FIFTEENTH CONSTITUTIONAL
CONVENTION

...tives. Presumably a reduction in the size of the House would cut this time to something under twenty minutes. The Constitution now provides that a roll call shall be taken "upon motion made by any one member."

This makes possible a kind of filibuster, where one representative can unreasonably delay the proceedings of the House by demanding successive roll calls on every vote taken.

It is important that the Constitution guarantee the right to a roll call, so that people can learn how their representatives voted on important issues. This guarantee should not allow one member to capriciously disrupt the business of the House. The 1850 Convention proposed that no roll call could be demanded by fewer than ten members of the House. It was such a drastic increase that it was overwhelmingly rejected by the voters.

Our proposal is much more modest. We believe that a motion for a roll call should be seconded. This would still make it easy to obtain a roll call while eliminating the possible abuse of this right by one individual. We recommend, therefore, that Article 24, Part II be amended by inserting the words "duly seconded," after the word "member" in the fifth Iine thereof, so that the article as amended shall read as follows:

[Art. 24.] The journals of the proceedings, and all public acts of both houses, of the legislature, shall be printed and published immediately after every adjournment of prorogation; and upon motion made by any one member, duly seconded, the yeas and nays, upon any question, shall be entered, on the journal; and any member of the senate, or house of representatives, shall have a right, on motion made at the time for that purpose to have his protest, or dissent, with the reasons, against any vote, resolve, or bill passed, entered on the journal.

GREATER HOME RULES FOR CITIES AND TOWNS

The principle of local self-government is older than our constitution itself. Even before Magna Carta (1215) some cities and towns in England had been allowed by custom or charter to manage their local affairs. Many of the colonists who came to America were familiar with the tradition, but only in New England did towns develop for a time as more or less self-governing communities. But local self-government was not destined to out-live the Seventeenth Century, even in New England. In Great Britain, Parliament has been supreme since 1689, and after the American Revolution its powers over local government in the United States passed to the state legislatures.

It is not surprising, then, that there is so much popular misunderstanding about the legal and political status of towns and cities. To its own citizens a New Hampshire community may still seem to be a "little republic" entitled to the same autonomy in local matters that the states enjoy in our federal union. But the lawyer, the judge, and the legislator know better. Local governments do not enjoy the same semi-sovereign relationship to the state that it enjoys with respect to the national government. Legally, in fact, they are mere creatures of the state and may be not only created but altered or abolished at its will. This is true not only in New Hampshire but in all other states as well. "In the absence of state constitutional provisions safeguarding it to them," the U. S. Supreme Court has ruled, "municipalities have no inherent right of self-government which is beyond the legislative control of the state. A municipality is merely a department of the state, and the state may withhold, grant, or withdraw powers and privileges as it sees fit." City of Trenton v. New Jersey, 262 U. S. 182 (1923). Some authorities go so far as to say that even the legislature may not lawfully grant municipal corporations the right to adapt or to alter their own charters unless the constitution authorizes it. Where this rule prevails, a municipality is restricted to whatever choice of charters the legislature is willing to provide by general or special law. (37 Am. Jur. Mun. Corps. s 19).

Fortunately for municipalities, not every state legislature has taken such a restrictive view of its authority to delegate its control over local government. In well over half of the states, in fact, at least some cities and other local governments have been granted some measure of what has come to be called home rule. In five states home rule rests solely on the authority of the legislature; in at least twenty-four others it is guaranteed by the constitution. Whatever the source, home rule provisions vary widely from state to state and sometimes even from community to community within a state. In some states the legislature is merely forbidden to interfere in matters of essential local concern. In others each city is granted what purports to be full authority to manage its own affairs within the limits of general law applicable to all cities, but in practice their authority has usually been quite strictly construed by the courts.

For a state which until recently had made no specific provision for home rule, New Hampshire has allowed its smaller communities more local self-government than might be expected. By general law every town is declared to be a "body corporate and politic", and authorized to sue and be sued in the courts, to purchase, hold, and sell property, to adopt by-laws for at least ten purposes, and to appropriate money for at least 38 specified purposes. Towns may also, if they choose, hire a manager, form village districts for a number of purposes, and make a special committee responsible for preparing the town budget. [page 23] Under a new law enacted in 1961, a town may even abandon the historic town meeting in which all voters are allowed to take active part in favor of one in which only elected representatives participate (RSA 40-A 1:12).

