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supported by the counsels and demands of his colleagues, but
often a small group composed of very ordinary men — anyone of
whom left to his own strength would not have the audacity to
resist — maintain an energetic and courageous opposition, because
each excites and inspires the others and each feels himself thereby
the stronger and more audacious.

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In principle, the burgomaster has no special power. Never-
theless he is, in his own right, president of the communal council
and of the college of aldermen, and this gives him considerable
means of directing and of guiding their activity. In fact, beyond
that, he is the man who possesses the most personal influence
in both assemblies, as well as among the people of the commune.
In the small and medium-sized communes, it is not uncommon
to find a burgomaster who leads as he listens to the communal
council, as well as the aldermanic college. The aldermen neces-
sarily assume more authority and importance in the large com-
munes, where the necessities of administration have brought a
distribution of functions between them, and where each one of
them has thus received the direction and control of an adminis-
trative service.

But there is one domain which the Belgian law has taken away
entirely from the competence of the aldermanic college, where it
has conferred all the powers on the burgomaster; this is the police.
In theory, the burgomaster alone is charged with securing the
execution within the commune of the general laws and general
provincial regulations; however, this task also can be delegated
to the college of aldermen, and these exceptions to the general
principle are numerous. But in the matter of police there are
no exceptions. The burgomaster alone is charged with the
execution of all the police laws and regulations. • The communal
council itself can, of course, make police regulations; but it cannot
control the execution given by the burgomaster to its regulations,
it cannot even express its opinion on the measures taken by the
burgomaster to assure their execution. In the matter of police,
then, the burgomaster has full powers; he acts alone without
having to consult his aldermen; he is subject only to the control
of the superior authority, provincial or central. Not only does
he direct and command all the officers and agents of the communal
police, but he can in case of necessity requisition the assistance
of the gendarmerie (state police) and of the army. He can even
make police regulations by himself, in case of necessity, in place
of the communal council.

In spite of the uniformity of legislation it is evident that the
practical organization of the communal administrative services

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is very different in the large cities from that in the villages. The
law, which always limits itself to laying down very general rules,
which gives authorization and confers powers on the communal
authorities more often than it imposes on them orders and obli-
gations, is flexible enough to lend itself to all local needs.

Such services as the furnishing of water and light, very highly
developed in the large cities, do not even exist in the majority
of small commimes. Such others as police or health which in
the large cities require hundreds of oflBcers and agents have, at
most, one special agent in the villages. The law authorizes the
communal councils to vote salaries and expense allowances to
the burgomaster and to the aldermen; but in hardly any of the
small or medium-sized communes do the burgomaster and alder-
men receive salaries, because their functions absorb so little
attention that they can continue to devote to their private pro-
fession all the time necessary, and because they consider them-
selves paid sufficiently by the honor and prestige which their
public positions give them. But in the large cities the burgomas-
ter and the aldermen must devote all or nearly all their active
time to their administrative departments, and in consequence
they are paid. In Brussels the aldermen receive a salary of
8000 francs, the burgomaster has a salary of 20,000 francs. The
reason for this great difference is, in the first place, that it is
considered the aldermen can still find time to carry on a lucrative
profession in spite of the work which they have to put in each
day in communal administration, while the burgomaster must
devote all his time and energy to his pubUc duties; in the second
place, there is a considerable expense of entertainment which
falls upon the burgomaster of the capital of the kingdom.


Up to the present time women have been neither voters nor
eligible to membership in the provincial and communal councils.
Nevertheless, thirty years ago the government decided that no
point of law was opposed to naming women as members of the
committees charged with the administration of hospitals and

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asylums, and the distribution of relief to the indigent, — called
"commissions of asylums" or ''bureaus of charity," elected by
the communal coimcil and controlled by it. The choosing of
women for these functions has, however, been very uncommon
up to the present.

The principle that only men vote underwent a first exception
in Belgium by the law of May 15, 1910, which accorded to
women the same rights of suffrage as to men for the elections to
the coimcils of prutTfiommes. The councils of prud^hommes are
special tribunals, charged with deciding contests between employ-
ers and workmen or mechanics. Each one of these tribimals is
composed of an equal nimaber of employers and employees,
all elected, one-half by the employers and one-half by the em-
ployees of the same industry or group of industries. It is pre-
sided over by a magistrate named for life by the government as
justice of the peace, for whom this presidency is only a very
secondary part of his functions.

The question of revision of the suffrage has been prominent
during the present reconstruction period in Belgimn. Plural
voting has been definitely abandoned and no more elections,
central or local, will be carried on according to that system.

