Abstract
Even as judges expanded the right to demand an accounting to people other than a member of a corporation, legal theorists proposed new definitions of the powers and authority of incorporated municipalities. Two conflicting theories of municipal government authority emerged in the 1870s: the treatises of judges John F. Dillon and Thomas M. Cooley. Dillon’s theory of subordination to a state legislature and Cooley’s that there is an inherent right of local self-government reflected the different experiences of young lawyers in distinctive parts of the Middle West (Iowa and Michigan). Over time, however, the two men’s views tended to converge toward a view that was essentially Dillon’s. The complexities of managing growing communities led both men, and their followers, to distrust the unchecked power of municipalities to run their own affairs.
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Notes
- 1.
Lucius P. Allen, editor, The History of Clinton County, Iowa (Chicago: Western Publishing Co., 1879), pp. 492–494; The City of Clinton v. The Cedar Rapids and Missouri River Railroad, 24 Iowa 455 (Iowa Supreme Court, 1868).
- 2.
Historiographic interest in Dillon and Cooley has faded, is essentially limited to legal history scholars, and has focused largely on their Constitutional and business jurisprudence and tended to see them as primarily protectors of business interests; see, for example, Clyde E. Jacobs, Law Writers and the Courts. The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law (Berkeley: University of California Press, 1954) pp. 23–63. Kunal M. Parker, “Context in History and Law: A Study of the Late Nineteenth-Century American Jurisprudence of Custom,” Law and History Review, Vol. 24, No. 3 (Fall, 2006), pp. 473–518, emphasizes both jurists’ interest in the custom, common law, and the history behind the legal issues they confronted, while Paul D. Carrington, “The Constitutional Law Scholarship of Thomas McIntyre Cooley,” The American Journal of Legal History, Vol. 41, No. 3 (July 1997), pp. 368–399 and “Law as ‘The Common Thoughts of Men’: The Law-Teaching and Judging of Thomas McIntyre Cooley,” Stanford Law Review, Vol. 49, No. 3 (Feb., 1997), pp. 495–546, argue for Cooley as a Jacksonian Democrat. David J. Barron, “The Promise of Cooley’s City: Traces of Local Constitutionalism,” University of Pennsylvania Law Review, Vol. 147, No. 3 (Jan., 1999), pp. 487–612, focuses on Cooley’s public purpose theory and constitutional theory with respect to local government; Joan C. Williams, “The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law,” Wisconsin Law Review (1986), pp. 83–153, especially pp. 90–100, focuses on Dillon’s laissez-faire, pro-business jurisprudence.
- 3.
Merriam v. Moody’s Executors, 25 Iowa 163 at 170 (Iowa Supreme Court, 1868); Thomas Cooley, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown & Co., 2nd edition, 1871; first published 1868), p. 189; Hanson et al. v. Vernon et al., 27 Iowa 28 (Iowa Supreme Court, 1869); People ex rel. Detroit and Howell Railroad v. Salem Township Board, 20 Mich. 452 (Michigan Supreme Court, 1870).
- 4.
Edward H. Stiles, “Judge John F. Dillon,” Annals of Iowa, (3rd Series) Vol. IX, No. 1 (April, 1909), p. 1; John F. Dillon, “Letter,” Davenport Democrat, Oct. 1850; Dillon to Prof. George F. Jenkins, M.D., Feb. 1, 1907, cited in Stiles, “Judge John F. Dillon,” p. 3.
- 5.
J. C. Knowlton, “Thomas McIntyre Cooley,” Michigan Law Review, Vol. V. No. 5 (March, 1907), pp. 310, 311, 312, 314.
- 6.
Thomas M. Cooley, Treatise on the Constitutional Limitations, pp. 169–172, 182, 189–193, 355. In a footnote on p. 190, Cooley quoted New Hampshire Supreme Court of Judicature Chief Justice Samuel Dana Bell: “It seems to be generally conceded that powers of local legislation may be granted to cities, towns, and other municipal corporations … which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among us many of our most valuable institutions,” State v. Noyes, 10 Fost. (N.H.) 292 (New Hampshire Superior Court of Judicature, 1859). He then listed seventeen other decisions from eleven other states, including Iowa, that made the same point.
