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Why
Does Dillon Rule?
Or
Judge John’s Odd Legacy
At
the foot of Main Street in Davenport, Iowa, stands a
Romanesque pillar rising from a memorial fountain
– a monument dedicated to John Forrest Dillon (Dillon
Memorial Fountain). Chief Justice of the Iowa
Supreme Court in the mid-19th century, Dillon is
well-known to Virginia’s politicians as the author
of a legal principle that has governed state and
local relationships in the Commonwealth for more
than 130 years.
Based
on decisions by the Iowa jurist, Dillon’s rule
limits the powers granted to local governments to
those expressly granted by the state, implied by the
state, or essential to a locality. More importantly,
Justice Dillon ruled that if there is any reasonable
doubt whether the state has granted a power to a
locality, then it has not been granted. Simply put,
towns and cities derive their authority from the
state.
Dillon’s
rule provokes controversy even today from detractors
and defenders alike. A regular columnist in this
publication, Douglas Koelemay, argued several years
back that the Dillon rule “continues to bind the
Commonwealth’s ability to respond to the priority
needs of its localities and regions.” (Se "Pull
Down Dillon's Rule," April 14, 2003.)
The
Virginia Chamber of Commerce, on the other hand,
believes the Dillon rule “represents a positive
tradition of legislative oversight” and encourages
economic growth through a consistency in laws
throughout the state. (Virginia
Chamber of Commerce -- Dillon's Rule.)
Local
autonomy vs. uniform laws. The debate goes on. The
jurisdictions in the population centers of Northern
Virginia complain that the Dillon rule restricts
their ability to find new tax revenue sources or
manage growth. Jay Fisette, the chair of the
Arlington County Board of Supervisors, reportedly
complained, “We have to go to the General Assembly
for pretty much everything except to brush our teeth
in the morning,” in a 2001 issue of the Washington
Business Journal.
How
did Dillon’s rule become the standard in the Old
Dominion? The justice’s decisions were definitely
a product of his time. By the 1860s, cities had
become not only inefficient, but corrupt. Graft, in
the form of kickbacks, was rampant for many public
works and public utility projects, including the
railroads. It was the era of “Boss Tweed” and
the Tammany Hall gang who reportedly swindled
between $75 and $200 million from New York City
between 1861 and 1875. (Tammany
Hall and Boss Tweed.)
Dillon
understandably did not trust local government and
wrote, “Those best fitted by their intelligence,
business experience, capacity and moral character”
did not go into local public service. He felt local
government was “unwise and extravagant”
(“Dillon’s Rule,” Clay L. Witt, Virginia
Town and City, August 1989).
It
is a notion that refuses to die, even in the era of
professional city managers and executives. But
actually, the origins of the Dillon rule date
further back to an omission in the U.S.
Constitution. While the document defines the
relationship between the federal government and the
states, it fails to address the relationship between
states and their localities. There may be a good
reason for this oversight. In the agrarian society
of 1789 when the federal Constitution was adopted,
local jurisdictions weren’t really that large.
Before
1820, there were no cities with a population over
50,000 in the U.S., and few provided widespread
services. For example, some local laws in the early
1800s banned animals from running free but did allow
pigs, because they ate the debris in the streets, a
cost-efficient garbage removal service.
(“Dillon’s Rule … And the Birth of Home
Rule,” Diane Lang, The Municipal Reporter,
December 1991).
As
the U.S. transformed from an agrarian to an urban
society in the post-Civil War era, accompanied by a
explosion in European immigration and the new
technologies of the industrial revolution, the
demand for municipal services increased. In the late
19th century cities became responsible for more than
100 new service areas, including education, health
and delinquency (Dillon's
Rule -- A Case Study). Ill equipped to deal with
these changes, cities became the breeding ground for
political machines and corruption.
It
was in this atmosphere that Dillon ruled that cities
and towns should be subservient to the state. Prior
to the widespread adoption of Dillon’s principle,
some jurists had argued that cities and towns
possessed “an inherent right of local
self-government.” They were led by Judge Thomas
Cooley of the Michigan Supreme Court. The two
doctrines vied with each other throughout the 1870s,
until the Dillon rule prevailed.
In
the 1880s, states passed hundreds of laws that
dictated the smallest details in local governance.
As could be expected, there was a backlash. State
legislators found themselves consumed with the
minutiae of governing their towns and cities and
opportunities for corruption moved from the local to
the state arena. The result was a pendulum swing to
the home rule movement, now prevalent in a number of
states today. In home rule states, legislatures
often allow local governments to establish home rule
charters. The downside: citizens and businesses
sometimes have to deal with differing regulations in
thousands of localities within the same state.
While
Virginia is considered one of the stricter Dillon
rule states, a recent study by the Brookings
Institution found that 39 states actually use some
form of the rule to define the power of local
governments (“Is Home Rule the Answer? Clarifying
the Influence of Dillon’s Rule on Growth
Management,” Jess J. Richardson, Jr.; Meghan
Zimmerman Gough and Robert Puentes, The Brookings
Institution Center on Urban and Metropolitan Policy,
January 2003). In relation to managing sprawl, the
study argued that the Dillon rule neither promoted
nor hindered regulation of growth and that
Dillon’s nemesis -- home rule -- could even thwart
regional cooperation.
And
so it goes. Little did Justice Dillon, buried in a
Davenport, Iowa, cemetery for the past 91 years,
realize the conundrum he would create.
NEXT:
From Gristmill to Hydropower: Virginia’s
Dams
--
October 3, 2005
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