Fuente: Ministerio de Hacienda
The text that is published is an excerpt from the work “History of Spanish Municipalism”, by Enrique Orduña Rebollo (Iustel, Madrid, 2005). The author analyzes the development of municipalism in the different periods that occur after the Ominous Decade. Thus, it studies, successively, the period of transition that opens between 1833 and 1836, the municipality in the Constitution of 1837, in the one of 1845, in the esparterista biennium, in the final period of Isabel II and in the Constitution of 1869.
V. THE MUNICIPALITIES BETWEEN PROGRESS AND MODERANTISM
A) 1833-1836. A transition period
The end of the constitutional triennium in 1823 marked the return to fernandino absolutism that lasted for a decade, until 1833. After the first third of the nineteenth century and the beginning of the path towards the normality of the constitutional state, the municipality acquires a leading role that will oscillate between the two vertices of Spanish politics, progressive and moderate. However, in those years of transition from authoritarianism to a system of greater freedoms and in which the political and institutional model was not yet clearly defined, the Municipality was going through critical circumstances, halfway between the Old Regime periclitado in the autumn of 1833 and the entry into new times under the constitutional sign, which took a long time to become reality.
The Royal Statute and the rules of arrangement of the Town Councils
In January 1834, Martinez de la Rosa formed a Government and in just under three months, with Burgos and Garelly, the Royal Statute was drafted, which was sanctioned by the Queen Governor on April 10, 1834. The Statute, despite all its limitations and to treat a moderate solution, opened a very remarkable possibilities for political development that contrasted with its original lack of definition, do not forget that under its validity until the summer of 1836 succeeded governments of various trends, in which provisions were promulgated of great importance as the first Law of Forced Expropriation, or the most radical of the ecclesiastical Confiscation.
By Royal Decree of November 10, 1833, the Governing Queen commissioned Javier de Burgos a bill on the Organization of the Town Councils. The Royal Decree was accompanied by an Instruction for the Intendants to remind the City Councils that the elections had to be held before January 1, 1834. Although the electoral procedure did not change, it was clear that in the future it was the Provincial peripheral administration and not the Administration of Justice competent in these matters.
Two years later, the Spanish municipalities, demanded a reform accompanied by the policy that was gradually imposed in the country. In this context we must place the Royal Decree of July 23, 1835 for the provisional arrangement of the City Councils of the Kingdom. Without reaching the rank of law it collects with a sometimes archaic terminology, the most important principles of the municipal structure, organization, nature of the offices, elections, attributions and obligations of the mayor, of the lieutenants of mayor and of the City council, sessions and officials . In Title I fixed the population indexes to constitute City Councils, guaranteeing the existence that the less than one hundred neighbors who wish to continue being Town Halls would be maintained, but opening the possibility that those who did not get such a figure would be grouped with others nearby. Likewise, all newly created City Councils had this minimum limitation to constitute themselves, almost half of the one thousand souls provided for in the Constitution of 1812. In Article 6, it was provided that all trades were freely chosen, all “alienated” being eliminated. in perpetuity or for life, or provided temporarily by means of mercy, that were annexed to the City Councils “. The term of office of the mayor and the common prosecutor was two years and four years for the aldermen, partially renewing every two years.
The electoral body was made up of all Spaniards, over twenty-five years of age, with four years of residence in the province and at least two in the town, who paid a fixed contribution from various activities, provided that the income subject to the tax was superior to that of a day laborer. It included tenants, settlers, partitions and emphyteutas in the same terms. To be elected a member of the City Council, the same requirements as the voters were required, as well as being able to read and write and be included in the lists of the largest taxpayers, with a reference to article 18 that provided for the obligatory nature of the municipal offices to fall between one tenth of the voters who were the largest contributors.
