USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume III > Part 11
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pays their county expenses, and they vote for county officers in both Suffolk and Middlesex? The Superior Court for Suffolk County, the Municipal Court of the City of Boston, the East-Boston District Court, the municipal court for the Charlestown district, and the municipal court of the South-Boston district, moreover, have concurrent criminal juris- diction over a part of Hingham and over Hull (set off from Suffolk to Plymouth county in 1803), and over the islands in the lower harbor, as well as over a large water area (Publ. St., 202, 409, 856). By implica- tion this jurisdiction is held to extend, in a measure, to the Boston police force, which is an executive body (Rules and Reg. of Police Department, 1889, p. 12).
The jurisdiction of Boston includes the harbor as far as Lovell's island; a certain joint jurisdiction goes farther, and includes a part of Plymouth county. Chelsea, Revere and Winthrop, on the other hand, are nominally in Suffolk county, but virtually in Middlesex county as well. The jurisdiction of the lower law courts is concurrent along the boundary lines of their respective districts (Publ. St., ch. 154, s. 50); and where the counties of Suffolk and Middlesex are separated by the Charles river, the counties have concurrent jurisdiction over the river (1794, ch. 31; Publ. St., ch. 22, s. 11). The rights and duties of Suffolk county, then, are extremely complicated, and not always clearly defined. But Boston alone among all the municipalities in the Commonwealth exercises all the powers a county and city can exercise in Massachusetts; and this advantage was obtained by the two acts of 1822, which made Boston a city. No other city in the State has like advantages. Boston had fought for this unique position in Colony and Province times, and from the very beginning it had shown generous hospitality to the government offices of Massachusetts. This hospitality continues; for the court house of Suffolk county is main- tained by the city of Boston and is the home of the Supreme Court for the Commonwealth. Accordingly the proud capital still repays the privilege conferred upon it in 1822. It has always been the capital, and it has never failed to discharge the duties of a capital. Some of these duties it has discharged with munificence, and since 1822 it has not asked for favors.
ADMINISTRATION OF JUSTICE.
The reason why the administration of justice, during the later years of the town, was so unsatisfactory, is twofold. In the first place, the
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justices of the peace could not command public confidence ; their courts were almost private, and they lived on fees. Far more serious and annoying was the fact that the court of sessions, which consisted of justices of the peace, had large administrative powers, especially in county matters. This was remedied by the act of 1822 (1821, ch. 109). The police court then established consisted of three competent judges, who inherited the criminal jurisdiction of the sessions and the justices of the peace, and also, as a justices' court, the entire civil jurisdiction of the justices of the peace. The town court, which had existed since 1814, was merged in the Court of Common Pleas for the Commonwealth, in 1821. The municipal court, established in 1800, remained-since 1843 as a branch of the Common Pleas-until 1859, when it was merged in the Superior Court, as was the Superior Court of the County of Suffolk, that had been established in 1855 (ch. 449). The Superior Court, then, established in 1859, was the heir of the Superior Court of Suffolk County, of the Municipal Court, of the Court of Common Pleas, and, indirectly, of the town court. Under the amended Constitution (am. 19) the clerks of the Supreme and Superior courts for Suffolk county have been elected by the people since 1855. The police court of 1822, and its civil branch, the justices' court, were merged, in 1866, in the Municipal Court of the City of Boston (1866, ch. 2+9). At first its judges were paid by the Commonwealth ; but its clerks were elected by the voters of Boston. The clerks are now appointed by the State, and the judges are paid by the city. The court has given great satis- faction, but was established before the great annexations took place.