In April, 1919, the chambers adopted a law, which, passing
outside the formal provisions of the constitution, decided that
the next parliament, called to revise the constitution, should be
elected by the universal suffrage of men twenty years of age and
over, and that in addition the widows and mothers of the sol-
diers killed in the war, as well as some other women, were to be
electors. The nimaber of women enjoying the right to vote under
these provisions is small; but Jhe old dogma of the vote as the
exclusive privilege of men is in this way weakened.

In the new parliament elected last November under these
provisions, the chamber of representatives, on March 10, passed
a bill (115 to 22, 5 absent) estabUshing woman suffrage in mu-
nicipal elections on the same lines as manhood suffrage. On April
14 the bill passed the senate (60 to 33, 2 absent). Since an
amendment to the constitution is not necessary for this change,
woman suffrage is, by this bill, extended to all the communes.

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The question of the extension of the parliamentary suffrage
to women has caused more difficulty. The Liberal party op-
posed the municipal suffrage bill, and is in strong opposition to
parliamentary suffrage. The Socialists are inclined to await the
experience with the votes of women in communal elections before
introducing woman suffrage in all elections. The present coa-
lition cabinet has recently proposed parliamentary suffrage as a
bill requiring a two-thirds majority, rather than a constitutional
amendment. An interesting feature of this struggle over woman
suffrage is that in such war-stricken countries as Belgium the
women undoubtedly outnimiber the men and might form im-
mediately the majority of votes in elections.

In the election last November, the abolition of plural voting,
combined, probably, with other causes, increased the Socialist
representation in both chambers, and deprived the Catholic
party of its long established majority in both chambers. The
Liberal party now forms barely a one-third minority in the senate
and less than that in the house of representatives. Further
changes or extensions of the suffrage are, therefore, looked upon
with intense interest by the three parties, to forecast their prob-
able effect on party strength.

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University of Iowa

The Iowa constitution of 1857 was one of the first to prohibit
the passage of special laws for cities and towns. Section 30 of
Article III of the constitution enumerates six subjects upon which
the legislature is forbidden to pass any special act; the fourth of
which proscribes the passage of any act '^For the incorporation
of cities and towns." The same section also declares that ''In
all the cases above- enumerated, and in all other cases where a
general law can be made applicable, all laws shall be general,
and of uniform operation throughout the state." In addition
to these provisions Section 6 of Article I of the Bill of Rights
requires that "All laws of a general nature shall have a uniform
operation; the general assembly shall not grant to any citizen
or class of citizens, privileges or ijnmimities, which upon the same
terms shall not equally belong to all citizens."

Just what prompted the convention which drafted the consti-
tution of 1857 to declare against special legislation for cities and
towns is not clear. The proceedings of the convention do not
disclose any debate upon the provision when adopted- The
experience, of other states may have impressed the constitution
makers of Iowa with the evils arising from the unlimited exercise
of powers over municipaUties by legislative bodies, but that these
evils had manifested themselves seriously in Iowa as early as 1857
is almost beyond belief. In 1856 the total population of Iowa
was only 517,875^ and this was largely rural. The federal cen-
sus of 1860 shows but two cities in the state with a population
above 10,000 and these were both under 15,000. The largest
communities in practically all of the counties did not exceed 1200,

* See Hull's Historical and Comparative Census, 183&-1880 (Iowa), p. xliv.


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and even as late as 1870 out of a total population of 1,194|020
only 281,472 were listed as urban.

The prohibition of special legislation for municipalities had
been incorporated in the constitutions of Ohio and Indiana in
1851, and it is not unlikely that the Iowa provision was copied
from one of these.* The opposition to the creation of private
corporations by special acts of the legislature manifested itself
earlier than that toward the creation of municipal corporations
in that way. The Iowa constitution of 1846 declared that "Cor-
porations shall not be created in this State by special laws, except
for political or municipal purposes."^ It is therefore probable
that when the constitution of 1857 was adopted the prohibition
of special legislation was applied both to private and municipal
corporations, because no good reason could be shown why the
latter should not be included as well as the former.

Since 1857 the incorporation of cities and towns has been under
general law, based upon a statutory classification. Those cities
and towns operating under special charters at the time of the
adoption of the present constitution were not affected by the
adoption of the general statute, but they were permitted to
give up their special charters and organize imder the general
law if they so desired.* In like manner they have been per-
mitted to give up their special charters and organize under the
commission plan or the city-manager plan, as well as those
operating under the general law.

From the organization of the Territory of Iowa in 1838 until
the constitutional provision forbidding special charters went into
effect in September, 1857, forty cities and towns had been granted
special charters. Sixteen of these were granted at the legisla-
tive session of 1856-57, at the request of towns desiring special
charters before it was too late.