The mayors were the authorities in charge of the immediate government of the towns under the dependence of the go civilian police The relationship of their competences reached 19 epigraphs such as, publish and enforce the rules, convene and preside over the City Council, protection of security and property, public order, public health, urban police, fire prevention, registration of births, weddings and deaths, inspection and control of municipal employees and economic affairs, executing agreements, submitting budgets to the Governor for approval, proposals for works, creation or suspension of public establishments, sale, exchange of common lands, etc. . The City Council would meet once a week and the attendance of its members was mandatory. The sessions were secret, except those corresponding to enlistment and raffles for military service. The agreements were taken by majority vote, in the event of a tie the vote was repeated and lastly he decided the vote of the one presiding, recording the name of the president, the aldermen and the votes disagreeing with the majority in the minutes. ) The Municipality in the Constitution of 1837 The Constitution of 1837, promulgated on June 26, was prepared by the Constitutional Courts of 1836, in principle was reduced to a revision of the Constitution of Cadiz, but this time the regulation of local life Spanish lacks the breadth observed in the Constitution of 1812. Only three articles consists of Title XI “Of provincial councils and municipalities, corresponding to articles 69 to 71, which were approved without discussion. Its content provided that “For the internal government of the towns there will be town halls, appointed by the neighbors to whom the law grants this right” and “The law will determine the organization and functions of the provincial councils and the town halls”. treatment that a problem of this dimension is given in the text. According to Adolfo Posada: “You could not say less, nor could you give less constitutional importance to the organization of the local regime” (Evolution …, page 156). This conception of the Municipality throughout the nineteenth century and part of the twentieth, will be a point of friction between progressives and moderates. Even within the census system, the fact that “for the internal government of the towns” the Town Councils were named by the neighbors was an important advance. True that only determined that voters were those who the law recognized such a right, but it is also clear that when referring to the internal government of the people, the Constitution was recognizing the existence of areas of their own powers not delegated.Approved the Constitution, On February 3, 1838, the Government presented to the Cortes a bill on “Organization of town halls”, evidently of a centralizing tendency, supplemented by the project on “Attributions of town halls”. The pretense was to separate the deliberative powers of the executives, or what they called the advisory administration and the active administration. Consequently the deliberations corresponded to the Plenary of the Corporation and the executives to the mayor, in his double condition of agents of the central power and in charge of the internal government of the towns. The appointment of mayors and lieutenants, once the elections were carried out, corresponded to the chief policy for the smaller municipalities of 3,000 neighbors and the Minister of the Interior for the others. Governmental interventionism was manifestly attributed to the political leader the possibility of suspending City Councils for “just and gubernatorially proven reasons”, since it was forbidden to City Councils the deliberations that were not “of their peculiar institute and not specifically in the attributions to be pointed out … ” Both projects did not prosper.a) A doctrinal debate: the alleged French influence in the Municipal Law While the moderates won without difficulty the legislative elections, it did not happen the same with the Town Councils, because in the premises of November 1839, the progressives won in most of the urban centers, circumstance that was going to produce later confrontations with the Government, tending, as we said, to a permanent interventionism on the Municipalities. Then came the question of French influence on municipal legislation at the time. In this regard, Manuel Agustín Silvela, with a moderate ideology, made a study with the intention that it would serve the deputies who, at the end of 1839 and the beginning of 1840, would discuss a project of local regime. The reference he makes to the French texts is evident and his consideration regarding the degree of perfection of the French Administration is equally high, for which he recommended resorting to it, although taking precautions, since “presenting the picture of the French Administration is not to pretend that all of it is copied; it’s not wanting to adopt absolut amente the system (and on this we make formal protest) without addressing what may be unique in our needs, uses and customs “(SILVELA, Collection …, XXXVI). He made a call about the presence of the doctrine Spanish in the institutions, so that the undeniable influence of the French doctrine on municipal power, reflected in two models, the most democratic and decentralizing of the decrees of December 1789 or the Napoleonic of 28 Pluvioso of year 8 (19) February 1800), the centralizing principles of Jacobinism, were tempered by the inclusion of other concepts, which had their origin in the Spanish tradition including the reforms of Carlos III. Don José Posada Herrera shone in the doctrinal controversy, when In his lessons he makes a comparative synthesis of the French municipal organization and its historical evolution. In France the municipal freedoms were taken by the people to the king and maintained in front of the central