Dillon’s Law
The inescapable reason why state legislatures were the first stop in reforming the Gilded Age industrial city was something called Dillon’s Law. For those unfamiliar with “Dillon’s Law”[1] are brief explanation might be helpful. Dillon’s Law is not a fifties TV show, but an Iowa Supreme Court decision, which, for a variety of reasons, was adopted by nearly all other states. The decision by Iowa’s Charles Dillon wound up setting a precedent for decisions in other state courts and in short order hardened into an informal national precedent.
According to Dillon’s Law, the states are preeminent over local government in that in the American constitution, states and federal government alone possess sovereignty or the inherent legal right of existence. The American Constitution did not mention cities except to leave them to the States. Cities, counties and towns, not possessing sovereignty—and thus enjoying no legal status– must be authorized, created and empowered by the state if they are to exist, and function. States to facilitate city-building usually issued “special” charters for each jurisdiction the state allowed. Legally, states included in each charter key elements of the municipal corporation Form of government, for instance, was, in the early years, restricted to some form of a weak mayor-Jeffersonian government.
Dillon’s rule applied a very wide definition of state powers over sub-state governments. According to Dillon’s Law any delegated powers to a sub-state unit of government must be expressed literally in words or “fairly applied or indispensable to powers expressly granted”. Sub-state jurisdictions, as a sweeping generalization, simply could not assume they have the right to take action or initiative in any matter without the state expressly allowing it. In a nutshell, the city could not approve structural reform of its government without state legislative approval.
Frug asserts that Dillon’s decision was a forerunner of the Progressive Movement in that “a critical impediment to the development of a government dedicated to the public goods was the intermingling of public and private sectors”. His decision, in some measure, was an adverse reaction to the recent federal involvement in transcontinental railroad infrastructure—resulting, of course in Credit Mobile which was ongoing at the time of his decision and his writing of his classic work. “By merging public and private spheres, cities had extravagantly invested in private businesses performing functions ‘better left to private enterprise’”[2]. If Frug is correct, Dillon’s Law is an element of latter phases in “gifts clauses” which made more difficult to establish public/private EDOs and which separated private parties from use of public powers, such as eminent domain. The State and state courts were intended to be checks to both private control of government powers, and government abuse of private property.
Dillon’s Law was confirmed by a 1907 federal Supreme Court decision, Hunter versus Pittsburgh. Hunter v. Pittsburgh stated (in part) that Dillon’s Rule was binding on all states and cities unless the state enacted specific legislation to modify Dillon’s Rule.
The State … at its pleasure may modify or withdraw all [city] powers, may take without compensation [city] property … expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the [municipal] corporation. All this may be done … with or without the consent of its citizens, or even against their protest …. the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.[3]
The Hunter ruling succinctly upheld that all sub-state jurisdictions, no matter their size, are merely “creatures of the state“. That is the law of the land today. Thirty nine states[4] have since incorporated Dillon’s rule into their state constitution—Hunter v. Pittsburgh made Dillon’s law the “default”, so if not included in the state constitution a state must follow Dillon’s Law anyway.
[1] John F. Dillon was a noted jurist specializing in state -local relationships. His Municipal Corporations (1872) is still a cornerstone book of municipal law. “Municipal corporations (which include cities, towns and villages) owe their origin to, and derive their powers and rights wholly from the (state) legislature. It breathes into them the breath of life, without which they cannot exist“. Dillon’s decision contrasted with “the Cooley Doctrine” which stressed a degree of municipal independence and self-determination which passed into obscurity. Today, the reader can visit a fountain memorial to Judge Dillon in Davenport Iowa. While I never discuss predictions, especially about the future, I will mention that Justice Dillon’s nephew, a certain Charles Dillon Stengel, now better known as “Casey” Stengel, will be a former Yankee, and even later in the future will be the first New York Met manager.
[2] Gerald E. Frug, City-Making, op. cit., pp. 46-47.
[3] Hunter v. City of Pittsburgh, 207 U.S. 161, 178-179 (1907).
[4] Including those which have subsequently passed home rule and modified Dillon’s Law a bit.
Ron W. Coan 