- 7.
Clark, Dodge & Co. v. The City of Davenport, 14 Iowa 494 at 498 (Iowa Supreme Court, 1863); The City of Davenport v. The Mississippi and Missouri Railroad Co., 16 Iowa 348 at 366 (Iowa Supreme Court, 1864); The City of Des Moines v. Layman, 21 Iowa 153 at 158 (Iowa Supreme Court, 1866).
- 8.
Merriam v. Moody’s Executors at 170, 174.
- 9.
Allen, The History of Clinton County, pp. 489, 493; Clinton v. Cedar Rapids and Missouri at 455, 464, 465.
- 10.
Clinton v. Cedar Rapids and Missouri at 469, 470. Dillon did not mention the 1867 amendment to the Cedar Rapids and Missouri charter that more directly dictated how the plug connection was to operate, perhaps because it seemed too obviously an interference by the legislature in commerce. Ironically, a critical test of the scope of the right of way act was a lawsuit in which residents of Cedar Rapids challenged that city’s grant of a right of way to the C, I, and N. The Iowa Supreme court upheld the city’s power to grant the right of way in that case.
- 11.
Ibid., at 470–471 (emphasis in the original), 474, 476, 477.
- 12.
Ibid., at 483, 484, 485–486.
- 13.
Ibid., at 475, 479. There is a tendency to conflate Dillon’s ruling in the Clinton case that cities are subordinate to the state legislature with the Rule itself; see, for example, John G. Grumm and Russell D. Murphy, “Dillon’s Rule Reconsidered.” The Annals of the American Academy of Political and Social Science, Vol. 416, Intergovernmental Relations in America Today (Nov., 1974), p. 121, no. 3; Michael E. Libonati, “Intergovernmental Relations in State Constitutional Law: A Historical Overview,” The Annals of the American Academy of Political and Social Science, Vol. 496, State Constitutions in a Federal System (Mar., 1988), p. 113; and Ann O’M. Bowman and Richard C. Kearney, “Second-Order Devolution: Data and Doubt,” Publius, Vol. 41, No. 4, The States as Facilitators or Obstructionists of Local Government (Fall 2011), p. 566.
- 14.
Cooley, Constitutional Limitations, p. 193.
- 15.
People ex rel. Henry H. Le Roy and others v. Chauncey S. Hurlbut et al.; Same v. William Barclay et al.; Same v. John Owen et al., 24 Mich. 44 (Michigan Supreme Court, 1871) at 44, 76. 108; Stephen D. Bingham, Michigan Biographies (Lansing, MI: Michigan Historical Commission, 1924) p. 55.
- 16.
Le Roy v. Hurlbut at 107, 109.Cooley expanded on his historical argument in Constitutional Limitations with references to Massachusetts, New Jersey, and Rhode Island town formation, and a new description of a Connecticut where “the several settlements originated their own governments … the central government was later.” He noted that Vermonters “conducted all their public affairs in towns and plantations … by general consent and approbation” and “without any other organization” before the state was admitted to the Union, and cited Thomas Jefferson’s argument for dividing Virginia counties into smaller, self-governing communities because “[t]hese little republics would be the main strength of the great one,” Ibid., at 100–102.
- 17.
Ibid., at 108.
- 18.
John Joseph Wallis, “Constitutions, Corporations, and Corruption: American States and Constitutional Change, 1842 to 1852,” The Journal of Economic History, Vol. 65, No. 1 (Mar., 2005), pp. 216 n. 12, 230. Michigan Constitution of 1850, Article XIV, Section 9; A. Riley Crittenden, A History of the Township and Village of Howell, Michigan (Howell, Mich.: Livingston Tidings Press, 1911) p. 83; Detroit and Howell Railroad v. Salem Township at 452.
- 19.