power. The deprivation of these freedoms was carried out timidly by the Convention, by providing for the existence of an official appointed by the Government in each municipality to deal with it in all matters of local or general interest. Upon Napoleon’s accession to the imperial crown and the Constitution of Pluvioso of the year 8 (1800), “most of the powers and faculties of the municipalities were completely destroyed, with the election and powers remaining at the mercy of the central power” (POSADA, Lessons, vol I, page 260). The realistic perception of Posada Herrera was based on his knowledge of comparative law, in this chaos the French, embodied in a very close time, the course 1842-43, when he taught his lessons and of which some of the ideas discussed above are part (VALLINA, Teaching …, page 106). It is appropriate to remember that at that time he was director of the School of Administration in a Government of the Regency of Espartero and that the Municipal Law of 1840 was suspended for what existed a generalized purpose of giving the Spanish municipalities a new legal text according to the political circumstances. Precisely because of his knowledge of the French municipal model, Posada Herrera understands that it was not applicable to Spain and argues with solid historical reasons, which take as axis the granting of privileges and freedoms, usually by kings and the game of balances maintained by the monarchs themselves in their struggles against the nobility power, for which until the fifteenth century strengthened and resorted to the strength of the municipalities to resolve such complaints. As of that date the balance is broken, and other factors appear as the provision of trades, few electives and many of real designation converted into heredita rios, the policy of alienation, interventionism, etc. The process of decomposition was stopped, according to Posada Herrera, with Carlos III, who wished to broaden the base of his popular participation, but since he could not generalize it because of seigneurial rights, he used the apology already seen of the supplies -one of the causes of the riots of 1766- to introduce with obligatory character in all the Municipalities the presence of a trustee and four procurators of the common, indirectly elected by the neighbors. In the competitions of the Town Councils This is where Posada finds the most distinguishing features of the traditional Spanish model compared to French. The reason, according to the illustrious Asturian, was that the kings did not distrust the Municipalities, but were their faithful auxiliaries, through the well-known argument of the powerful council militias at the service of the king’s cause. Hence, the local competitions in the matter of urban police, administration of common property or of all those of local interest were a key part of the content of their particular ordinances, which allowed that “everywhere there is that germ of municipal administration, which in the shadow of power absolute, has preserved the spirit of freedom and prepared the Spanish nation for a representative system of government. “b) The conflicting Municipal Law of 1840 With the antecedent of previous projects of moderate and inspired by these criteria, the Minister Calderón Collantes, presented On March 21, 1840 two projects on organization and powers of the Provincial Councils and City Councils. On June 8, 1840, the Governing Queen authorized the Council of Ministers to withdraw the draft law on Provincial Councils, while the second received its sanction as municipal law on July 14, 1840 by an important majority of 114 votes to 17. The project made the electoral system more restrictive. It was planned to hold two weekly sessions that were to be presided over by the political chief, the mayor or the one legally replacing him, in case otherwise the agreements would be null. The sessions would be held behind closed doors, except those related to recruitment or when budget and accounts were examined. The political chief, in the case of a serious governmental offense, could suspend a City Council, the mayor or any of his lieutenants, reporting to the government and the king. Previous file formed by the political head, could dissolve the City Council and dismiss the mayors and the lieutenants. The issue of the unconstitutionality of the law, already appeared in the debates on the Commission’s opinion, considering that the authorization requested by the Government to raise the bill on organization and powers of the municipalities was unconstitutional (DSC 1840, page 1159). Again this circumstance was noted in the discussion of the project, now referring to the mayor’s gubernatorial election and in the case of article 54, referred to the obligation to attend half plus one of the councilors so that the meeting of the City Council sticks to the legality, without whose requirement the agreements were not valid either.Approved the project in the Congress, its procedure by the Senate was immediate, but when sanctioning the Law a series of discomforts originated. Reflection of the confrontation between the Queen Regent and General Espartero, whose popularity reached its greatest importance, in the urban areas of Madrid, Barcelona, etc., where most of the municipalities were of progressive hue and offered strong resistance to a municipal law that consecrated governmental interventionism and restricted suffrage. In the end, the approval of the Municipal Law, was the immediate cause that ended with the regency of the Queen in September 1840, being replaced by Espartero author of a manifesto pointing out the need for the municipalities were not controlled from the central power and suspending the execution of the Law of organization and attribution of the Town Councils by Decree of the Regency of October 13, 1840. The good intentions did not