Excellent post, thank you! As a YIMBY city planner I hear a lot of talk about shifting some authority over land use back to the states. Certainly many local policies are limiting housing supply but I’m not sure that would work out so well for reasons analogous to what you describe.
Actually, a fair number of the reformers who protested this said they'd be in favor of the state uniformly taking over city powers. The issue was it was all case by case for individual issues, so there was zero lasting change.
Land use back to the states could be very good if done well, or it could go wrong if it's just the state second guessing cities (which is what this history is about).
One of my eastern European friends said, "the difference between western and eastern Europe is that in western Europe you go visit other countries. But in eastern Europe, you stay in your hometown and other countries come visit you."
And that is a worthy photo, if only there were a black and white version.
These sorts of state constitutional provisions are common and remain relevant. In Indiana, for example, the legislature tried to exempt the two largest college towns from a rental fee registration fee cap without naming them, but the State Supreme Court struck it down and imposed the uniform rental fee cap statewide.
Wish I had known that tidbit, I used to live in Bloomington! I know the provisions were common generally (and I was writing about the most dysfunctional applications of them), but am not really sure what the current state of legal doctrine is.
Also, as I understand it, some states went farther and have constitutional rights to home rule over and above bans on special legislation? Fascinating stuff, municipal law is very underrated.
Indiana's special law provision flares up from time to time. Our ban on special laws arose from the state's near-bankruptcy during the canal boom and also includes a no special privileges clause as a corollary.
It's frequently argued in everything from Criminal Justice to professional licensing to smoking bans. The State Supreme Court struck down a muni ordinance exempting riverboat casinos from a smoking ban and ran through the history of the constitutional provision.
The City's economic rationale is also inconsistent with the expressed intent of our founding fathers in adopting the Equal Privileges and Immunities Clause in 1851. It condones a privilege for purchase. The Constitutional Convention of 1850 to 1851 met in the wake of the Panic of 1837 and against a backdrop of state bankruptcy associated with Indiana's efforts to develop its infrastructure, especially canals and railroads, through the issuance of deeply discounted bonds and other special privileges. Collins, 644 N.E.2d at 76. “[A]t the time of the adoption of Section 23 and its ratification as part of the 1851 Indiana Constitution, the principal purpose was to prohibit the state legislature from affirmatively granting any exclusive privilege or immunity involving the state's participation in commercial enterprise.” Id. at 77. One month before introducing Section 23, the author of the provision, Delegate Daniel Read of Monroe County, declared to his fellow delegates that “[m]oney making is not the business of the State.” 1 REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE STATE OF INDIANA 646 (Wm. B. Burford Printing Co.1935) (1850), quoted by Collins, 644 N.E.2d at 76 and Moseley, 643 N.E.2d at 302. He added:
If the State claims a monopoly of any business she inflicts an injury upon her citizens which is little better than downright robbery. If she sells out a monopoly for a bonus, the robbery upon the citizens is ordinarily still worse, as being paid for and sanctified by a right purchased from government.
Id. (emphasis in original). Other delegates voiced similar concerns. Delegate Horace P. Biddle of Cass County stated:
[T]he proposition is a plain one, that there shall be no exclusive monopolies—no privilege granted to one man which shall not, under the same circumstances, belong to all men.... This principle leaves men of capital precisely where it leaves men in their natural condition—equal. If the majority of this Convention will not grant to all men equal rights, let them vote against the proposition.
2 REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE STATE OF INDIANA 1394 (Wm. B. Burford Printing Co.1935) (1850), quoted by Collins, 644 N.E.2d at 76 (emphasis in original). Delegate Othniel L. Clark of Tippecanoe County, while expressing some concern about the effect of the section, voted in favor of it and generally noted that the proposed Equal Privileges and Immunities Clause “provides that if the Legislature grant to one set of persons a privilege, it shall grant the same privilege to all other persons. If they grant a privilege to a corporation, they shall grant the same privilege to all other persons who ask for the privilege.” Id. at 1397, quoted by Collins, 644 N.E.2d at 77. Delegate John B. Niles of LaPorte County added: “Surely no man would take a stand in favor of the opposite doctrine, or be prepared to contend that exclusive privileges ought to be granted.... A time has arrived when ... free competition under equal laws, can meet the demands of the public interest.” Id. at 1394–95 (emphasis added).
Considering the economic rationale put forth in the present case, the City's enactment—granting a special privilege exempting riverboat casinos from the Smoking Ban in return for substantial tax and lease payments and other investments in the city—is akin to Delegate Read's concern. It is tantamount to the government “selling” an exemption from the Smoking Ban for the bonus of anticipated financial benefits while burdening other citizens and snubbing our framers' intent in drafting Article 1, Section 23. This limitation on *1277 government power cannot be evaded on the sole grounds of financial benefit to a city's coffers. Permitting discriminatory special treatment to be so dispensed erases the assurance of Equal Privileges and Immunities guaranteed under our Constitution.
Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1276–77 (Ind. 2014)
A law review article I read before the bar exam also is pretty good:
"Treatise light but impact heavy" is a brilliant description. Not just of municipal law!
The history of generality requirements for corporate privileges is fascinating. When I said there was a backlash against several types of special law, this was of course what I meant.
The generality requirements are the proximate cause of state wildcat banking and the railroad boom, as the states then had to accept all comers for both industries. I hope to write on it.
Excellent post, thank you! As a YIMBY city planner I hear a lot of talk about shifting some authority over land use back to the states. Certainly many local policies are limiting housing supply but I’m not sure that would work out so well for reasons analogous to what you describe.
