comparatively little is to be said as to internal improvements. The Michigan Constitution provides that the State shall go into no internal improvement whatever, and this, of course, was the older principle without any express constitutional provision. North Dakota and Wyoming provide that the State cannot be interested in works of internal improvement except upon two-thirds vote of the people.
South Dakota also provides that the State may not engage in them in any case; Alabama, that it may not loan its credit in support of such works; and Maryland, Minnesota, and Wisconsin, that it may not contract debts for the same, or in Kansas be a party to carrying them on. In Virginia, no county, city, or town may engage in any work of internal improvement except roads. Many of the States, however, specify a considerable number of purposes for which State, cities, or counties may give or loan their credit; and the matter of municipal socialism has just been discussed.
Very generally, the States have created agricultural experiment stations and model farms, drainage districts in the South, a levee system on the Mississippi River, and irrigation districts in the West; artesian wells in Texas, and in several States, State dairy bureaus. In specialized products, such as beet sugar, there is often provision for a State agricultural bureau, and nearly always for general agricultural as well as industrial instruction. The States are only beginning to adopt State forests, or forest reserves, Massachusetts and New York leading the way. Forestry commissions exist in a few States, but the very slightest beginning has been made at forestry laws. No control is as yet exercised over reforestation or replanting; a few of the Western States exempt growing trees, or the land covered by growing trees, from more than a nominal tax, notably Indiana and Nebraska. The forestry laws are, however, increasing. In 1903 we find one, in 1904 five, and in 1905 six, with the tree bounty law in North Dakota, and two States exempting forest lands from taxes. There are four statutes this year for fish or game preserves. In 1907 four States create forestry boards, and two exempt forests from taxation, and in 1908 growing trees are exempted in Massachusetts and Rhode Island. But under the unlimited power of Congress over Federal territory not yet incorporated into States, or not ceded to the State when incorporated, it is to the Federal government that we have looked for the creation and preservation of parks, forest reserves, and natural reserves generally. How far it may constitutionally create such within the lines of old States, or on land of which it is otherwise incapable of ownership, is a constitutional question still undecided.
The educational functions of the State are, of course, a peculiar principle of American civilization. Nearly all State constitutions provide that education is a natural right, and the first common school supported by general taxation appears in the Colony of Massachusetts Bay before the year 1640. The principle of compulsory education exists throughout all the States, and in all education of the most diversified kind is given, from the primary school or kindergarten to the State university or technical school of applied science, trade, or business. Nearly all the States have established State universities which are free or open at a nominal charge. Massachusetts continues to rely upon a semi-private institution, Harvard University, which, indeed, is expressly mentioned in its constitution. Provision is universally made also for evening schools, for industrial schools, for public libraries, and for popular elections, and besides the ordinary educational laws and the truant laws, there is in the statutes concerning labor matters abundant machinery for requiring some education as a preliminary to any employment. The age of compulsory education may be said to average between the ages of eight and fifteen, though the limits are extended either way in the divers States. Farm schools and industrial reform schools generally exist, both as a part of the present system and of the educational department. Coeducation in State schools and colleges is almost universal. On the other hand, as we have shown, the segregation of the races is in some States insisted upon. Several States forbid the employment of teachers under the age of sixteen, or even eighteen. Free text-books are generally provided. The period of compulsory schooling varies from the classic twelve weeks in the winter, as in old New England, to substantially the full academic year. Textile and other manual training schools exist in some States, but have generally evoked the opposition of organized labor, and are more usually created by private endowment. The tendency of civil service reform legislation, furthermore, has been to require a certain minimum of education, though it may be feared that the forecast of De Tocqueville remains justified; our national educational weakness is our failure to provide for a "serious higher instruction."
The great question of taxation we may only mention here by way of exclusion. It is naturally a matter for treatment by itself. The reader will remember (see chapter VII) that nearly all the States have now inheritance taxes besides direct property taxes, and many of them have income taxes and, in the South particularly, license taxes, or taxes upon trades or callings. They all tax corporations, nearly always by an excise tax on the franchise or stock, distinct from the property tax or the tax upon earnings. In both corporation taxes and inheritance taxes they are likely to find themselves in conflict with the Federal government, or at least to have duplicate systems taxing the same subjects, as, indeed, already considerable injustice is caused by inheritance taxes imposed in full in each State upon the stock of corporations lying in more than one State. In such cases the tax should, of course, be proportionate.
The principle of graded taxation in the matter of incomes and succession taxes has been very generally adopted, not as yet in any direct property tax, except that a small amount of property, one hundred dollars or five hundred dollars, is usually exempt.
The principle of imposing taxation not for revenue, but for some ulterior or ethical purpose, such as the destruction of swollen fortunes, is liable to constitutional objection in this country, though the courts may not look behind the tax to the motive, unless the latter is expressed upon the face. For this reason, the present corporation tax, on its surface, is imposed solely for the purpose of raising revenue, though in debate in Congress it was advocated mainly for the object of bringing large corporations under Federal examination and control.
The last matter relating to taxation, that of bounties, we have discussed in chapter VII also. State aid bonds, or bonds of counties, cities, and towns, issued to encourage industries, raise a question far more complex than the simple bounty. Such legislation has, however, practically ceased throughout the country, except in the form of exemption from taxation. It has been recognized by a long line of decisions that it is constitutional to grant such aid to railroads, but it may be questioned in almost any other industry. A mere exemption from taxation, especially for a certain number of years, rests on a stronger constitutional basis. Many of the Southern States have recently passed laws exempting manufacturing corporations, etc., from taxation for a definite number of years, and such provisions are found in one or two State constitutions. When they only rest upon a statute, however, they are always at least litigable at the suit of any tax-payer. So, bonds issued by the city of Boston under a statute expressly authorizing them to enable land-owners to rebuild after the great fire, were held to be void. A Federal loan was proposed to raise money to lend to the inhabitants of San Francisco to rebuild after the earthquake, but failed of enactment. It will be remembered that the States have very generally no power to engage in internal improvements (see above). A fortiori, therefore, they can hardly loan money or credit to private interests be they never so much for the general benefit. The difficulty of testing all such laws has been adverted to, at least in the case of taxation. For that purpose Massachusetts has a wise law providing machinery by which such matters may be contested upon the action of any ten tax-payers.
There are three great questions before us in the immediate future—the negro, local or self government, and taxation, which last is the chief problem of city and town government.
The world has never before tried the experiment of municipal government, where those who have the local vote do not generally pay the local taxes.