fathers to pass upon the names submitted to them. The writ was denied on three grounds. First, the requirement of equal representation of the two political parties created an unconstitutional "test" for the holding of public office. Second, such important powers of government as those concerning the conduct of elections must be exercised by officers who "derive their powers and office either from the people directly, or from the agents or representatives of the people," and cannot be subdelegated. Third, the provisions of this act interfere with the constitutional right of local self-government. Upon this point it is worth while to quote the following passages: “It is also well settled that our state polity recognizes and perpetuates local government through various classes of municipal bodies whose essential character must be respected, as fixed by usage and recognition when the constitution was adopted. And any legislation for any purpose, which disregards any of the fundamental and essential requisites of such bodies, has always been regarded as invalid and unconstitutional." And further on: "It has always been held in this state that the municipalities which can be created by our Legislature must be such in substantial character as they have been heretofore known. Up to this time, and ever since elections were first held in Michigan, they have been not only localized in some municipal division, but regarded as municipal action and supervised and managed by municipal officers, either directly elected or else appointed by those who have been elected. Such a board as this, which is in no sense a mere agency of the city, is foreign to our system. If it can be created in a city it can just as well be created in a county, or for the State. When the election ceases to be a municipal procedure, the whole foundation of municipal government drops out. And a municipality which is not managed by its own officers is not such a one as our constitution recognizes."

1 Attorney General v. Board of Councilmen of the City of Detroit, 58 Mich., 213.

I have quoted very fully from this series of cases, in order to show in the express words of the court, that the doctrine of local self-government is something more than a theory in Michigan. It is fully recognized that the Legislature may grant, withhold, or take away the corporate powers of cities, but it cannot take away from the people of any locality the fundamental right of managing their own affairs. That is, the essentials of county and township government are guaranteed absolutely to all the people, and if further privileges are given to cities, they can be exercised only by local officers. There are certain general functions, as police, which may be exercised in a supplementary way by state officials, but not to the displacement of ordinary local officers. And further, the Legislature cannot radically change the existing forms of municipal government, as, for instance, by depriving the city council of its essential position as the municipal legislative power.

1 The Legislature of 1895 reorganized the Detroit Board of Health, giving the appointment of its members into the Governor's hands. This act has not yet been passed upon by the Supreme Court.

CHAPTER IV.

CONSTITUTIONAL PROVISIONS FOR CITIES IN OHIO.

I. The early development of special legislation.

By the Constitution of 1802 no provision was made for municipal corporations. But the inhabitants of counties, towns and townships were guaranteed the right to elect their own officers. When we remember that Cincinnati was first incorporated as a city in 1819, it becomes evident that the constitution-makers of 1802 could not have felt the pressure of the problems of city government to any extent. It is not surprising that they were content to leave the work of municipal organization to the legislature. Still the guarantee of local selfgovernment to "towns" was important, as in that term were included embryo city organizations. But the phenomenal growth of Ohio's population during the first half of this century from about 50,000 to almost 2,000,000, and the consequent development of industry, led to the chartering of numberless corporations, including of course many municipalities. The custom of special legislation for the organization of corporations was a natural growth, and not being restricted by constitutional provisions, had become a great evil by the year 1850. At the session of the General Assembly for 1849-50, for instance, 545 local and special acts were passed, 73 of them relating to towns and cities, 78 to turnpike roads, 75 to plank roads, 67 to railway companies, and so on through the list of the various corporate enterprises. At the next session the total number of such acts was 672, making an octavo volume of 709 pages.

1 Constitution of 1802, art. vi, secs. I and 3.

369]

51

II. The Convention of 1851 and its work.

The mere bulk of this special legislation would have furnished an urgent reason for the requirement of general incorporation laws. But another force was at work, of greater influence on the public opinion of the state. The over-development of corporate undertakings, and the consequent losses to the community as a whole, were probably the reasons for the intense feeling against corporations that took possession of the popular mind, and called for the constitution of 1851. No better evidence of this can be given than the words of a delegate to the constitutional convention in the debate on the subject. The committee of the whole was discussing a section reported by the committee on the legislative department, providing that "the General Assembly shall provide for the creation and government of municipal corporations by general and uniform laws." Mr. Leech moved to add, "but no corporate body shall be created, renewed, or extended by special act of the General Assembly." In support of his motion, he said: "Corporations, sir, are destructive to equality, and hostile to free institutions, and their existence should not be tolerated in a republican government. They confer privileges and benefits on the few, which are not enjoyed by the many. Every special act of incorporation is a grant of monopoly-a charter of privileges to a few individuals, which are not conferred upon the community at large. Such legislation is, consequently, utterly repugnant to the great republican doctrine of equal rights a doctrine that lies at the basis of the free institutions of this country." Moved by this profound disgust with corporations, the convention made no very careful distinction of public and private corporations. The two standing committees in charge of this general subject were the committee on banking corporations, and the one on "corporations other than banking." In the debate on the proposition to prohibit special

1 Convention Debates, 1850-51, vol. 1, p. 284.

acts of incorporation, the chairman of the second of these com. mittees, in explaining his report, said that "some of the state constitutions contained an exception, so far as municipal corporations were concerned. There was no very definite conclusion come to on the part of the committee, whether this exception should be named or not; but they concluded however, unanimously, to make this report without a section of that nature. They believed that all the corporations of the state could be as well regulated by general as by special acts of incorporation-by some classification in cities-by the number of inhabitants, or by some other manner which might be thought prudent by the Legislature." Another gentleman argued in favor of the proposition on the ground that acts of a general nature would get much more careful attention at the hands of the legislature than special acts. The latter were passed almost without interest save on the part of the member from the locality affected. Several gentlemen, on the other hand, argued that special legislation for cities could not be dispensed with. It is interesting to note that one of the delegates, a man of German birth, in advocating general laws, said that he had had some experience with reference to general acts for cities, and knew the difficulties in the way were not insurmountable. It would simply be necessary to put in the law general provisions to cover all possible differences of local needs, and leave it to the individual cities to decide whether or not to take advantage of them. This was introducing the Continental idea of a general grant of corporate power, and could hardly be expected to appeal in its fullness to Americans, who had come to consider a city charter as much a law as a grant. Yet the opinion of those favoring general laws prevailed, and the three following sections were adopted by the convention and ratified by the people:

1 Convention Debates, 1850-51, vol. i, p. 340. 3 Ibid., vol. i, p. 358.

2 Ibid., vol. i, p. 342