The Day Without Cities

The History of Judicial Decisions that Abolished All City Government

Walnut Street, Cincinnati, Ohio, c/o Cincinnati Public Library

Many of us have been frustrated with local government. Perhaps the roads go unpaved, the streets go unplowed, or traffic tickets are handed out too aggressively. Most of us don’t do much besides be quietly unhappy, although some angrier citizens take their complaints to city hall. An elite few judges, however, have dared strike a mortal blow against local government and attempt to abolish it via judicial decision.

This post covers the surprisingly rich American tradition of “state supreme court decisions ruling that nearly all municipal government is unconstitutional.” There are two such cases that I’m aware of, one in Kansas and one in Ohio—but, as the saying goes, it’s odd that it happened twice.

The underlying problem arose from constitutional law. Both states’ constitutions required that laws about cities be written in a generally applicable way rather than on a case-by-case basis. Both states ignored this provision and wrote city charters on a case-by-case basis anyway. Judges responded by observing that the state constitutions forbade these charters and therefore ruled that nearly all city governments were unlawful.

Although the history is certainly entertaining, it showcases deep truths about constitutional law. The costs are high, as legal compliance often has unacceptable or absurd consequences even when the constitutional provisions work as intended. The benefits are limited, as judges are able to stop unlawful action but are not suited to construct better alternatives. As a result, attempting to achieve major goals through constitutional law results in legal red tape while also neglecting the more fundamental task of making the government more competent. It is ultimately better to ask what laws would make government work well than ask what constitutional provisions would forbid it from working poorly.

The Chartering of Great American Cities

The U.S. Constitution directly establishes the existence of federal and state government. City government, by contrast, needs to be created by legislation at the state level. States do so by giving municipalities city charters that confer on them the legal right to elect officers, tax their residents, pass and enforce regulations, and so forth.

States can create these charters in two main ways. First, they can create a general framework for charters, either by directly writing laws that apply to all cities or by establishing the process for cities to write their own charters. Second, they can write city charters themselves on a case-by-case basis—we might imagine the Texas legislature passing a law that gives some particular new city charter to Houston.

The idea of writing city charters on a case-by-case basis sounds disreputable today. However, it was once commonplace for legislatures to write many kinds of law this way, which was referred to as special law or private law. This was in fact the majority of law that Congress passed well into the 20th century; Congress would, for instance, give citizenship to individual immigrants and pensions to individual widows.

Although special law lasted into the mid-20th century, there was a backlash against certain types of special legislation in the 1800s. There was particular backlash against special municipal legislation, whereby state legislatures wrote and altered city charters for individual cities.

State legislatures were resented by cities for three broad reasons. First, their special laws were often corruptly used to give favored contractors work or give political cronies jobs. Second, the special laws were often passed after municipal elections to gut the other party—if the opposite party won, state legislatures would frequently reassign all the important powers to the county (or vice-versa). Third, state legislatures were simply not very responsive to local needs and neglected regulations that cities considered urgent necessities, in areas from electrification to public health.

Reformers demanded that cities be free of interference from state legislators. This movement, later known as the Home Rule movement, had already won victories in the 1850s when states wrote constitutions that forbade municipal legislation via special laws.

These constitutional provisions were meant to curb a real and persistent abuse. State legislatures consistently meddled with cities for partisan purposes or personal interests, and banning private municipal legislation was intended to remove this temptation. However, the provisions raised an inevitable question: how should the legal system respond if state politicians continued passing special municipal laws anyway? This was put to the test in Kansas and Ohio.

A Tale of Two Cities’ Charters

The two cases were separated by several decades, although both arose from very similar constitutional provisions. In Kansas, the relevant case was Atchison v. Bartholow (1866); in Ohio, the case was State ex rel. Kniseley v. Jones (1902).

