bert Foulds, against whose property benefits had been assessed, filed exceptions, one of which was on the ground that the Act of May 6, 1887, under which the jury was appointed, was unconstitutional. The court dismissed the exceptions and Foulds sued out this writ.

suance thereof a jury, master and stenographer | opening of the Street. To this report one Alwere appointed. They entered upon their duties and filed a report on January 18, 1889, awarding damages to several claimants. The city solicitor obtained a rule to quash the proceedings on the ground that the Act of 1887 was unconstitutional because it is confined in its operation to cities of the first class. On January 31, 1889, the court made absolute the rule to quash, and J. Addison Campbell took this appeal.

The two cases were argued together in the supreme court April 8, 1889. Subsequently an application for a reargument was presented and the court granted the same and they were

CERTIORARI to the Court of Quarter Ses- reargued together January 6, 1890.

sions for Philadelphia County to review a judgment dismissing exceptions to the report of a jury appointed to open Ruan Street in the 23d Ward of the City of Philadelphia. Reversed.

Messrs. John Douglass Brown, Jr., and William C. Hannis, for appellant in Re Washington Street:

The regulation of the streets of cities is not such a subject that legislation concerning it caunot properly be based upon a classification of the cities.

See Wheeler v. Philadelphia, 77 Pa. 333; Walker v. Cincinnati, 21 Ohio St. 14.

Later decisions have not impaired the force of what was said in Wheeler v. Philadelphia, 77 Pa. 338.

On October 19, 1897, a petition was filed in the court of quarter sessions representing that public necessity demanded that Ruan Street should be opened from Edward Street to Frankfort Avenue; that the said Ruan Street is a street laid down on the city plan which has been duly confirmed. The petitioners prayed for the appointment of persons as a jury to See Kilgore v. Magee, 85 Pa. 401; Com. v. view and review the same, and to assess dam- Patton, 88 Pa. 258; Scowden's App. 96 Pa. 422; ages which might arise from the opening, and Davis v. Clark, 106 Pa. 377; McCarthy v. Com. fix benefits if any there might be, and report 1 Cent. Rep. 111, 110 Pa. 243; Morrison v. the same to the court. Under the provisions Bachert, 3 Cent. Rep. 117, 112 Pa. 322; Scranof the Act of May 6, 1887, a jury, a master and ton School District's App. 4 Cent. Rep. 311, 113 a stenographer were appointed and they pro Pa. 176; Scranton v. Silkman, 4 Cent. Rep. 317, ceeded toward the opening of the Street. On 113 Pa. 191; Philadelphia v. Haddington M. E. June 22, 1888, they filed a report in which Church, 6 Cent. Rep. 419, 115 Pa. 291; E ans they fixed the damages which would result v. Phillipi, 9 Cent. Rep. 691, 117 Pa. 226, Weinfrom the opening of said Street and also pre- man v. Wilkinsburg & E. L. P. R. Co. 11 Cent. pared a schedule of benefits which should be Rep. 54, 118 Pa. 192; Reading v. Savage, 13 assessed against property by reason of the Cent. Rep. 458, 120 Pa. 198, 124 Pa. 328; Ayars'

Local and special legislation prohibited.

The Constitutions of several of the States provide that the Legislature shall not pass local or special laws, in all other cases than those specified, where a general law can be made applicable. Ala. Const. art. 4, § 23; Cal. Const. art. 4, § 25; Ill. Const. art. 4, § 22; Ind. Const. art. 4, §8 22; Iowa Const. art. 3, § 30; Mo. Const. art. 4. § 53; Neb. Const. art. 3, 15; Nev. Const. art. 4, § 20; Or. Const. art. 4, § 23; Pa. Const. art. 3, § 7; Tex. Const. art. 3, § 56; W. Va. Const. art. 4, 859.

This clause recognizes the necessity for special legislation, and seeks merely to limit, not to prohibit. State v. Hitchcock, 1 Kan. 178.

A statute that cannot be reduced to a general rule to operate in all parts of the State alike is not a general law. King v. State, 3 L. R. A. 210, 87 Tenn. 304.

As to whether a general law can be made applicable, or whether a special Act is necessary, in a given case, the Legislature is the exclusive judge. St. Louis v. Shields, 62 Mo. 247.

The object of the constitutional regulation against special and local legislation as to municipal corporations was to substitute general law in every instance in which such substitution could be effected. State v. Bloomfield, 1 Cent. Rep. 443, 47 N. J. L. 442. The California Act for the classification of municipal corporations according to their population is a general law and constitutional. Pritchett v. Stanislaus Co. 73 Cal. 310.

