The Doctrine of an Inherent Right of Local Self-Government. The Extent of Its Application by American Courts

“…from the historical examination of this subject, it becomes manifest that local self-government of the municipality does not spring from nor exist by virtue of written constitutions; that it is not a mere privilege, conferred by the central authority, but that the people in each municipality exercise their franchises under the protection of the fundamental principles just indicated, which were not questioned or doubted when the state constitutions were adopted, and which in the opinion of Judge Cooley and other eminent American jurists, no power in the state can legally disregard.”

“Therefore, it appears clear that in a government in which the legislative power of the state is not omnipotent, and in which it is axiomatic that local self-government is not a mere privilege, but a matter of absolute political right, the existence of unlimited authority in the law making body to concentrate all the powers of local government in the state does not exist”

“When we find how municipal incorporations arose in England, how our forefathers fell into it naturally, upon reaching these shores, without authority other than their own self-asserted authority, how legislatures acknowledged that these self- incorporated towns were valid corporations, we are in a position to realize how utterly erroneous is the doctrine that only the king can incorporate, that towns are only the creatures of the state and are subject to its uncontrolled will, in the absence of express provisions to the contrary in the Constitution. Municipal incorporation is not the exercise of a power emanating from King, Parliament or Legislature-the gift of a superior to an inferior. It was the result of the evolution of local rights and liberties as between the inhabitants of a manor and its lord, . . . The rights of municipal corporations therefore are not subject to the uncontrolled and uncontrollable will of the legislature any more than any other fundamental Anglo-Saxon rights, and local self- government itself cannot be interfered with by the legislature even if the state constitution be silent on the subject, reserving always to the legislature power over all general legislation and power to mould the exercise of town power when requested by a town itself.”

McBain, Howard Lee. “The Doctrine of an Inherent Right of Local Self-Government. I. The Extent of Its Application by American Courts.” Columbia Law Review, vol. 16, no. 3, 1916, pp. 190–216. JSTOR, www.jstor.org/stable/1110684.