Dillon’s Rule and Home Rule: The History Behind the Two Prevailing Views on the Powers of Local Government and What That Looks Like in Alabama

Photo Credit: https://www.flickr.com/photos/courthouselover/32964751866 (last visited May 31, 2020).

Written By: Tayler Hansford
Member, American Journal of Trial Advocacy

          Perhaps one of the most unknown, yet very controversial topics in law and local government is the amount of power county, city, and town (“local”) governments should be given to govern their respective areas.  The amount of power local governments hold largely depends on how the state in which the local government sits views the power structure of state and local government. Like most things in law, politics, and life, there are two prevailing viewpoints to this issue; some states give their local governments broad authority, while other states give their local governments narrower authority in order to reserve more power.  This blog post seeks to shed a light on the two prevailing views of the powers of local government by discussing the history and construction of the viewpoints commonly known as the “Dillon’s Rule” and the “Home Rule.”

          Judge John Forrest Dillon served on the Iowa Supreme Court from 1862 to 1868 before he was nominated as a Circuit Judge to the newly formed Eighth Circuit by President Ulysses S. Grant.[1]  Judge Dillon wrote extensively on municipal governments, and he published five editions of his groundbreaking book, Dillon on the Law of Municipal Corporations.[2] However, before serving on the federal bench and making waves with the influential Municipal Corporations, Judge Dillon began forming his rule on the powers of local governments as a justice on the Iowa Supreme Court.[3]

          The “Dillon’s Rule” arose from City of Clinton v. Cedar Rapids Missouri River Railroad Co.[4]  In City of Clinton, the plaintiff, the City of Clinton, sought to enjoin the defendant, Railroad Company (“Cedar Rapids”), from building railroad tracks across the city’s streets without the city’s consent.[5] The Iowa legislature gave Cedar Rapids permission to build a railroad which would travel through the city.[6]  The city, however, claimed that, through its charter, it was given “exclusive control of the streets.”[7]  The court held that the city could not prevent Cedar Rapids from building over the streets of the city because the Iowa legislature granted Cedar Rapids the right to do so.[8]  Judge Dillon, in conclusion, wrote:

Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.[9]

Thus, Dillon’s Rule was born, and Cedar Rapids could build their railroad through the City of Clinton without the city’s permission.

            In the 152 years since City of Clinton, Dillon’s Rule still adheres to the three general “tenets [that] have become a cornerstone of American municipal law.”[10]  They are (1) “[a] municipal corporation can exercise only the powers explicitly granted to them[,]” (2) “[t]hose necessarily or fairly implied in or incident to the powers expressly granted[,]” and (3) “[t]hose essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.”[11]  States are not uniform in the level of powers their constitutions give to local governments, but, under Dillon’s Rule, “if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred.”[12]  This 152 year-old rule is still the majority rule in the United States.[13]

          To understand the “Home Rule” in America, one must first understand the Cooley Doctrine.  Contrary to Judge Dillon’s view, the Cooley Doctrine gained traction in America thanks to Judge Thomas Cooley of the Michigan Supreme Court.  Judge Cooley, like Judge Dillon, was a prolific writer and legal scholar.  While in the private practice sector in Michigan, Judge Cooley wrote extensive attacks against slavery.[14]  In the 1850s, Judge Cooley focused his writing attention towards the law.[15]  Specifically, the publications that Judge Cooley is best known for are his treatises on U.S. Constitutional Law.[16]  In 1864, Judge Cooley was elected to the Michigan Supreme Court, he served his state until President Grover Cleveland nominated him to the Interstate Commerce Commission in 1885.[17]  Judge Cooley lived an interesting career and held many titles; however, his most influential work for the powers of local government came from his time on the Michigan Supreme Court.

          In a concurring opinion in 1871, Judge Cooley challenged Dillon’s Rule.[18]  In People v. Hurlbut, the court was tasked to determined whether the state government could appoint local government officials.[19]  In the concurrence, Judge Cooley challenged Dillon’s Rule by stating, “[t]he state may mould local institutions according to its views of policy or expediency; but local government is a matter of absolute right; and the state cannot take it away.”[20]  In other words, Judge Cooley believed “local governments have a right to exist, function, and appoint or elect their own officers in accordance with their own wishes.”[21]  This notion that states “cannot ultimately regard [local governments] as mere creations of the state”[22] is in stark contrast to Judge Dillon’s view that “the state is like God breathing life into the [local government], which is likened to Adam.”[23]  Thus, the modern Home Rule stems from the Cooley Doctrine.[24]

          In 1891, the United States Supreme Court intervened in the issue of the competing Dillon’s Rule and the Cooley Doctrine.[25]  In Merrill v. Town of Monticello,[26] the Supreme Court favorably quoted Judge Dillon’s Municipal Corporations.[27]  The issue in Merrill was whether the Town of Monticello had the legal authority to sell bonds.[28]  After quoting Judge Dillon’s work, the Court held, “whether a municipal corporation possesses the power to borrow money, and to issue negotiable securities therefor, depends upon a true construction of its charter, and the legislation of the state applicable to it.”[29]  Therefore, Monticello could only sell the bonds if the state gave the town the power to do so.

          In 1907, the United States Supreme Court again examined the issue of the powers of local government as they relate to the powers of the state government in Hunter v. City of Pittsburgh.[30] The Pennsylvania General Assembly passed an act consolidating the cities of Pennsylvania and Allegheny if a majority of the two cities voted in favor of doing so.[31]  While a majority of the residents of the two cities voted in favor of consolidation, a majority of the residents of Allegheny voted against consolidation.[32]  The Court stated:

Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them . . . . The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state.[33]

          The local governments were created by the state with the state conferring all of their powers to them, “[t]he state, therefore, at its pleasure . . . may modify or withdraw all such powers.”[34]  In reconciling the power struggle between state and local government, the Court went on to state, “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.”[35]  Therefore, it was determined that local communities only exist at the pleasure of the state. Thus, Dillon’s Rule became the law of the land.

