The Urgent Need for

Codification of Ordinances in American Municipalities

by CHARLES S. RHYNE President, American Bar Association; General Counsel, National Institute of Municipal Law Officers; Editor, NIMLO MODEL ORDINANCE SERVICE; Author, MUNICIPAL LAW.

THE ROLE OF MODEL ORDINANCE SERVICES IN THE CODIFICATION PROCESS

THE fact is often overlooked that the largest body of law in this country is at the municipal level. Several thousand municipal legislative bodies grind out ordinances which, en masse, affect in minute detail the daily lives of every person in the Nation—assuming, of course, that the thirty per cent of us who do not live in cities at least visit a city at some time. While state legislatures usually meet every two years, city councils meet monthly, weekly or even more often. It is extremely important that this tremendous volume of local legislation be readily available at all times. The simple truth, however, is that it is on the municipal level that most revision and codification work remains to be done. It must be conceded that under the haphazard system in effect in most cities it is now practically impossible to obtain speedy and accurate information as to the status of particular ordinances.

This is indeed a bleak picture, especially when it is remembered that a city, in essence, is nothing but a bundle of legal powers. Everything a city does must find support in law— either from the State Constitution, the state legislature, the charter or ordinances. If any part of this governing legal apparatus is broken down or obsolete, the city cannot possibly function properly.

What are municipalities doing about their greatest need—the need for modernization of worn out legal machinery? On the national and state levels elaborate legislative drafting aids have been provided in recent years to end confusion and conflict in the laws that are adopted. The publication of the United States Code was essential in the federal field to enable the Congress and the people to find out the status of federal laws. On the state level, practically every state now has an up-to-date code of laws and a Legislative Council to supervise its continued modernization. Unfortunately, this situation does not prevail where the volume of legislation is the greatest—in the American city. Cities are, usually, still struggling to "get by" on ancient codes of ordinances designed to solve the problems of an era in municipal life long past. And this, in spite of sweeping economic, industrial, educational and other developments in recent years.

The municipal taxpayer must be made to realize the enormous cost of carelessness and ignorance in the legal machinery of the city. If he could only be brought to appreciate the wasteful drain on local revenues brought about by obsolete ordinances there would be an instantaneous cry for curative action. Time and again I have heard "we can't afford to enact a decent code." But from my long experience in this field I do not believe that a municipality can afford not to codify when the costs are fair and reasonable. No municipality, can afford not to bring order out of chaos insofar as its most important, day-to-day laws are concerned. It does not take extensive examination of municipal developments to realize that cities are only heaping trouble on themselves by allowing their operations to be crippled and frustrated because of utter confusion in their basic law.

It can safely be said that not a single city in our Country has both an up-to-date code and a really workable plan to keep it so. How can a modern city function with any degree of efficiency if its legal machinery, is not geared to reflect modern thinking on planning, zoning and traffic problems? How can a city protect individual rights when the laws it enforces every day have not been adapted to the latest United States Supreme Court and state court decisions on the important civil liberties questions relating to handbills, sound trucks, picketing and countless other subjects? The instances of neglect are legion. Suffice it to say here that a municipality will do well to prepare itself now, by the immediate preparation of a modern, efficient code, for the onslaught in the next ten or twenty years of new and frustrating problems. Just think what effect the rampaging increase in population will have on cities! Just imagine the desperate demand for housing, transportation, police and fire protection and for vastly augmented municipal services of all kinds!

"Most cities still carry on their books ordinances which are obsolete, their reason for being having long ceased to exist, but which so long as they remain unrepealed may at any time give rise to difficulty. Indicating the excellent opportunity afforded by a codification project to clear out archaic ordinances is the Toledo experience of recent years in weeding out some 800 ordinances hanging on from another day. I think it is fair to say that in many cities, because of a complete failure even to keep an accurate, neat account of council action—in many cases copies of ordinances being scattered haphazardly through littered desks and musty, shelves at city hall-no one is in a position to state with any degree of accuracy just what the law is. In some cases, ordinances have been lost entirely. Some municipalities, as a result of the confusion, have reported the embarrassing (and costly for the taxpayers) experience of convicting an alleged violator under a non-existent ordinance or one long repealed!