Kansas

Kansas adopted a constitution in 1859 that forbade special legislation. Its provision was likely borrowed from the Ohio constitution of 1851 (for which, see below). The constitution provided:

Art. XII, Sec. 5

Provision shall be made by general law, for the organization of cities, towns and villages, and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.

The provision clearly banned the use of special legislation to charter cities or alter their powers. And yet, in what might be called a conspicuous lack of statesmanship, a legal historian noted that “several successive legislatures which assembled under the constitution paid no attention whatever to these provisions. They proceeded to enact special laws for cities without the slightest apparent hesitation.¹”

Among these dubiously chartered cities was the city of Atchison, which by special legislation was given the power to conduct tax assessments on its residents to fund public infrastructure.

Theodore Bartholow was a disgruntled resident of Atchison who sued the city in 1866 to stop it from taxing him. He raised several arguments as to why he ought not be taxed, most of which were mind-numbingly technical. However, Bartholow’s most successful argument was his boldest: he claimed that the city couldn’t tax him because this power didn’t even legally exist, as it was unconstitutionally granted by special legislation.

This argument was, in fact, entirely correct. The state constitution forbade case-by-case laws about cities, and that was precisely how Atchison was granted this authority to tax. The Kansas Supreme Court saw no alternative but to rule in the plaintiff’s favor. It regretted the results, saying (perhaps melodramatically):

The court is aware of many of the disastrous consequences which must necessarily follow this decision; and if in conscience it could have done so, would gladly have avoided them. It had but a single duty to perform. It has endeavored thoroughly to understand the subject, and has acted in accordance with its convictions. If the conclusion at which it has arrived be erroneous, the regrets of the sufferers will not be keener than those of the members of this tribunal. But if the decision is correct, it is better that it be now declared, than that the blow should fall with greater effect hereafter.

Decision of the court below reversed.

All the justices concurring.

Theodore Bartholow did not have to pay his city taxes, because the city’s tax department didn’t legally exist! Not only were the legal foundations of Atchison constitutionally flawed, but most of the cities in Kansas were in the same boat. Years of tax assessments, regulations, and criminal convictions were potentially threatened due to the foolhardy legislature.

And did the Kansas legislature emerge humbled, with a newfound respect for the strict letter of the law?

Not in the slightest. Despite this chaos, the legislature happily continued passing special legislation for cities, notwithstanding the judicial ruling and the state constitution.

These later (and indisputably unconstitutional) city charters were only rarely challenged, for reasons that remain unclear. This is doubly odd because raising this point was apparently inevitably a get-out-of-jail-free card for tax delinquents (or whoever was suing the city government). Lawyers forgot about this constitutional provision as quickly as the legislators. One wonders if Kansas lawyers and Kansas legislators were reading their own state constitution.²

Ohio

In 1851, Ohio adopted a constitution with the ban on special municipal legislation that Kansas likely borrowed:

Art. XIII, Sec. 6

The general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.

In contrast to Kansas, Ohio made a quite sincere effort to write generally applicable laws about cities.

This is trickier than it might appear at first glance. The laws suitable for a large city are totally different from those suitable for a small rural village. Cities need laws about, say, public health and infrastructure, and they need a bureaucracy to administer them. By contrast, the complexity of this system would crush a village that tried to implement it.

Ohio hit upon a sensible solution and said that it would divide cities into four classes based on their population. The first class cities had a population over 20,000, the second class cities had a population between 5,000 and 20,000, et cetera. Each class of city then got its own municipal code, so that (for sake of illustration) laws about power plants were only applicable to the large cities that actually had power plants.

After this promising start for the constitutional provision, the succeeding generations of politicians promptly began looking for ways to circumvent it. They began creating subcategories of classes which were eventually divided so finely that subcategories contained only a single city. For instance, one class of city was those that had a population between 31,000 and 50,000 at the previous census, which only described Columbus. At first, the courts accepted these laws because they were facially neutral.