Boston had a prosecuting attorney as early as 1800; and he was elected by the people (199, ch. 81, sec. 4). In 1807 his appointment was vested in the State, and for obvious reasons the offices of town and county attorney were united when Boston, in 1822, assumed all expenses of Suffolk County (1821, ch. 104). In 1855, in an age that had limited wisdom and unlimited courage, the attorney-general and all district at- torneys were made elective officers, the district attorney being chosen triennially by the voters in Suffolk county (Mass. Const., am. 12, 19; St. 1893, ch. 417, sec. 250). But a prosecuting officer is clearly a branch of the executive, not of the judiciary. For this reason he should be ap- pointed by, and responsible to, the executive head. For purely execu- tive purposes, and as counsel, the city established a law department in 1821, the head of the department being called city solicitor, who had an assistant, from 1839 to 1844, called city attorney. In 1881 the office
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of corporation counsel was established, the city solicitor being his asso- ciate. Unfortunately the opinions of this law department are not pub- lished, except incidentally. But the city has been well advised in the law, and the law courts in Boston, down to the lowest, are above re- proach. The judges have been learned in the law, very faithful, and in the full possession of public confidence. The city of Boston votes higher salaries than does the General Court. The country appears to oppose salaries above a certain conventional point, and may boast that it has not failed in securing both talent and integrity, particularly in the administration of justice. The judiciary is the only branch of govern- ment in the United States that has escaped general distrust.
In consequence of annexations to the city, its municipal court, as es- tablished in 1866, would have proved insufficient, had it been required to serve the enlarged community. Like its predecessor it had but three judges; now it has five. The police court at Chelsea had been estab- lished in 1855 (1855, ch. 26); in 1874 the municipal court of the East- Boston district, with jurisdiction over Winthrop, was established, and became the East-Boston district court in 1886 (1874, ch. 211; 1846, ch. 240; 1886, ch. 15); the municipal court of the South-Boston district was established in 1844 (1844, ch. 211; 1876, ch. 240). This relieved the municipal court of the city of Boston, the jurisdiction of which is limited, since 1876, to the peninsula proper, or wards 6-12 and 16-18. When Roxbury was annexed, in 1868, its police court was retained, and is now known as the municipal court of the Roxbury district (1862, ch. 359; 1846, ch. 240). In 1870, soon after annexation, the municipal court at Dorchester was established (1870, ch. 333). When Charles- town was annexed, in 1814, its police court became the municipal court of the Charlestown district (1873, ch. 286, sec. 4), and in the same year the municipal courts in the West-Roxbury and the Brighton district were established (1824, ch. 211; 1876. ch. 240). So there are nine municipal courts in Suffolk County, and eight in Boston. They have jurisdiction of civil causes involving not above a thousand dollars, and of crimes under the degree of felony, where a prosecution by informa- tion or indictment is not required (Publ. St., ch. 154; St. 1893, ch. 396). Owing to the uniformity of the law, and to the authority of the higher courts, but especially in consequence of the character of the justices who have summary power, the municipal courts have worked well. The Probate Court, inherited from the earliest time of the Province, now also a court of insolvency, is a county court in the best sense. It
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still acts under the interesting law of 1818 (ch. 190); but since 1858 the register of probate is elected quinquennially by the people (1893. ch. 41%, s. 252).
THE CHARTER.
The first city government of Boston was organized on May 1, 1822. The mayor, the eight aldermen, and the common council were im- pressed with the idea, that town government was a great blessing, and that a city was intended to be as nearly like a town as possible. "As far as practicable," Mr. Quincy tells us, "the customs and forms to which the citizens had been familiarized under the government of the town, were adopted " (Quincy, Mun. Hist., 44). The same prejudice, for such it was, runs through the charter of 1822. . The administration of police, the executive powers of the city, and all the powers previously vested in the selectmen, whether by law, by town vote, or by prescrip- tion, were given to the board of mayor and aldermen (1821, ch. 110, sec. 13), and all other powers previously exercised by the town were vested in the two branches of the city council, to be exercised by con- current vote, each branch having a negative upon the other (1. c., sec. 15). The mayor was to nominate all officers whose appointment de- pended on the aldermen (sec. 21), and he could summon the city coun- cil or either branch to hear his recommendations (sec. 12); but he was to be no more and no less than the chairman of the city board of select- men, with strict orders to be a vigilant and useful inspector. The real The same power of administration was lodged with the aldermen.
principle still adorns the statute book of Massachusetts. City conn- cils have the power of towns, "the mayor and aldermen shall have the powers and be subject to the liabilities of selectmen " (Publ. Stat., ch. 28, sec. 2). The intention of the charter was that the city should be governed like a town, or that a representative democracy should follow the precedents of a self-governing democracy. But the difference between a simple democracy and representative democracy is radical.