          Even though the United States Constitution does not confer, the Cooley Doctrine, or in other words, an inherent right for local governments to exist, the idea that local governments should be given broader powers is alive and well.  The modern Home Rule arose from the idea which “is a delegation of power from the state to its [local governments] . . . . That power is limited to specific fields, and subject to constant judicial interpretation, but home rule creates local autonomy and limits the degree of state interference in local affairs.”[36]  This “local autonomy” allows “local governments to respond effectively to local conditions.”[37]  However, under Dillon’s Rule, the  autonomy of local governments was “severely limited.”[38]  As a result, “many states began to adopt ‘home rule’ provisions in the early 1900s that conferred greater authority to their local governments.”[39]

          Perhaps greater local autonomy is a good thing.  For instance, Alabama is widely viewed as a Dillon’s Rule state.  When it comes to the powers of local government in Alabama, “the grant of power is contained in the Constitution or is delegated by the Alabama State Legislature by law.”[40]  Although commonly called a Dillon’s Rule state, the more proper term for Alabama likely would be “‘limited home rule.’”[41]  The limited qualifier in Alabama is attributed to the fact that the Alabama Constitution significantly limits Home Rule.[42]  However, for counties, Alabama applies strict Dillon’s Rule.  Therefore, anytime a county wants to do something in Alabama, they must go to the state legislature and lobby for a local law.  Often, this results in constitutional amendments.  Over the years, Alabama has added amendments to its constitution so that counties like Limestone can “dispose of dead farm animals” and Etowah can keep their flea markets open on Sundays.[43]  According, to the Alabama Policy Institute, these local amendments play a role in Alabama’s Constitution being the longest in the world.[44]  With Home Rule, the Alabama legislature would not need to be bogged down with local concerns like doing away with dead farm animals or flea markets staying open on Sundays.  Perhaps greater autonomy for local governments would be beneficial to Alabama.

[1] Fed. Jud. Cent.: Hist. of the Fed. Judiciary, https://www.fjc.gov/node/1380056 (last visited May 29, 2020).

[2] See Patty Cafferata & Reynolds Cafferata, The Dillon and Cafferata Family: Practicing Law for Over 151 Years, Nev. Law., Sept. 2003 at 20 (discussing the Dillon family history in the legal world).

[3] See id. (Judge Dillon served on the bench for six years and was C.J. for his last two.).

[4] 24 Iowa 455, 455 (Iowa 1868).

[5] City of Clinton, 24 Iowaat 464.

[6] See id. at 466 (quoting the special conferring permission).

[7] Id. at 469.

[8] Id.

[9] Id. at 475.

[10] Local Government Authority, Nat’l League of Cities: Build Skills & Networking, https://web.archive.org/web/20160804131854/http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority (last visited May 29, 2020).

[11] Id.

[12] Id.

[13] See id. (stating that thirty-nine states apply Dillon’s Rule to all forms of local governments while eight states apply Dillon’s Rule only to some forms of local governments).

[14] Thomas M Cooley, Mich. L.: Hist. & Traditions, http://www.law.umich.edu/historyandtraditions/faculty/Faculty_Lists/Alpha_Faculty/Pages/Cooley_ThomasM.aspx (last visited May 29, 2020).

[15] Id.

[16] Id.

[17] Id.

[18] People v. Hurlbut, 24 Mich. 44, 93 (Mich. 1871) (Cooley, J., concurring).

[19] Id. at 53.

[20] Id. at 108.

[21] Phil Campbell, Home Rule, The Distributist Rev.: Politics (May 2, 2020), https://distributistreview.com/archive/home-rule.

[22] Id.

[23] Id. (comparing the relationship of state and local government under Dillon’s Rule to God’s relationship with man).

[24] See Marc Clauson, Home Rule or Dillon Rule? Meaning and Purpose for Effective Local Government, Constituting Am., https://constitutingamerica.org/home-rule-or-dillon-rule-meaning-and-purpose-for-effective-local-government-guest-essayist-marc-clauson/ (“The idea of Home Rule for cities arose out of the Cooley Doctrine.”).

[25] See generally, Merrill v. Town of Monticello, 138 U.S. 673, 673 (1891) (delivering an opinion on whether a town had authority under the state laws “to issue for sale I open market negotiable securities in the forms of the bonds and coupons on which recover” was sought).

[26] Id.

[27] Id. at 681.

[28] Id.

[29] Id. at 682.

[30] 207 U.S. 161, 161 (1907).

[31] Hunter, 207 U.S. at 174.

[32] Id. at 175.

[33] Id. at 178.

[34] Id.

[35] Id. at 179.

[36] NLC Report: Dillon’s Law Versus Home Rule, N.H. Mun. Ass’n, https://www.nhmunicipal.org/town-city-article/nlc-report-dillon%E2%80%99s-law-versus-home-rule (last visited June 29, 2020).

[37] Id.

[38] Id.

[39] Id.

[40] Albert P. Brewer, Home Rule, Encyc. of Ala., http://www.encyclopediaofalabama.org/article/h-1153 (last visited May 30, 2020).

[41] Id.

[42] Id.

[43] See id. (citing to the respective amendment and acts that allowed such counties authority to “engage in the desired activities”).

[44] Home Rule in Alabama, Ala. Pol’y Inst., https://www.alabamapolicy.org/research/home-rule-in-alabama/ (last visited May 30, 2020).

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