These laws were soon used for overt partisanship. It reached a boiling point in 1902 with a series of nakedly partisan bills. One reassigned the management of Cleveland’s parks to a county board, while another took Toledo’s police board out of local elections and placed appointments in the hands of the governor. City governments—particularly mayors—had their powers stripped and reassigned to either counties or the governor. All of these bills were written as putatively general laws for a subcategory that described only a single city. They were obviously special legislation by another name.

This resulted in a variety of lawsuits filed both by the aggrieved politicians and by the public. The Ohio Supreme Court issued three opinions in 1902 that overturned these laws on the basis that they were special legislation, ruling that the system of subcategorization was unconstitutional. This judgment overturned decades of precedent that had treated the subcategories as acceptable, and would have made most city governments unlawful in some form or another. (In fact, it would have totally eliminated the government of Cleveland.) The court stayed the enforcement of its own decision.

The governor summoned the legislature for a special session, where it wrote and passed a new municipal code that eliminated the subcategories and once again was reasonably general.³

Conclusion: Constitutionalism and Administration

State constitutional bans on special municipal law did—with great difficulty!—reduce state interference with cities, but they already pushed constitutional law to the limits of what courts can effectively enforce. Constitutional law is enforced by judges, and judges are good at stopping unlawful action but bad at designing replacement systems. This dynamic made the bans on special municipal legislation difficult to enforce and casts doubt on more ambitious forms of modern constitutionalism.

Constitutional provisions work well when saying “no” solves the problem at hand. For instance, suppose the government attempts to prosecute someone twice for the same crime. A judge can rule that this violates the Fifth Amendment and order that the case be dropped. Similarly, suppose that a regulatory agency attempts to pass regulations for which it lacks legal justification. A judge can rule that the regulations are unlawful and order the agency not to enforce them. In both cases, ordering the government not to do something addresses the issue without creating a mess for anyone else.

Constitutional provisions work poorly when the problem requires hammering out a new system. Solving such problems tends to require the cooperation of other actors in order to succeed, as shown by the cases at hand. When state legislatures passed special laws for cities, judges could rule that these city charters (or newly granted powers) were unconstitutional. However, judges saying “no” wouldn’t solve the problem at all—cities would be left without key powers to raise taxes or construct infrastructure. The only real solution was for state legislatures to write general municipal codes. In Ohio, the judicial decision successfully drove reform because the governor and legislature responded; in Kansas, the legislature’s continued indifference left judges without a good remedy. Constitutional law had reached the limits of what it could do without turning judges into administrators.

And by modern standards, bans on private municipal legislation were a fairly restrained goal! For all the trouble they caused, they were fundamentally a straightforward requirement that the government refrain from doing something.

By contrast, constitutions today often pursue complex societal goals, for example by granting affirmative rights to housing or to a clean environment. But what do judges do if the government ignores these provisions? Either they do nothing, which guts the constitutional provisions, or they attempt to enforce them and thereby draw the judiciary into the realm of programs, budgets, and staffing, for which it is unqualified. In short, “affirmative rights” constitutionalism suffers from the same problems that Kansas and Ohio faced, but applied to problems where the need for coordinated administration is vastly greater.

Because constitutional law is a blunt instrument, it is most effective when used to define governmental structure and to protect individuals against unlawful government action (such as prosecution or regulatory enforcement). In these cases, judges can enforce the rules through the simple remedy of telling the government “don’t do that.” But the more that constitutional law requires affirmatively constructing new solutions, the more likely it is to have fragile outcomes that depend on other actors’ support. Moreover, this approach distracts from negotiating and implementing a durable political solution.

At the end of the day, you cannot run a society by court rulings alone. Someone has to build things that work.

Works Cited

1. H.L. McBain, The Law and the Practice of Municipal Home Rule (Columbia University Press, 1916).

2. John Archibald Fairlie, “Municipal Crisis in Ohio,” Michigan Law Review 1, no. 5 (1903).

1. McBain, 85.

2. All history found in: McBain, 85–87.

3. All history in this section found in Fairlie.