A statute relating to unorganized counties, as distinguished from those which are organized, is not local or special. Ferris v. Vannier (Dak.) 3 L. R. A. 713.

a curative Act validating the establishment of a local improvement is framed so as to be both local and special is evidence of the legislative belief that a general law could not be made applicable; and such statute will not be declared unconstitutional except where it clearly appears that the Legislature was mistaken in such belief. Richman v. Muscatine Co. 4 L. R. A. 45, 77 Iowa, 513.

The New Jersey Code, giving the control of streets, etc., exclusively to the common council or board of aldermen of all the cities in the State, except those of the first class having a population exceeding 100,000, does not violate the Constitution; for the purpose of such legislation the classification is legitimate. State v. Hoagland, 51 N. J. L. 62.

The Act to Dissolve Municipal Corporations and to Provide Provisional Governments for the Same, is not a special law within the prohibition of the Constitution. Ex parte Wells, 21 Fla. 280.

The California Acts for the improvement of strects, etc., and the construction of sewers within municipalities, are general laws, affecting all municipal corporations in the State. Thomason v. Ashworth, 73 Cal. 73.

Although the Legislature has no power to change the charter of a municipality by the passage of a special or local law without the consent of the municipality, yet it may do so by a general law affecting all municipal corporations within the State. Ibid.

A statute declaring that it shall apply to all cities and towns in the State, "anything in their charters to the contrary notwithstanding," is operative in every city in the State. Re House Resolution (Colo.) 21 Pac. Rep. 484.

A law is not made local or special by a provision Under this constitutional provision the fact that that it shall not take effect in any city until ac

An Act giving, in cities of the first class, to a scire facias to recover a municipal claim the subject of The proviso of the Pennsylvania Act that no city a lien, the force and effect of a scire facias to conof the third class, nor one of less than 10,000 inhabi- tinue such lien, is unconstitutional and void betants, shall become subject to the Act until its pro- cause local in its operation. Philadelphia v. Hadvisions are accepted by an ordinance, is not uncon-dington M. E. Church, 6 Cent. Rep. 419, 115 Pa. 291. stitutional, as all cities of the class or size mentioned have the privilege of accepting the Act, and if they do not, to remain as they were before. Reading v. Savage, 124 Pa. 328.

So much of the Act to re-organize and consolidate cities of the first grade of the second class, etc., as grants authority to such city to appoint through its council a board of control, confers corporate powers by a special Act, and is unconstitutional. State v. Pugh, 1 West. Rep. 36, 43 Ohio St. 98.

A law to establish an excise department in cities | of over 15,000 inhabitants, where the power to grant licenses is not vested in a board of excise or court of common pleas, is local and special. State v. Trenton License Board, 4 Ceut. Rep. 88, 48 N. J. L. 438.

An Act providing additional powers for the gov ernment of seaside resorts by commissioners is unconstitutional as local legislation. State v. Winsor, 2 Cent. Rep. 259, 48 N. J. L. 95; State v. Somers Point (N. J.) 6 L. R. A. 57.

An Act providing for the appointment and prescribing the duties of a Lanster in road cases in cities of the first class is violative of Pa. Const., art. 3, § 4. prohibiting local or special legislation regulating the practice or jurisdiction in any judicial proceeding. Re Ruan Street (Pa.) 24 W. N. C. 460.

Act 1879, No. 337, providing for lighting streets, etc., is special and local and unconstitutional so far as it relates to townships. State v. Bloomfield, 1 Cent. Rep. 442, 47 N. J. L. 442.

A statute changing the policy of the State by transferring the burden of repairing turnpikes to separate townships, but excepting therefrom any county having a county public-road board, is a local and special law and unconstitutional. Lodi Township v. State (N. J.) 6 L. R. A. 56.

Streets in Cities of the First Class and Regulat- | sities of an inland city of 10,000 inhabitants?" ing Proceedings Therein," and it provides a system applicable only to the City of Philadelphia. The objection is now made that this Act is local in its operation, while it relates to a subject upon which local legislation is for bidden by the Constitution. On the other hand, it is insisted that it relates to all cities of the first class, and to a subject upon which local legislation is authorized by the classification of the cities of the Commonwealth under the Act of 1874.

In examining the question thus presented for decision we will consider, in the first place, the object of the classification of cities and the basis on which classification 1ests; second, the legis lation which classification authorizes for the several classes into which cities are divided; third, some of the subjects upon which legislation is not authorized by our system of classification; fourth, the proper application of our conclusions to the cases before us.

