XII

THE POWER OF MUNICIPAL CORPORATIONS IN ENACTING ECONOMIC LEGISLATION

The power to enact economic legislation has to some extent been delegated to municipal corporations by the General Assembly. For example, such corporations have been given power to make ordinances for the regulation of certain businesses, enterprises, and industries within their limits; but they enjoy only those powers which have been expressly conferred upon them by the legislature.527

In treating of the powers which have been delegated to municipalities to enact economic legislation the purpose will be to deal only with those laws which enumerate and delegate such power: only those grants of power will be considered which authorize municipalities to legislate upon the subjects which are clearly within the scope of the general plan of this work. Neither will the present treatment attempt to discuss the actual administration of the law or to point out what municipal corporations have done in enacting economic legislation: here it is intended merely to indicate what powers have been granted to the cities and towns of the State.

SPECIAL CHARTER CITIES

The Territory of Iowa was established in 1838, but the general law of the Territory of Wisconsin under which cities and towns could incorporate remained in force until 1840.528 Indeed, there was no other general law for the incorporation of cities and towns enacted during the Territorial period, and the common practice of the time was to

incorporate cities and towns by special acts of the legislature. A general law providing for the incorporation of towns was passed in 1847, but the practice of granting special charters to municipal corporations was continued until prohibited by the Constitution of 1857.

During the period in which it was the policy to incorporate cities and towns by special acts of the legislature about forty cities and towns were chartered.529 An examination of these special charters shows that the delegation of power varied considerably. Although the first towns to be incorporated under special charters received relatively little power, the charters voted at a later date, especially those granted in 1856 and 1857, conferred rather broad powers of local legislation. To indicate the scope of such grants of authority it will only be necessary to review the provisions of two or three typical charters.

The first special charter granted by the Legislative Assembly of the Territory of Iowa was granted to Bloomington (now Muscatine) in January, 1839.530 By its provisions the only power delegated to the corporation in enacting economic legislation was the authority to regulate and improve lanes and alleys and to determine the width of sidewalks. The streets, lanes, and alleys of the town, including the several roads leading from the town for the distance of one mile, were declared to constitute one road district, and the electors of the town were to elect an overseer for such district.

The town of Davenport was granted a special charter only a few days later. In this case the officials were authorized "to make, ordain, and publish all by-laws and ordinances, not inconsistent with the constitution and laws of the United States, or of this Territory, as they shall deem necessary and proper for the promotion of morality, as well as for the good regulation, interest, safety, health, cleanliness, and conveniences of said town and the citizens there

of". The corporation was also authorized to improve all streets, alleys, sidewalks, and drains or sewers; to regulate markets, and to establish a fire department. The same provision was made in regard to a road district as had been included in the Bloomington charter.331

Davenport was re-incorporated by an act approved on February 11, 1842. This act authorized the corporation to regulate vessels and water-crafts within the limits of the town; to erect lamps; to license and regulate drays and other vehicles kept for hire; to regulate markets and the sale of produce; to regulate and improve the streets, wharves, public grounds and sewers; to organize and establish fire companies; and to license bakers and regulate the price and weight of bread. The provision relating to the town road district remained unchanged.532

Although the powers delegated to municipal corporations by the special charters varied greatly they usually included authority to construct and maintain a system of water supply and a lighting system. The specially chartered municipal corporations were given broad powers over streets and bridges. They could erect and maintain markets; improve and regulate wharves, docks, and the navigation of streams within their limits; license and regulate transient merchants; regulate local transportation systems, such as carts, carriage, dray, and express lines; protect the city from fire; and inspect and regulate weights and measures. They could levy and collect taxes on the taxable property within the corporation for the purpose of carrying out the authority given them; but the amount of the tax which could be levied was usually limited by the charter.

During the period when special charters were granted to municipalities the cities and towns were small, and so the regulation of the public service industries was a comparatively simple matter. Indeed, the public utilities problem, as we now think of it, did not exist. More attention was

given at that time to the regulation and license of the different lines of private business which were being conducted within the corporation. The powers relative to such regulation were enumerated in detail in the several charters. Some went so far as to allow the city to regulate the weight, quality, and price of bread to be sold and used in the city.533

POWERS GRANTED BY GENERAL INCORPORATION LAWS

In addition to the special charters the First General Assembly of the State passed a general law for the incorporation of towns in 1847.534 Towns incorporated agreeably to this act were empowered to make such ordinances, not inconsistent with the laws and Constitution of the State, as they might deem necessary for the good government of the corporation. They could establish and regulate markets; provide a suitable water supply; and open, improve, and regulate streets and alleys. They had jurisdiction over public grounds and wharves and the authority to establish and maintain suitable fire departments.

The Code of 1851 provided for the incorporation of towns and cities in much the same manner as did the act of 1847; and the power to enact economic legislation which was delegated to them was also much the same. They were authorized to establish, regulate, and improve streets; to provide a sewer system; to provide a water supply; to regulate and repair wharves and landing places; to regulate markets; to license and regulate local transportation systems; and to provide protection against fire.535

The Constitution of 1857 provided that the General Assembly should not pass local or special laws for the incorporation of cities and towns,536 and in the following year the General Assembly passed a general law entitled "An Act for the Incorporation of Cities and Towns.''537 All towns

and cities were thereafter to be incorporated in the manner prescribed by this act, but the new law was not to apply to those cities and towns which had already been incorporated, unless they wished to come under its provisions.

Towns and cities incorporated under the act of 1858 were empowered to legislate as follows: to establish and regulate markets and to provide for the measuring or weighing of hay, coal, or other articles offered for sale; to provide fire protection and to establish fire zones and regulate building materials; to provide and regulate a water supply; to install, regulate, and improve a drainage system; to provide and regulate a proper lighting system; to lay out, regulate, and improve streets and wharves; to regulate transient merchants and auctions; and to regulate local transportation companies. In addition to the specific powers enumerated a general welfare clause provides that cities and towns may make "such by-laws and ordinances as to them shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof. ''538

During the period from 1858 to 1873 there was little change made in the powers which had been delegated to cities and towns by the act of 1858. The Fourteenth General Assembly in 1872 authorized municipal corporations to construct, or cause to be constructed, water-works-provided that when the right to construct such work was granted to private individuals or corporations the grant should not be for a period of more than twenty-five years. 539 Several additional amendments of minor importance were made during this same period.540

From 1873 until the adoption of the Code of 1897 many acts affecting the powers of cities were placed upon the statute books. The Code of 1897 collects these laws and re