Cooley, Constitutional Limitations, pp. 335, 479–522; Alan Jones. “Thomas M. Cooley and the Michigan Supreme Court: 1865–1885,” The American Journal of Legal History, Vol. 10, No. 2 (April 1966). pp. 102–103, 106; Harriette May Dilla, “The Politics of Michigan, 1865–1878,” Studies in History, Economics, and Public Law, edited by the Faculty of Political Science of Columbia University, Vol. 47 (1912) pp. 108–128.
- 20.
Detroit and Howell Railroad v. Salem at 293 citing Diamond v. Lawrence County, 37 Penn. St., 353 (Supreme Court of Pennsylvania, 1861); Hanson et al. v. Vernon, at 33.
- 21.
Hanson et al. v. Vernon, at 36, 40, 43 (emphases in the original).
- 22.
“Local Taxation in Aid of Railroads and Other Improvements,” The American Law Register, Vol. 19, No. 4 (April 1871) pp. 267–268; Stewart v. Board of Supervisors of Polk County 30 Iowa 9 at 17(Iowa Supreme Court, 1870); Talcott v. Township of Pine Grove, 1 Flippin 144 (U.S. Circuit Court, 1871) upheld in Township of Pine Grove v. Talcott 86 U.S. (19 Wall.) 666; C.A. Kent, “Municipal Subscriptions and Taxation in Aid of Railroads,” The American Law Register, Vol. 18, No. 11, (Nov. 1870), p. 652; “S.T.”, “Municipal Subscriptions and Taxation in Aid of Railroads,” Ibid., pp. 662, 664.
- 23.
Hopkins and Others v. City of Richmond, and Coleman v. Town of Ashland, 117 Va. 692; 86 S.E. 139 (Virginia Supreme Court, 1915); Richmond, Fredericksburg and Potomac Railroad v. City of Richmond, 145 Va 225 at 238; 133 S.E. 800 at 804 (Virginia Supreme Court, 1926); Dillon, The Law of Municipal Corporations (2nd edition) (New York: James Cockcroft and Co, 1873) pp. 173. (emphasis added by Dillon), 176. Dillon’s Rule is the standard for statutory interpretation of municipal power in Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Virginia, West Virginia, Washington, Wisconsin, and Wyoming. A 1968 amendment to Iowa’s Constitution, which granted home rule to incorporated municipalities, says, “The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this State.” Iowa Constitution. Art. III, Sec. 38A.
- 24.
“Address,” The News-Herald (Hillsboro, Ohio) March 29, 1894.
References
The City of Clinton v. The Cedar Rapids and Missouri River Railroad, 24 Iowa 455 (Iowa Supreme Court, 1868).
The City of Davenport v. The Mississippi and Missouri Railroad Co., 16 Iowa 348 at 366 (Iowa Supreme Court, 1864).
The City of Des Moines v. Layman, 21 Iowa 153 at 158 (Iowa Supreme Court, 1866).
Clark, Dodge & Co. v The City of Davenport, 14 Iowa 494 at 498 (Iowa Supreme Court, 1863).
Diamond v. Lawrence County, 37 Penn. St., 353. (Supreme Court of Pennsylvania, 1861).
Hanson et al. v. Vernon et al., 27 Iowa 28 (Iowa Supreme Court, 1869).
Hopkins and Others v. City of Richmond, and Coleman v. Town of Ashland, 117 Va. 692; 86 S.E. 139 (Virginia Supreme Court, 1915).
Merriam v. Moody’s Executors, 25 Iowa 163 at 170 (Iowa Supreme Court, 1868).
People ex rel. Detroit and Howell Railroad v. Salem Township Board, 20 Mich. 452 (Michigan Supreme Court, 1870).
People ex rel. Henry H. Le Roy and others v. Chauncey S. Hurlbut et al; Same v. William Barclay et al.; Same v. John Owen et al., 24 Mich. 44 (Michigan Supreme Court, 1871).