The force of the argument in support of classification in Wheeler v. Philadelphia, and it is the only line of argument by which it can be sustained, lies in the evident necessity for the possession and exercise of other and, in some respects, different, "corporate powers" by the city on the sea board from those required by the inland city; by the city with a population of 1,000,000, from those required by the city of 10,000. These great differences in population render it necessary that there should be corresponding differences in the "number, character, powers and duties" of the officers by whom the municipal governments are to be conducted and the municipal necessities provided for; and classification was sustained as a necessary means for enabling the Legislature to make provisions adapted to secure to each class of cities the "corporate powers" and the "number, character, powers and duties" of the officers best adapted to its needs, without an infraction of the Constitution.

The cities in this State are divided into classes by the Act of May 23, 1874. The object of With this glance at the object and basis of the classification is stated in the body of the classification, let us proceed to inquire what kind Act in these words: "For the exercise of cer- of legislation is authorized by it? I reply, negatain corporate powers, and having respect to tively, that it does not authorize legislation on the number, character, powers and duties of subjects not relating to municipal affairs. For certain officers thereof, the cities now in exis- this reason we held that an Act of Assembly retence or hereafter to be created in this Com-lating to mechanics' liens in cities of a given monwealth are divided into three classes."

class was a local law and forbidden by the Constitution. Davis v. Clark, 106 Pa. 377.

Liens may be divisible into classes by reference to their own peculiar characteristics, but not by reference to the size of the city or town in which the building subject to the lien may happen to stand.

An attempt was made to classify counties by reference to the number and geographical situation of the cities they contained, but this court refused to sustain it. Scowden's App. 96 Pa. 422; Com. v. Patton, 88 Pa. 258.

The first class embraced cities containing a population of 300,000 and upwards. The second class included all cities whose population exceeded 100,000 and did not exceed 300,000. The third class was made up of all cities having less than 100,000 inhabitants. The object of classification being thus clearly stated in the body of the Act which ordains it, we are not left to conjecture. The Legislature has declared its object in providing a system of classification to be to facilitate the convenient exercise of "certain corporate powers" necessary An Act relating to street railways in cities for the proper regulation of municipal affairs. of the third class came under consideration in The necessity for making such provision the recent case of Weinman v. Wilkensburg & grows out of the differences in size and situa- E. L. P. R. Co. 118 Pa. 192, 11 Cent. Rep. 54, tion of the several cities, and the resulting dif- and the Act was held to be local and therefore ferences in their needs as to the "number, unconstitutional, not relating to the municipal character, powers and duties" of the officers re-affairs of the cities of the third class, but to quired for the proper and convenient govern- certain corporations that happened to be located ment of each class. The basis of classification within them. is the population for whose well-being the city is to provide.

Whether the classification of cities for any purpose was constitutional was a question that came to this court first in Wheeler v. Philadelphia, 77 Pa. 338; and it was upheld as necessary for the proper and convenient government of the cities of the State. This necessity was forcibly stated in the opinion of the court delivered by the present chief justice. Speaking of the system of laws relating to the City of Philadelphia he said: "We have but to glance at this legislation to see that the most of it is wholly unsuited to small inland cities, and that to inflict it upon them would be little short of a calamity. Must the City of Scranton, over 100 miles from tide water, with a stream hardly large enough to float a batteau, be subjected to quarantine regulations and have its lazaretto? Must the legislation for a great manufacturing and commercial city, with a population approaching 1,000,000 be, regulated by the neces

This case was followed by Ayars' App. 122 Pa. 266, 2 L. R. A. 577, in which the general doctrine was clearly stated by Justice Sterrett in harmony with the line of cases just cited. But answering affirmatively, I will adopt the words of the Act of 1874 and say that classification authorizes such legislation as relates to the exercise of the "corporate powers" possessed by cities of the particular class to which the legislation relates, and to the "number, character, powers and duties" of the officers employed in the management of municipal affairs.