happen of there, since Espartero behaved later with a strong authoritarian character. Different events such as the Barcelona uprising, the interference in the various governments, etc. they were facts that made the continuity of the Regent untenable, reason why after the confrontation of Torrejón de Ardoz the 17 of July of 1843, Espartero left the Regency and emigrated to England. In August of 1843 the ministry of Joaquín María López, decided to advance the declaration of the coming of age of Isabel II, so on September 8, in joint session of the Congress and the Senate, they agreed and two days later he swore the Constitution. After a series of moderate governments, on May 3, 1844, General Narváez came to power, with which we could effectively consider the arrival of the moderates to power, whose aegies lasted ten years. The Royal Decree of December 30, 1843 ordered to publish the Law of Organization and Attributions of the City Councils of July 14, 1840, including various amendments and accompanied by another Royal Decree of the same date addressed to political leaders, giving instructions for the development of the Law , referred to the immediate constitution of the municipalities, formation of electoral lists, setting a schedule for the holding of elections that were scheduled for February 25, renewing all the municipalities of the Kingdom. C) The Municipality in the Constitution of 1845 It is generally admitted that during the moderate decade, the constitutional state was definitively consolidated with the creation of the fundamental institutions whose survival in some cases continues to this day, configuring a territorial organization of the centralized state and a hierarchical civil service administration, addressing various reforms in the fiscal, social and educational order, although the census electoral criteria were maintained. These principles were embodied in the Constitution of 1845. The new Constitution consisted of 80 articles, in which many of the previous ones had been consolidated and in which the municipal regime was modified, distinguishing between mayors and municipalities. The councilors who formed the town councils were chosen by the neighbors. While the mayors considered themselves “government delegates”, and for a subsequent organic law the regulation of their powers remained, says Vicente Palacio: “This was how the road to the City Council Act was open, reserving administrative functions for them, the mayors of governmental appointment fall back on the political function, as the ideal of the moderates had always been “. It can be affirmed that in this way the City Councils would only have administrative functions, as opposed to those provided for in article 70 of the Constitution of 1837. Therefore, the Constitution of 1845, in its This will entail a greater maneuvering capacity of the legislature and executive regarding elections, mayors’ appointments and governmental intervention, a centralization that will mark the local entities and will redound to their detriment. On October 28, 1844, the Senate sent a bill to the Congress authorizing the Government to regulate the legislation of the Town Halls, Provincial Councils, Political Governments and Provincial Councils of Administration. The opinion of the Interior Commission stating its agreement with the project was issued on November 12, although the debates were prolonged for a month, finally approved on December 17, 1844 and promulgated as law on January 8, 1845. In opinion of Adolfo Posada this law, expressed “the centralizing criterion, of hierarchical dependence and distrust, more pure …” (page 193). Following the model advocated by the moderates, the appointment of the mayor belonged to the king or other members of the Government , in all provincial capitals and heads of judicial party greater than 2,000 vecinos. In the other towns would appoint the political chief, by delegation of the king, which was an important step towards the consecration of centralism and intervention permanent government that eliminated the election of mayors in all municipalities, despite the fact that in previous projects an exception was made with those of smaller population n.It is true that in terms of attributions the Spanish municipalities had a long tradition against the case of the French municipalities, a criterion that was maintained for many years before and after the process described in these lines, over the passage of time and the changes of political sign, but in the case of the Law of 1845 the agreements taken by the Town Councils, were privative, such as personnel and employees, administration of funds, communal use, conservation of roads, bridges and sidewalks, material improvements up to 2,000 Real in the Municipalities superior to 1,000 neighbors, distribution of grain, had executive character, although the political chief could suspend them if he considered them contrary to the laws. But of the agreements taken on the fourteen sections provided in Article 81 that refer to ordinances and urban and rural police regulations, works of public utility, alignment of streets, corridors, material works is that they exceed 2,000 reais, lease farms, plantations and forest use, suppression and reform or creation of excise taxes, alienation of goods, fairs and markets, donations and bequests, lawsuits, relief grants and employee pensions, etc., they should be brought to the attention of the political chief for final approval, or that of the government if the matter required it. Regarding the budgets, after elaborated, discussed and voted, if they did not reach 20,000 reais, they were remitted for final approval to the political head and if they passed of such amount to the Government. D) The Municipality in the esparterista biennium Constituted the Government of Espartero , with O’Donnell in War, an immediate