Richmond, Fredericksburg and Potomac Railroad v. City of Richmond, 145 Va 225 at 238; 133 S.E. 800 at 804 (Virginia Supreme Court, 1926).
Stewart v. Board of Supervisors of Polk County 30 Iowa 9 at 17 (Iowa Supreme Court, 1870).
Talcott v. Township of Pine Grove, 1 Flippin 144 (U.S. Circuit Court, 1871).
Township of Pine Grove v. Talcott 86 U.S. (19 Wall.) 666.
“Local Taxation in Aid of Railroads and Other Improvements,” The American Law Register, Vol. 19, No. 4 (April 1871) pp. 267–268.
Allen, Lucius P., ed. The History of Clinton County, Iowa. Chicago: Western Publishing Co., 1879.
Barron, David J. The Promise of Cooley’s City: Traces of Local Constitutionalism. University of Pennsylvania Law Review 147, no. 3 (Jan., 1999): 487–612.
Bingham, Stephen D. Michigan Biographies. Lansing, MI: Michigan Historical Commission, 1924.
Bowman, Ann O’M., and Richard C. Kearney. Second-Order Devolution: Data and Doubt. Publius 41, no. 4, The States as Facilitators or Obstructionists of Local Government (Fall 2011): 563–585.
Carrington, Paul D. The Constitutional Law Scholarship of Thomas McIntyre Cooley. The American Journal of Legal History 41, no. 3 (July 1997): 368–399 and Law as ‘The Common Thoughts of Men’: The Law-Teaching and Judging of Thomas McIntyre Cooley. Stanford Law Review 49, no. 3 (Feb. 1997): 495–546.
Cooley, Thomas. A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union. Boston: Little, Brown & Co., 2nd ed., 1871; first published 1868.
Crittenden, A. Riley. A History of the Township and Village of Howell, Michigan. Howell, MI: Livingston Tidings Press, 1911.
Dilla, Harriette May. The Politics of Michigan, 1865–1878. Studies in History, Economics, and Public Law, edited by the Faculty of Political Science of Columbia University 47 (1912): 108–128.
Dillon, John Forrest. The Law of Municipal Corporations (2nd ed.). New York: James Cockcroft and Co., 1873.
Grumm, John G., and Russell D. Murphy. Dillon’s Rule Reconsidered. The Annals of the American Academy of Political and Social Science 416, Intergovernmental Relations in America Today (Nov. 1974): 102–132.
Jacobs, Clyde E. Law Writers and the Courts. The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law. Berkeley: University of California Press, 1954.
Jones, Alan. Thomas M. Cooley and the Michigan Supreme Court: 1865–1885. The American Journal of Legal History 10, no. 2 (April 1966): 97–121.
Kent, C.A. Municipal Subscriptions and Taxation in Aid of Railroads. The American Law Register 18, no. 11 (Nov. 1870): 652.
Knowlton, J. C. Thomas McIntyre Cooley. Michigan Law Review V, no. 5 (March 1907): 309–325.
Libonati, Michael E. Intergovernmental Relations in State Constitutional Law: A Historical Overview. The Annals of the American Academy of Political and Social Science 496, State Constitutions in a Federal System (Mar. 1988): 107–166.
Parker, Kunal M. Context in History and Law: A Study of the Late Nineteenth-Century American Jurisprudence of Custom. Law and History Review 24, no. 3 (Fall, 2006): 473–518.
“S.T.”, “Municipal Subscriptions and Taxation in Aid of Railroads,” Ibid., pp. 662–664.
Stiles, Edward H. Judge John F. Dillon. Annals of Iowa (3rd Series) IX, no. 1 (Apr. 1909): 1–12.
Wallis, John Joseph. Constitutions, Corporations, and Corruption: American States and Constitutional Change, 1842 to 1852. The Journal of Economic History 65, no. 1 (Mar. 2005): 211–256.
Williams, Joan C. The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law. Wisconsin Law Review (1986): 83–153.
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Ress, D. (2018). Community as Corporation. In: Municipal Accountability in the American Age of Reform. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-68258-7_4
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