Many of these special charters were liberal in their provisions,
and the cities and towns possessing them enjoyed a considerable
degree of home rule. The usual method of securing a charter was

* Cf. McBain's The Law and the Practice of Municipal Home RuUf pp. 68 and 74.

• Constitution of lowa^ 1846, Art. IX, sec. 2.
« Code of Iowa, 1897, sec. 631.

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for the inhabitants of the community to petition the legislature
in writing. Sometimes a delegation from the locality was sent
to the capital for the purpose of presenting a charter, previously .
drawn by a committee of citizens.*

Most of the special charters contained a referendum clause,
providing for a special election for the acceptance or rejection of
the charter by the electors. In a few instances charters were
not accepted by the voters. In one city (Muscatine) the city
council was given power to accept or reject an amendment to
its charter passed by the legislature.® In a few cases the electors
were allowed to vote on the repeal of their own charters, a major-
ity being necessary to a decision, but in practically all cases the
legislature reserved the right to alter, amend or repeal the charters

The city of Davenport received its second charter in 1842, and
the act granting it expressly stated that it was to become effective
only if ratified by a majority of thg electors, .otherwise it was to
be null and void. The assembly, however, reserved the right to
alter, amend or repeal. In 1847 the assembly passed an act for
the repeal of this charter ^^ Provided, A majority of the votes polled
at the election hereinafter authorized shall be in favor of such
repeal." It seems evident that the charter was not repealed,
for the next year (1848) an act was passed amending the charter
of 1842. In the session of 1850-51 the legislature took matters
into its own hands, enacted th^ present charter ol the city of
Davenport and repealed ''all acts or parts of acts coming within
the provisions or purview of this act, or contrary to, or incon-
sistent with its provisions."

The charters granted were looked upon as matters chiefly of
local concern and were usually passed without much discussion
or debate, nor do the records show that a charter bill ever failed
to pass the legislature, though the governor vetoed three of them
on account of irregularities in passage.'^ It is in this spirit that

• Robeson, Special Municipal Charters in Iowa, 1896-1858, in Iowa Journal of
History and Politics, Vol. 18, p. 174.

• Laws oj Iowa (Extra Session), 1856, p. 51.

' Robeson, Special Municipal Charters in Iowa, 1886-1868, op. cit., p. 175.

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much of the municipal legislation is still passed. Dillon says:
'^ Members of the legislature .... have come to regard
each member as representing and speaking for his own con-
stituency, and have countenanced a tacit understanding that
legislation affecting that locality should be his especial and
individual care. Having no feeling of responsibility to those
whose suffrages do not elect them, they are indifferent to legisla-
tion not affecting their immediate constituencies. This indif-
ference results in a process of log rolling founded upon a tacit
agreement that where political interests do not intervene, local
legislation requested by the representative of the locality shall
become law without objection."*

Thus the legalizing acts which make up a large part of the
legislation of any session of the general assembly are usually
recommended for passage as a matter of course and passed without
discussion or opposition. In reviewing the acts of the last three
sessions of the general assenxbly of Iowa the writer discovered
that wherever an act appeared as special legislation, though
clothed in general terms, it always affected a community located
in the county which the author of the act represented. It is
therefore the purpose of the writer to show that in spite of the
constitutional prohibitions cited above, special legislation for
municipalities in Iowa is still profuse, and that as long as it has
the appearance of being general, it has been the policy of the
courts to sustain it.

Following the adoption of the constitution of 1857 the legisla-
ture passed a general municipal statute, arranging municipal
corporations into three distinct classes according to population
.as follows: All incorporated communities having a population
of under two thousand inhabitants were classed as towns; all of
those having a population of two thousand and less than fifteen
thousand were designated as cities of the second class; and all
having a population of fifteen thousand or over were rated as
cities of the first class. This classification was made in the gen-
eral municipal act passed in 1858 when the population was largely

* Dillon's Municipal Corporations (fifth edition), Vol. 1, pp. 245-246.

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rural, and it has not been disturbed to the present time. Under
this act communities of the two lower classes automatically
pass to the next higher class as the increase in population brings
them within the next higher class.