The powers vested in a town are not defined, save in particular in- stances. Neither are the powers of selectmen. It appears that select- men are chosen for a definite period of time; but their powers are indefinite (see 1893, ch. 423, sec. 6-9), and subject to orders issued by the town meeting, which is the town government. A selectman is an agent; a board of selectmen is not a government. The mayor of a city
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and the members of a city council are not the agents, but the members of a government. Selectmen are the agents of a government; the mayor and city council are themselves a government. Public opinion shrinks from this conclusion, and likes to urge that cities are mere cor- porations, but not a government. In truth, the mayor and city council of Boston are a real government, not wholly unlike that of either the State or the United States. All three have limited powers; but within the limits prescribed by law each government has very great powers. A selectman is constantly subject to new orders from the town meeting ; a city government is not, although the Boston charter of 1822 retained the semblance of general meetings giving instructions to the city gov- ernment (1821, ch. 110, sec. 26). The orders of a town meeting are binding upon the selectmen; the "instructions " of a Faneuil-Hall meeting are not binding upon the city government. It was an illusion to retain these meetings. It is an illusion to say that aldermen have the power of selectmen. It is an illusion to think that a town govern- ment and a city government can be similar. Being a representative government, with distributed power, the government of the city of Boston resembles that of the United States rather than that of a Massa- chusetts town. A town government is the very ideal of self-governing democracy acting for itself, issuing orders, and supervising its agents; a representative government is not a real democracy, but a sort of democratic aristocracy, on the theory that the democracy will choose the best men to conduct the government business. A town meeting is democracy with government power exercised by the many; represent- ative democracy is the power of the many transferred to the few. The
charter of 1822 made this transfer, but failed in the proper distribution of the power transferred. It separated the judiciary from the executive and legislative branches; and this separation entitles the charter to permanent respect. The charter erred in not separating the legislative and executive officers of the city government, and in not establishing a system of checks and balances, which is the very essence of represent- ative government. Without a sharp separation of powers, and without a full system of checks and balances, a representative government might be a tyranny. Democracy, as the town meeting well knows, holds all municipal power. When the town surrenders the direct exer- cise of this power, when simple democracy becomes representative democracy, full municipal power is not given to one person, nor to one body, but is carefully divided, lest the government be despotic. Under
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a wise separation and distribution of power, the legislative authority of the municipality is vested in a body composed of two branches, each having the negative upon the other, lest there be hasty ordinances, hasty loans, hasty appropriations, hasty action. The executive power is vested elsewhere, lest the laws of the city fail of impartial, fearless, and prompt execution.
The charter of 1822 did not make this necessary separation ; it vested in the aldermen full legislative and executive power, while establishing a figure head called the mayor, whom the public might blame when the aldermen did not govern well. As great executive power was vested in the eight aldermen, the forty-eight members of the common council were pardonably jealous, and tried to secure a part of the ad- ministrative power. When the aldermen consented to a government by committees, the common council came very near exercising execu- tive power through the joint committees of the two legislative branches. The charter itself gave the city council power to elect all officers not otherwise provided for, and this power was used freely (1. c., sec. 16). Nor is it wrong that a government branch or board or officer should exercise all power within lawful reach. The result was that as late as 1881 Mayor Prince declared the functions of the mayor, in the inaugura- tion of civic measures, to be "merely advisory " (Inaug. Addr., p. 8). He might have added that his executive powers were chiefly advisory, and that city councils were reasonably unwilling to take advice. Why should they seek advice? It is as safe to trust one's own judgment as to follow other men's advice. The fault was not with the city council, to whom it is usually charged, but with the charter of 1822. That instrument lodged all municipal power in the city council, and instead of creating an executive officer, the equal and rival of the city council, made the mayor the chairman of the aldermen, without any veto power beyond his vote. At the same time he was made a member of the school committee, and not even its chairman, except by courtesy. The "care, custody, and management of all the property of the city " was expressly vested in the city council (1821, ch. 110, sec. 16) In a word, the charter of 1822 transferred the power of the municipality to the city council, except the judiciary, and a few matters, like the fire- wards, the overseers of the poor, and the care of the public schools. The only remedy left with the people was a refusal to re-elect members of the government that had proved unsatisfactory. Beyond this the city council had almost unlimited municipal power, and one marvels
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that this power of creating taxes and debts was not used more extrav- agantly than the records disclose. One marvels at the ability and fidelity of the several city councils. One wonders that the city ever escaped a great scandal in its municipal affairs. It was not the virtue of the charter that saved the city government from disgrace. On the whole, the city councils and their committees were better than the charter, and did better than the charter required. For the charter almost invited misgovernment. It established irresponsibility, and yet the city was not totally misgoverned.
