Nice & Curious Questions

Edwin S. Clay III and Patricia Bangs


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













About "Nice & Curious"


In 1691, a group of English wits, calling themselves the Athenian Society, founded a publication entitled, "The Athenian Gazette or Causical Mercury, Resolving All the Most Nice and Curious Questions proposed by the Ingenious." The editors accepted questions posed by readers on any and all topics, and sought the most ingenious answers.


Inspired by their example, Edwin S. Clay III, president of the Virginia Library Association and Director of the Fairfax County Public Library, created an occasional column on Virginia facts that may require "ingenious answers" of the type favored by those 17th-century wags.


If you have a query, e-mail him at ec[email protected].


Fairfax County Public Library staff Patricia Bangs, Lois Kirkpatrick and MaryAnn Sheehan assist in the writing, editing and research of the column.