measure was taken referring to the local regime. The Royal Decree of August 7 ordered that the municipalities and provincial councils be governed by the Law of February 3, 1823, which was somewhat complex, because despite the favorable pronouncements that exist on this law, was not taken into account the practical difficulty of its application thirty-three years after its elaboration and promulgation, when the social, political and economic conditions of Spain were completely different. However, one of the goals of Espartero and his collaborators was to elaborate a Constitution, that of 1856, that discussed and approved by the Cortes did not come into force. In the field of local administration, it should be pointed out that according to base 20 of the Constitution draft Opinion, the internal government of the towns was reverted to the town councils, albeit with qualifications regarding the text of 1837, since in subsequent debates the syndics word, in order to guarantee its effectiveness. In practice, it implied the introduction of an elective mechanism close to universal suffrage, since it did not determine the amount of the contribution, although it was an essential requirement to have the right to vote, so it did not completely break with the census suffrage system, which obviously it supposed the existence of a possible intervention of the oligarchies and of the local wealthy classes. In November of 1854 a project of law was presented on renovation of the City councils, approved by the Cortes the 7 of February of 1855. The inner government of the towns , was entrusted to the City Councils composed of mayors and councilors, all appointed by the neighbors. Once again, the electoral question marked by the census system arose, no doubt with more open criteria, as it was the proportion of the voters to all those who paid direct contributions for general, provincial and municipal expenses was estimated. The existence of broad powers was expected over which the agreements taken were immediately executory, but there were others whose approval by the Provincial Council was mandatory, as the budgets, as well as the Governor for the formation and reform of municipal ordinances, fairs, creation or closure of charitable establishments or public instruction, opening and alignment of streets and squares, public works of the municipality, regime of cemeteries, regime and use of the common property waters, etc., precepts that did nothing more than confirm the character of economic-administrative corporations of the City Councils, which could not exercise other functions or political acts than those expressly indicated by the laws, in case some doubt about the restrictions of their autonomy Article 238 provided that City Councils, mayors and councilmen, in matters that were not expressly attributed by law, were “under the authority and administrative direction of the Provincial Council and the Government of the province.” On October 16 a Royal Decree declared this Municipal Law without value or effect, establishing in all its force and vigor the laws on organization and attributions of the Town Councils, Provincial Councils and Provincial Councils. The Laws of 1845 were once again the norms that will regulate local Spanish life. E) The Municipalities in the final period of Isabel III Liberal Union, Posada Herrera, and the municipal reform In October 1856, the moderate alternative was returned and after 1858 the governments of the Liberal Union that lasted almost five years until March 1863, when O’Donell left office. With Posada Herrera as Minister of the Interior, the need to reform what years later became known as the Municipal Treasury became evident, consequently on January 7, 1859 he presented to the Cortes a bill on Budgets and Municipal Accounting, that according to the minister tried to normalize the large number of budgets and the differences that existed among themselves, so it was convenient to separate the budgetary issues from the organization and powers of the municipalities, which meant initiating local reform in a fragmented manner, but effective, because ultimately it was to reorder the municipal budgets, facilitating the use of resources to the municipalities, but also maintaining government control through the General Accounting Law to which all municipalities should adhere to in their economic activity and accountant. The law was promulgated on April 28, 1862. On November 2, 1860 don José Posada Herrera presented to the Cortes a bill on organization and powers of the municipalities, understood as a revision of the Law of 1845, to exist, at that time, political conditions different from those that existed when it was enacted, because in the opinion of Posada Herrera “strengthened institutions and even strengthened by the same crises that have gone through, closed the era of political instability …” had arrived the time to expand the sphere of action of the municipalities, decreasing the vigilance and control over them exercised by the government since 1845. The project consisted of 199 articles, which provided that the internal government of the people would be in charge of councilors elected by the neighbors and the mayor and deputy mayors appointed by the king, but this time, among the councilors, except in cities above 40.0 00 neighbors. In all cases their dependence was fixed on the exercise of their powers by the governors and the Minister of the Interior. It reiterated the condition of economic-administrative corporations of the City Councils, preventing them from exercising other functions and political acts than those indicated by law. As far as its competences, the list of the executive executives was expanded to sixteen. Once again Posada Herrera, on March 9, 1866, presented the project of “Organization and attributions of the Town Councils”. In the preamble, he