THE PUBLIC SCHOOLS.
Easily the most interesting of all our municipal institutions are the public schools, not only for the lavish support they have from the tax levy, but also for the position they occupy in our system of govern- ment. The schools are entirely supported from taxes, and now con- sume, speaking roughly, about one-fifth of the annual tax. No ex- pense for schools seems too high in the estimation of the people, and an attempt to reduce teachers' salaries, or to delay the erection of new schoolhouses, or to reduce the work of the schools, excites popular indignation. At the same time the schools retain the traditional government by committee. And the more popular they became, the more they drifted away from the general city government. The city council votes a gross sum for schools; the school committee expends the money, and has entire charge of the schools, including, since 1889, the erection and repair of all school buildings. The mayor of the city, however, has a limited veto power over all school-committee votes involving the expenditure of money (1885, 266, sec. 10), and his ap- proval of contracts involving $2,000 or more, is required (1890, 418, sec. 6). But the civil-service law of the State does not apply. The laborers and clerks employed by the city must first pass an examination conducted by the State, while the teachers in our schools are entirely under the control of the school committee.
The charter of 1822 vested the care and superintendence of the pub- lic schools in a board of twenty-one persons consisting of the mayor, the eight aldermen, and one person in each of the twelve wards chosen at the annual city election. As the aldermen were overwhelmed with all sorts of duties, many of them purely administrative, they were relieved of their school work in 1835. The law of that year (ch. 128),
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adopted by the people on April 29, 1835, vested the management of the schools in a school committee of twenty-six persons, including the mayor, the president of the common council, and two persons from each of the twelve wards chosen annually by the people. The common council was jealous of the executive power exercised by the aldermen, and the new arrangement, such as it was, appears to have been a con- cession. But this school committee dealt with the grammar schools, the primary schools being left to the care of the self-perpetuating primary school committee established in 1818, and continued until 1854. The city built its first primary school house in 1835. Even so great a man as the elder Mayor Quincy rejoiced when the establishment of a girls' highschool was prevented (Mun. Hist., 216-225, 269-271). He seemed happy that the girls' highschool had not been revived in 1851. Yet when the first examination for admission to the girls' high- school was held in 1826, the number of applicants was two hundred and eighty-six. In other words, the school system was imperfect, and the school government irregular in fact as well as in law (Mayor Bige- low's inaug. address, 1850, p. 5; city docs. of 1852, no. 22).
This irregularity was removed by the city charter of 1854, which incidentally abolished the primary school committee, and placed the care and management of the public schools under a committee of seventy-four persons, consisting of the mayor, the president of the common council, and six persons from each of the twelve wards, chosen by the people. These specially-elected members of the school commit- tee were chosen for three years, being the first departure from the ancient habit of returning public officers once a year to the people. Not only were these members of the school committee chosen by wards, but they must be inhabitants of the wards that chose them. The ques- tion whether aldermen and members of the school committee should be chosen by wards, or by the city at large, has been much discussed. The critics usually prefer the arrangement that has not been made. As long as the city was relatively compact, that is, before the annexa- tions from 1868 to 1874, a certain community of interests existed which justified general popular votes for general officers. Yet this principle was in part abandoned as early as 1799, to the satisfaction of the people. The school committee established in 1854 certainly gave satisfaction, and unified the school department. The primary school committee, with its 199 members,-one to each primary school,-was discontinued, and an attempt was made to give the schools an executive
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head, by the title of superintendent. The first superintendent of schools was appointed in 1851; but he is still the mere clerk of the school committee. The principle of dividing legislative and administrative functions as to the public schools was not considered in 1854, and has not been established since.