Actually, a fair number of the reformers who protested this said they'd be in favor of the state uniformly taking over city powers. The issue was it was all case by case for individual issues, so there was zero lasting change.
Land use back to the states could be very good if done well, or it could go wrong if it's just the state second guessing cities (which is what this history is about).
You missed a chance to use this picture
https://www.reddit.com/r/softwaregore/s/bvHpvkRlqn
It’s also interesting that cities outlive states in most cases. Warsaw is 700 years old what it must have changed governments so many times
One of my eastern European friends said, "the difference between western and eastern Europe is that in western Europe you go visit other countries. But in eastern Europe, you stay in your hometown and other countries come visit you."
And that is a worthy photo, if only there were a black and white version.
These sorts of state constitutional provisions are common and remain relevant. In Indiana, for example, the legislature tried to exempt the two largest college towns from a rental fee registration fee cap without naming them, but the State Supreme Court struck it down and imposed the uniform rental fee cap statewide.
https://law.justia.com/cases/indiana/supreme-court/2019/19s-pl-148.html
Wish I had known that tidbit, I used to live in Bloomington! I know the provisions were common generally (and I was writing about the most dysfunctional applications of them), but am not really sure what the current state of legal doctrine is.
Also, as I understand it, some states went farther and have constitutional rights to home rule over and above bans on special legislation? Fascinating stuff, municipal law is very underrated.
Muni law is treatise-light but impact heavy.
Indiana's special law provision flares up from time to time. Our ban on special laws arose from the state's near-bankruptcy during the canal boom and also includes a no special privileges clause as a corollary.
It's frequently argued in everything from Criminal Justice to professional licensing to smoking bans. The State Supreme Court struck down a muni ordinance exempting riverboat casinos from a smoking ban and ran through the history of the constitutional provision.
The City's economic rationale is also inconsistent with the expressed intent of our founding fathers in adopting the Equal Privileges and Immunities Clause in 1851. It condones a privilege for purchase. The Constitutional Convention of 1850 to 1851 met in the wake of the Panic of 1837 and against a backdrop of state bankruptcy associated with Indiana's efforts to develop its infrastructure, especially canals and railroads, through the issuance of deeply discounted bonds and other special privileges. Collins, 644 N.E.2d at 76. “[A]t the time of the adoption of Section 23 and its ratification as part of the 1851 Indiana Constitution, the principal purpose was to prohibit the state legislature from affirmatively granting any exclusive privilege or immunity involving the state's participation in commercial enterprise.” Id. at 77. One month before introducing Section 23, the author of the provision, Delegate Daniel Read of Monroe County, declared to his fellow delegates that “[m]oney making is not the business of the State.” 1 REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE STATE OF INDIANA 646 (Wm. B. Burford Printing Co.1935) (1850), quoted by Collins, 644 N.E.2d at 76 and Moseley, 643 N.E.2d at 302. He added:
If the State claims a monopoly of any business she inflicts an injury upon her citizens which is little better than downright robbery. If she sells out a monopoly for a bonus, the robbery upon the citizens is ordinarily still worse, as being paid for and sanctified by a right purchased from government.
Id. (emphasis in original). Other delegates voiced similar concerns. Delegate Horace P. Biddle of Cass County stated:
[T]he proposition is a plain one, that there shall be no exclusive monopolies—no privilege granted to one man which shall not, under the same circumstances, belong to all men.... This principle leaves men of capital precisely where it leaves men in their natural condition—equal. If the majority of this Convention will not grant to all men equal rights, let them vote against the proposition.
2 REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE STATE OF INDIANA 1394 (Wm. B. Burford Printing Co.1935) (1850), quoted by Collins, 644 N.E.2d at 76 (emphasis in original). Delegate Othniel L. Clark of Tippecanoe County, while expressing some concern about the effect of the section, voted in favor of it and generally noted that the proposed Equal Privileges and Immunities Clause “provides that if the Legislature grant to one set of persons a privilege, it shall grant the same privilege to all other persons. If they grant a privilege to a corporation, they shall grant the same privilege to all other persons who ask for the privilege.” Id. at 1397, quoted by Collins, 644 N.E.2d at 77. Delegate John B. Niles of LaPorte County added: “Surely no man would take a stand in favor of the opposite doctrine, or be prepared to contend that exclusive privileges ought to be granted.... A time has arrived when ... free competition under equal laws, can meet the demands of the public interest.” Id. at 1394–95 (emphasis added).
Considering the economic rationale put forth in the present case, the City's enactment—granting a special privilege exempting riverboat casinos from the Smoking Ban in return for substantial tax and lease payments and other investments in the city—is akin to Delegate Read's concern. It is tantamount to the government “selling” an exemption from the Smoking Ban for the bonus of anticipated financial benefits while burdening other citizens and snubbing our framers' intent in drafting Article 1, Section 23. This limitation on *1277 government power cannot be evaded on the sole grounds of financial benefit to a city's coffers. Permitting discriminatory special treatment to be so dispensed erases the assurance of Equal Privileges and Immunities guaranteed under our Constitution.
Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1276–77 (Ind. 2014)
A law review article I read before the bar exam also is pretty good:
https://mckinneylaw.iu.edu/practice/law-reviews/ilr/pdf/vol37p929.pdf
"Treatise light but impact heavy" is a brilliant description. Not just of municipal law!
The history of generality requirements for corporate privileges is fascinating. When I said there was a backlash against several types of special law, this was of course what I meant.
The generality requirements are the proximate cause of state wildcat banking and the railroad boom, as the states then had to accept all comers for both industries. I hope to write on it.