A few cities, however, have grown more rapidly than others;
the capital city soon became twice as large as the next largest
city in the state, and from two to five times as large as most of
the cities rated as cities of the first class. Problems therefore
arose in these larger cities which seemed to demand special

On March 20, 1858, the general assembly passed an amend-
ment to the charter of the city of Davenport. • The validity of
this act came before the supreme court of Iowa at the June term
of the same year in the case of Ex parte Samuel Pritz, Judge
Dillon appearing as a member of the firm of the counsel for the
petitioner.*^ In this case, the court after raising the question
of the purpose of Section 30 of Article III of the Constitution
said: ''The ready and obvious answer is, to prevent special or
local legislation; to require that the legislature should pass general
laws upon all the subjects named and in all other cases, where
such general law could be made applicable. There can be no
question but that it [the constitutional provision] was designed

to confine the legislature to general legislation If

. . . . the legislature may not pass a law to inco77?orate a city,
but may to amend an act of incorporation in existence before the

adoption of the constitution [it] would make this

provision of the constitution practically amount to nothing.
For if they may amend, they may to the extent of passing an
entire new law, except as to one section. Or they may at one
session amend half of the law, and at the next the other half,
and thus the plain and positive prohibition of the fundamental
law would be evaded.*' The act amending the charter of the
city of Davenport was therefore declared null and void. In like
manner the court held that the legislature had no power of re-

• Laws of Iowa, 1858, ch. 88, p. 152.
>• Ex parte Samuel Pritz, 9 Iowa 30.

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pealing a special charter or any of its provisions, as the consti-
tutional prohibition would be viplated as much by the repeal of
a special charter as by. its amendment."

Since these decisions of the Iowa supreme court the general
assembly has not, to the writer's knowledge, passed any act for
the benefit of any city or town in which the city or town was
specifically named, except legalizing acts, which has stood the
test of the supreme court. Nor has the supreme court failed to
appreciate the fact that many legislative acts can, in the very
nature of the case, apply to but one community. ** An act appli-
cable to cities of a specified population," declared the court, ''is
not invalid as special legislation, although the limit of population
is such that it is applicable to but one city, if in terms it may be
appUcable to other cities should they attain the specified popu-
lation."** In fact the decision in the Pritz case and in that of
the town of McGregor v. Baylies seems to have put an end to
legislation for cities by name. Special legislation for cities is,
however, common; and though always clothed in general terms,
the reader can usually identify the cities benefited almost as
easily as if they had been mentioned by name.

There have been several means employed of enacting legisla-
tion for the benefit of certain cities : first there is the method of
enacting legislation by making it applicable to ''all cities" of a
certain named population or over. Thus whenever a law declares
that any city having a population of seventy-five thousand or
over may enjoy certain rights, the city of Des Moines is the only
one benefited by the act.

Many other means of classification are employed. Thus in
1917 an act was passed providing that cities located upon any
navigable river, forming a part of the boundary of the state,
are authorized, where a tax has previously been voted and paid
to aid any company in the construction of a highway or combina-
tion bridge across such river, to purchase such bridge and its
approaches and they may issue bonds for payment, and the

1^ Davis V. Woolnough, 9 Iowa 104.
" Tuttle V. Polk, 92 Iowa 433.

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council may fix the toll rates.*^ This act was clearly for the
benefit of Muscatine.

In 1915 the legislature passed an optional city manager act
which made provision that in cities of twenty-five thousand or
over, five councilmen should be chosen, while in cities of less
than twenty-five thousand but three should be elected. A special
provision for a special city was, however, included as follows:
"provided, however, that in any city having a population of
twenty-five thousand or more, and less than seventy-five thou-
sand, of which the territory embraced within the boundaries of
such city lies in two townships, which are divided by a water
course, four councilmen shall be elected, two of whom shall be
residents of, and elected from that part of the city lying within
each of such townships."^* This was strictly a concession to
local jealousy in the city of Waterloo. Even Carnegie found that
a public library could not be built in Waterloo unless one was
built on each side of the river; accordingly, Waterloo has two
public libraries. Every public enterprise promoted on the one
side of the river must be equally promoted on the other side.

The existence of a number of commission governed cities in
Iowa offers another convenient basis for special legislation by
classification. Thus, in 1917, an act pfovided that commission
governed cities of 90,000 or over could not levy to exceed three
mills for the maintenance of the fire department. ^^ Des Moines
is the only commission governed city in the state of Iowa having
a population of 90,000 or over. Another act of the same year
grants additional power to cities under the commission form of
government having a population of 50,000. Only two cities
can possibly come within this classification.

Four acts were passed in 1919 for the special benefit of Des
Moines. Two of these apply to cities of 85,000 population and
two to cities of 100,000, but in each case Des Moines is the
only city that can possibly be benefited. One act declares that
''all cities including cities under special charter and commis-

i» Laws of Iowa, 1917, ch. 140.

" Supplemental Supplement to the Code of Iowa, 1916, ch. 14-d, p. 86.

» Law8 of Iowa, 1917, ch. 131.

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sion plan of government, having a population of eighty-five
thousand or over, shall have power" etc.*® The inclusion of all
cities and special charter cities is mere camouflage as the largest
city not under special charter or the commission plan has a
population of only 30,097; while the largest special charter city

Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 42 of 77)