Fortunately, however, municipalities now have available a "do-it-yourself repair kit" which can help to remake the dilapidated legal machinery. I refer to the many splendid national and state model ordinance services which are proving so valuable in the codification process. When used as companion pieces national and state model ordinance services provide a "package" of codified municipal experience which can be obtained in no other place. The advantage of a national model ordinance service, of course, is that it is nation-wide in scope. It gives the user an appreciation of what cities generally all over this land are doing. The NIMLO Model Ordinance Service has as its governing purpose the preparation of carefully drawn model ordinances which truly, reflect the best in prevailing practice from a national standpoint. The Service aims to let Portland, Maine, know what Hannibal,

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Missouri, and San Diego, California, are doing now that might prove help-ill. Model ordinance services on a state-wide basis, on the other hand, are invaluable in that they are drafted with a careful eye to the particular state constitution and statutes and to governing case law. The state leagues and associations of municipalities which offer the fine model ordinance facilities—from their nerve centers of municipal activity in the state—afford the user an instantaneous awareness of what other cities around the state are doing about a given problem. In addition to the state and national model ordinance services, there are excellent codes and guide provisions being published in such technical fields as building standards, fire prevention, plumbing, electrical installation, heating and ventilation, milk inspection and many, many others.

Model ordinances, of course, must be adapted to meet the specific problem as it exists in a given city. No cities have exactly the same problem fact-wise. It is this "adaptability" feature that determines the worth of a model ordinance service. A model ordinance serves its true purpose when it is so drafted as to lend itself easily to adaptation to meet special needs. That is why we say that model ordinances must be "tailored" or "molded" to fit particular situations. When so used, they can save thousands of research hours a year.

Model ordinance services fill a serious gap in codification aids by giving the draftsman a feel for the coverage which goes to make up an adequate, well-rounded code. A good model ordinance service will show the codifier what ordinances he needs, what ordinances need "freshening up," what language is obsolete, and what other cities, generally, are doing. Draftsmen who rely; on model ordinance services proceed with the comforting knowledge that they are not "going it alone" by attacking a problem in a given manner. A model ordinance service—because it is a "service"— is a continuing feature which moves into new, exploratory problem areas. For that reason it can offer helpful language which, it the draftsman had to create his sections originally from research, would take many, many hours or, in some cases, weeks.

Model ordinances, too, are written to pass muster in the courts. Every precaution is taken lest the user or subscriber be asked to rely on a suggested provision that is not judicially supportable. Municipal attorneys, I know, instinctively feel that a model ordinance which has received the endorsement of a state or national association of municipal officials is one, usually, that he can safely recommend tor adoption by his council.

And not only is it the municipal official who uses model ordinances. Chambers of Commerce and private businessmen, in increasing numbers I find, are seeking model ordinances. Law libraries have awakened with a start to find that the various model ordinance services should have been a part of their facilities all along. State and national associations of the widest affiliation with the field of municipal law are now alert to the fact that they cannot render maximum service to their members without an appreciation of what municipalities are doing in the way of local legislation.

A new, modern municipal code can energize and tone up every nerve in the body of city government. The council is enabled by the code to see clearly the status of existing ordinances and to prepare legislation adapted to the city's needs. Administrative

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CODIFICATION OF ORDINANCES

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officials can quickly determine their powers and duties and thus avoid much of the criticism based upon the charge (and often the fact) that municipal officials do not know exactly what the city ordinances require them to do. The municipal attorney is provided with a ready reference volume which saves him countless hours, previously wasted, in answering the many, questions which come into his office daily. And most of all, the ordinary citizen will know what he can do and cannot do. In short, codification assures us of the best in democracy in action.

The need for codification is clear; the benefits are beyond dispute. Equally certain is the helpful role which model ordinance services play in the codification process. I know of no other common need of cities— other than new revenues—which if satisfied could do so much to modernize and improve the calibre of municipal government in America.

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