analyzed the situations and circumstances in which the projects of the local regime had been enacted since the origins of constitutionalism in Spain in 1813. In this new opportunity, Posada Herrera presented a project of 260 articles in which it was foreseen that the mayors and councilors, would be appointed directly by the contributing neighbors. However, the Government could appoint corregidores mayors in towns larger than 40,000 inhabitants, already provided for in the Act 1864 on such mayors and although the electoral body was expanded, there are few variations in the distribution of powers, in their consideration of economic corporations -administrative and in your dep endencia of the Government of the province. The Commission’s ruling was presented on June 20, 1866, but it was not discussed when the Cortes dissolved. F) The Municipality in the Spanish Constitution of 1869 The revolution begun in Cadiz on September 18, 1868 was practically resolved after the Battle of Alcolea. Then spread throughout Spain, triumphing in a bloodless and simultaneously causing the fall of Elizabeth II. On October 21, 1868, the Decree Law of October 21, 1868, signed by Sagasta as Minister of the Interior, was promulgated, “declaring obligatory and in force the attached Provincial Municipal and Organic laws.” The key to the reform was in the purpose of establishing universal suffrage for the election of all popular offices. Previously a circular of the Supreme Government Board dated October 13, 1868 gave the instructions to hold the first municipal elections by universal suffrage, although it should be considered restricted, as women, also citizens, did not vote (POSADA, Evolución … , page 274). Convocation Constituent Cortes were responsible for drafting the text of the Constitution of 69, which dedicated the title VIII to the local administration, which consisted of a single article, the 99, referred to the Provincial Councils and City councils, which according to Posada could not be simpler or more vague. If, on the one hand, local authorities recognize the government and direction of the interests of the people, paragraph 4 also provides for the intervention of the king and the courts. It is true that census suffrages disappear to establish universal suffrage. The Municipal Law of 1870 was an important reform in the local Spanish regime. In its article 1, it defines concisely the legal concept of Municipality, as “the legal association of all the people who reside in a municipal term”. All the positions of the Town Councils were chosen by residents in the term that they had electoral right. Although it was defined as economic-administrative corporations, the municipalities had broad powers, whose most significant matters were contained in articles 67 to 84 of the law, which included: I. Opening and alignment of streets and squares and all kinds of communication channels. II. Stoned, lighting and sewer. III. Assortment of waters. IV. Walks and trees. Spa establishments, laundries, market houses and slaughterhouses. SAW. Fairs and markets. VII. Charities and instruction and health services. VIII. Municipal buildings and in general all kinds of public works necessary for the fulfillment of services. IX. Surveillance and day care. Urban and rural police, public care, cleaning, hygiene and public health were included. Use, care and conservation of municipal heritage and distribution and collection of all taxes and municipal taxes. For the fulfillment of the previous obligations corresponded to the Town Halls the formation of Urban and Rural Police Ordinances, the appointment of their employees the establishment of personal benefits and the association with other City Councils. The approval of the civil governor for the execution of agreements was required for the Urban and Rural Police Ordinances, although in case of discrepancy the definitive approval corresponded to the Government, previous report of the Council of State. As regards matters that were required by the provincial Commission for approval, the reform and suppression of municipal charitable and educational establishments, pruning and cutting of municipal forests. The approval of the Government, previous report of the provincial Commission was mandatory for the contracts of the real estate, real rights and titles of the Debt. Finally, we see that for the first time the Town Councils could form with the immediate associations for the resolution of shared problems , such as the construction and conservation of roads, rural nursery, neighborhood use and other objects of their exclusive interest. Said communities would be governed by a Board composed of a delegate of each City Council, chaired by the Member elected by the Board (Article 75). Martín-Retortillo considers it “indisputable precedent of the system of Intermunicipal Mancomunidades” (Decentralization …, page 172). Unfortunately, this Law was short-lived. But you can not make forecasts about the possible results that these laws would have had if they had been applied for a certain period of time. Anyway we can not be overly optimistic, because Article 170 of this Law made it clear that “The Minister of the Interior is the Chief of the City Council …” which removes any doubt about the possibilities of municipal autonomy. these effects I have We must remember that for many years the doctrine has verified that the difference between the legal texts of the nineteenth century emerged by the two progressive and moderate inspirations, had little difference, except in the matter of the election of mayors and councilors, for while the latter defended the real appointment of mayors and the census election system for councilors, the progressives rejected such appointment and defended the expansion of the electoral census, until arriving in 1870 to the establishment of universal suffrage.