This fact, that the schools needed an executive head, and the annex- ations of the suburbs to 1844, occasioned the law of May 19, 1875 (ch. 241), which still controls. This law continued the mayor as chairman of the school committee, as if to maintain some connection between the public schools and city hall; occasionally the mayor would serve as chairman of some sub-committee appointed from the general school committee. The latter consisted, beside the mayor, of twenty-four members, eight being chosen annually to serve three years. They are chosen by the voters of the city at large, and in 1829 the right to vote for members of the school committee was given to women substantially on the same conditions as the male voters must comply with. The law of 1885, ch. 266, wisely excluded the mayor from the school commit- tee, which thus consists of twenty-four persons elected by the people at large, under a generous suffrage, the constitutional amendment of 1891 having swept away the payment of a tax as a prerequisite of voting. All American citizens at least twenty-one years of age, not paupers, able to read the Constitution of Massachusetts in English and to write their names, who have lived a year in Massachusetts, and six months in Boston, who are duly registered as voters, may now vote for the Boston school committee (1893, ch. 412, sec. 13, 14). While the pos- sible number of voters for school committee is now (in 1893) about 200,000, the actual number has never approached 100,000. At the city election of 1888, when the largest number of citizens voted, the total was only 63,548 men and 19,490 women. At the city election of 1892 the number of municipal voters was 68,447 men and 9,510 women.
The expense for schools, disbursed by the school committee, is about two million dollars a year. Nominally the expense was as high in the first year after the great annexations. Theoretically the school com- mittee is the product of a suffrage that cannot be more liberal, unless . aliens and minors be included. The school committee of twenty-four persons can discharge teachers and other servants at pleasure. It may engage them on its own conditions, except that janitors and persons having charge of boilers are supplied by the civil-service commissioners
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of the Commonwealth. For executive officers the school committee has a board of one superintendent and six supervisors, who may ex- amine and report, but cannot really order or act, their power over prin- cipals being specially limited. Yet the vast establishment has never been tainted by party politics; owing in part to the high salaries of- fered, the school committee, itself unpaid, has secured instructors and other officers of the best character; and the schools have the enthusi- astic support of the people. From time to time the general city gov- ernment has been assailed by public opinion; the school committee has not. The organisation of the city government has been condemned ; the organisation of the schools and their government is scarcely a sub- ject of discussion, much less of criticism. The system may be theo- retically wrong ; it has worked to the general satisfaction of the people who pay the bills. The establishment shows that even a defective law may be well administered, and the school committee itself is the best illustration of American adaptability and of unselfish citizenship de- voted to the public service.
FIRE DEPARTMENT.
The charter of 1822, in establishing the city of Boston as a municipal corporation, vested its government in the mayor and city council, the school committee, the overseers of the poor, and the firewards, respect- ively. The firewards had existed for more than a century, and under the law of 1211 were appointed by the selectmen and the justices. Ever since 1745 they were elected by the people, and the city charter of 18 ?? (sec. 19) required that three or more firewards be chosen in each of the twelve wards. A fireward was in command at fires, and could require any person to obey. The term is still used (Publ. Stat., 264), a fire engineer having the authority of a fireward. At the same time, the firewards had a certain authority over buildings and explosives. The appearance of dozens of commanders at a fire may be imagined. A petty conflict of opinion between the fire companies and the elder Quincy led to the appointment of a chief engineer, in 1826, and to the repeal of the law requiring the election of firewards (see the law of June 18, 1825, adopted by the people on July 25, 1825). Mayor Quincy's Municipal History tells the story in detail; but the real point is the establishment of an executive officer to take command at fires. That office still ex- ists. When Mayor Quincy retired, he reported the department to con- sist of "twelve hundred men and officers" (Mun. Hist., 264); the re-
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