Our cities are much more dependent upon the legislature, and vulnerable Io its interference in essentially local affairs. No town may be incorporated as a city except by special act of the legislature, and until 1963 no city was allowed to frame and adopt or even alter its own charter even if it chose the council-manager plan provided by general law (RSA 45). In the 1963 session, before the new optional charter law (RSA 49-A) went into effect, the legislature had to consider thirteen bills calling for a change in the charter of seven different cities. Two of the bills provided whole new charters, another merely provided that notice of a special meeting of the mayor and aldermen might be "sent by certified mail" and not "delivered" as before.

Nor can a city be sure that its control over some vital function will not be taken away and placed in the hands of some state agency. In no less than seven of our thirteen cities - Berlin, Claremont, Laconia, Manchester, Nashua, Portsmouth, and Somersworth - control over the police was placed in the hands of a commission appointed by, and answerable to, the Governor and council, and in Manchester so was control over finances. On occasion the legislature has singled out one class of municipal employees for favored treatment in full knowledge of the fact that any added expense would be borne by the city, not the state. In Manchester, for example, the policemen were first placed on a five-day week in 1951, and, as the result of a special law enacted in 1963, they are to be paid $1.87 1/2 per hour extra for policing the polls on election day. At least twelve of the bills introduced in the House in 1963 called for an increase in the salary of one or more officials in particular cities. It is only fair to point out however, that the cities themselves are largely to blame. Often, the salary increase has been sponsored by the city's own delegation in the House. Under a recent law, moreover, a city can easily prevent legislative interference with its salary structure by delegating the responsibility for setting salaries to its governing bodY (RSA 44:9-a) To its credit, the legislature has shown no reluctance so far to approve such a change in the city charters.

Part of the problem outlined above will no doubt be met by the home rule law enacted in the 1963 legislature (Laws, 1963, Ch. 275). No longer is it necessary for a city to get the legislature to approve every change in its charter. If it is willing to accept either of the two model charters outlined in the law or to borrow provisions from the charter of some other city it may do so without getting the legislature's approval (RSA 49-A). Moreover, the seven cities with state police commissions have been given an opportunity to get rid of them, if a majority of the voters in a city approve, responsibility for appointing the commission will rest with the mayor and council (Laws, 1963, Ch. 275:3 12).

But two dangers still remain. First, the legislature may still try to subject a city to restrictions in its charter which do not apply to cities generally. (It must be remembered that municipalities cannot invoke the constitutional guarantee, federal and state, available to private persons and to business corporations). Second, despite their increased opportunity for home rule under the 1963 Statute, cities may continue out of habit to bring their charter problems to the legislature, and even if they do not, special interest groups are almost sure to do so. In either event, the result would be that the legislature will still have to consider the merits of dozens of local bills each session. Not only has the legislature all it can do to consider bills of more general concern; it is not likely to give careful consideration to local bills in which so few members are interested. This is a bad arrangement, not only for the city or town but for the legislature.

We recommend, therefore, that an article be added to the Bill of Rights forbidding the legislature to change the charter of any city without its consent. A few states forbid all special legislation where municipalities are concerned. We do not believe it is neCeSSarY to go so far. There may be occasions when it is in the interest of a municipality for the legislature to deal with it by special law. But where a change is proposed in the city's charter, it is only right, as our legislature has already acknowledged, that the people themselves approve the change.

In 1956 the convention considered and only narrowly defeated a much more restrictive proposal. Under this resolution the legislature would have been forbidden to pass a special law affecting in any way a particular community, town or city, without its approval. We believe, however, that the problem is largely confined to city charters and can be met by the following simple amendment to be added at the end of Part 1 our Bill of Rights:

[Art. 39.] No law changing the charter of form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters of such city or town upon a referendum to be provided for in said law.

The legislature may by general law authorize cities and towns to adopt or amend their charters or forms of government in any way which is not in conflict with the general law, provided that such charters or amendments shall become effective only upon approval of the voters of each such city or town on a referendum.

[page 24]

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