Measuring local discretionary authority Page: 18
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THE MOVEMENT FOR
Constitutionally established as the creator and
controller of local governments, the state legislature
has had a deep involvement in the local governance
system since the end of the Revolutionary War in
1781. Whereas some states have been concerned with
the economy and efficiency of local governments and
the prevention of corruption, other states have exhibited
little concern for these matters.
Abuses of the legislature's plenary power to enact
special laws led voters in several states in the 19th
century to approve proposed constitutional amendments
prohibiting the legislature from enacting
special laws relating to specific topics. The 1850
Michigan Constitution was the first to prohibit a
specific special law, when it forbade the legislature
from passing such a law "vacating or altering" any
road laid out by highway commissioners.12 Since
1874, the New York Constitution has forbidden the
state legislature from passing local bills laying out or
discontinuing roads, draining swamps, locating or
changing county seats, or incorporating villages.13
A second method of limiting the power of the
legislature to control local governments involves constitutional
provisions prescribing specific procedures
for the enactment of a local law. The Massachusetts
Constitution stipulates that the general court (legislature)
may enact a local law only upon (1) the approval
of a petition by the voters of the concerned
city or town, or mayor and council, or town meeting,
or (2) receipt of a recommendation for passage of a
bill from the Governor and its subsequent approval
by a two-thirds vote of each house of the legislature.
4 To protect against the enactment of "Ripper
laws," the pre-1970 Illinois Constitution granted
to Chicago a suspensory veto over special acts applying
to the city. 15
A third method of restricting the power of the
legislature over political subdivisions is to limit constitutionally
the number of classes of local government
that may be established, by the legislature, or
the minimum number of units in a class. The Massachusetts
Constitution requires at least two local
governments in a class. 16
A fourth approach is illustrated by the Wisconsin
constitutional provision that the legislature may approve
only statewide bills uniformly affecting "every
city or every village." '7
Affirmative Grants of Power
The prohibition of special legislation may be
viewed as a negative constitutional right of local
governments. The first positive grant of power was
contained in optional charter laws allowing cities partial
discretion relative to the structure of government.
Currently, New Jersey, New York, Utah, and Virginia
have optional charter laws for counties, and
Massachusetts and Washington have such laws for
cities. New York counties have made no use of the
optional charter laws, but 19 of its counties have
drafted and adopted charters under special legislation
or the 1958 constitutional grant of power.
The first broad affirmative constitutional grant of
discretionary authority allowed cities in certain states
to draft, adopt, and amend charters-a power later
extended to other local units in some states. This
movement for greater local discretionary authority
has been labeled "home rule"-an emotionally
loaded term and a political symbol often employed
According to proponents, advantages of a broad
grant of local discretionary authority inqlude the
1. Local experimentation to solve problems
and provide services more expeditiously is
2. Citizen interest in local affairs is stimulated
as the citizens possess the authority to initiate
3. Education of residents in civic affairs is promoted
because major decisions are made on
the local level.
4. The most expeditious solution of public
problems is promoted since local citizens
know the problems best because of intimate
knowledge of conditions.
5. A major legislative burden is removed,
thereby providing additional time for the
legislature to consider statewide issues and
problems. In other words, local discretionary
authority is a substitute for special legislation
and also may be viewed as local initiative
replacing dependence upon the legislature
for permission to initiate action.
6. Citizen alienation from government, that
may result from decisions being made by
state bureaucrats who are insensitive to the
views of local residents, may be reduced.
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United States. Advisory Commission on Intergovernmental Relations. Measuring local discretionary authority, book, November 1981; Washington, D.C.. (digital.library.unt.edu/ark:/67531/metadc1259/m1/30/: accessed January 24, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.