These are the purposes contemplated by the Legislature; they are the only purposes for which classification seems desirable; they are the only purposes for which it has been upheld by this court. In order that a given Act of Assembly relating to a class of cities may escape the charge of being a local law it is necessary, as was said in Weinman v. Wilkinsburg & E. L. P. R. Co., supra, that it should "be applicable to all the members of the class to which it relates

against the constitutional probibition as to one of these subjects, it can relieve as to all. If it can justify a change in the practice in the courts of law or the proceedings to assess damages for an entry by virtue of the right of eminent domain, it can by the same reasoning justify a change in the Law of Descents, or the settlement of estates, or the rate of interest, and sweep away the entire section with all its safeguards. But a statute is not above the Constitution. The Classification Act is subject to the limits which art. 3, § 7, prescribes, and it cannot transcend a single one of them. For that reason the courts of law in Philadelphia have the same jurisdiction and powers, and proceed in the same manner, as the courts in the other counties of the Commonwealth. The system of practice, so far as it rests on statutory provisions, must be the same. The same proceedings are had on writs, the same method for securing the benefit of the exemption of property from levy and sale, the same writ of habeas corpus for one who is restrained of his liberty, the same procedure for one whose land is entered and appropriated to public or to corporate uses. These are the civil rights of the citizens of Pennsylvania as such, and they are not affected by the size of the town in which he lives or the value of his land, any more than by the color of his skin.

and be directed to the existence and regulation | tion is forbidden. If classification can relieve of municipal powers and to matters of local government." A law that will bear the application of this test is within the purposes for which classfication was designed and therefore constitutional. A law that will not bear its application is local and offends against the Constitution. Among the many subjects of legislation which classification presents we may call attention to such as the establishment, maintenance and control of an adequate police force for the public protection; the preservation of the public health; protection against fire; the provision of an adequate water supply; the paving, grading, curbing and lighting of the public streets; the regulation of markets and market houses; of docks and wharves; the erection and care of public buildings, and other municipal improvements. These are mentioned, not because they include all the subjects for the exercise of municipal powers, but as a suggestion of some of the more obvicus ones, and as an illustra tion of the character of the subjects upon which legislation for the classified cities may be necessary. These classes are thus seen to embrace, not mere geographical subdivisions of the territory of the State, but organized municipalities which are divided with reference to their own peculiar characteristics and needs; and the legislation to which they are entitled by virtue of such division is simply that which relates to the peculiarities and needs which induced the division. In this way each class may be provided with legislation appropriate to it, without imposing the same provisions on other classes to which they would be unsuitable and burdensome.

We come now to inquire what legislation remains forbidden to cities notwithstanding classification. I reply that all legislation not relating to the exercise of corporate powers or to corporate officers and their powers and duties is unauthorized by classification.

In art. 3, § 7, the Constitution declares that the Legislature shall not pass any local or special law "regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, aldermen, justices of the peace, sheriffs, commissioners, arbitrators, auditors, masters in chancery or other tribunals." The same section forbids the passage of any local or special law fixing the rate of interest, exempting property from taxation, changing the laws of descent, affecting the estates of minors, and many other purposes, among which is, "authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys." It is very clear that the purpose of the constitutional provision is to require that laws relating to the several subjects enumerated in section 7 shall be general, affecting the whole State, so that the rule upon all these subjects shall be uniform throughout every part of the territory in which the Constitution itself is operative.

For example, there cannot be one rate of interest in cities of the first class, another in those of the second or third, and still another for the rest of the State, but the rate when fixed by law must apply to all parts and divisions of the State alike. The same thing is true of the Law of Descents, and so on through the entire list of subjects upon which local and special legisla

They are the safeguards provided by the Constitution for the protection of the weak as well as the strong, the dweller in the country as well as the resident in "cities of the firstclass," and no system of classification of cities or other divisions of the State can disturb them.

It now remains for us to apply the conclu sions which we have reached to the Act of 1887, and to the cases under consideration. That Act contains seventeen sections. The first and second of these provides for the assessment of damages for the opening of streets plotted or projected by the city. The remaining sections provide a peculiar and somewhat cumbrous Code of Procedure in road cases for the City of Philadelphia unlike that in use in the rest of the State. They add a lawyer to the board of viewers, who is also appointed by the court; they clothe him with the powers of a master in chancery; empower him to admit and exclude evidence without regard to the wishes of the viewers, and seal a bill of excep tions to his rulings that is to be returned with the report for the examination of the court. The viewers are thus stripped of all power over the course of their inquiry, and have nothing left them except to fix the damages from such evidence as the master permits them to hear. It is obvious that these sections do not relate to the exercise of any corporate power of cities of the first class or to the ("number, character, powers and duties") of the municipal officers, or to any subject under the control of the city government. On the contrary, they relate to the practice and procedure in common-law courts of the County of Philadelphia over which the city has no control, and to the adjustment of the compensation due the property holder for an invasion of his close under the right of eminent domain,-a subject as exclusively within the jurisdiction of these courts