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Streets in Cities of the First Class and Regulat- | sities of an inland city of 10,000 inbabitants ?” ing Proceedings Therein,” and it provides a The force of the argument in support of system applicable only to the City of Phila- classification in Wheeler v. Philadelphia, and it delphia. The objection is now made that this is the only line of argument by which it can be Act is local in its operation, while it relates to sustained, lies in the evident necessity for the a subject upon which local legislation is for possession and exercise of other and, in some bidden by the Constitution. On the other respects, different, “corporate powers" by the hand, it is insisted that it relates to all cities of city on the sea board from those required by the first class, and to a subject upon which local the inland city; by the city with a population of legislation is autborized by the classification of 1,000,000, from those required by the city of The cities of the Commonwealth under the Act 10,000. These great differences in population of 1874.

render it necessary that there should be corIn examining the question thus presented for responding differences in the "number, chardecision we will consider, in the first place, the acter, powers and duties"of the officers by whom object of the classification of cities and the basis the municipal governments are to be conducted on which classification iests; second, the legis and the municipal necessities provided for; and Jation which classification authorizes for the classification was sustained as a necessary several classes into which cities are divided; means for enabling the Legislature to make prothird, some of the subjects upon wbich legis- visions adapted to secure to each class of cities lation is not authorized by our system of classic the “corporate powers" and the “number, fication; fourth, the proper application of our character, powers and duties” of the officers conclusions to the cases before us.

best adapted to its needs, without an infraction The cities in this State are divided into classes of the Constitution. 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 classitication, let us proceed to inquire what kind Act in these words: "For the exercise of cer- of legislation is authorized by it?" I reply, negataio corporate powers, and having respect 10 tively, that it does not authorize legislation on the number, character, powers and duties of subjects not relating to municipal affairs. For certain oflicers 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 Con

The first class embraced cities containing a stitution. Daris v. Clark, 106 Pa. 377. population of 300,000 and upwards. The sec- Liens may be divisible into classes by refer. ond class included all cities whose population ence to their own peculiar characteristics, but exceeded 100,000 and did not exceed 300,000. not by reference to the size of the city or town The third class was made up of all cities bav- in which the building subject to the lien may ing less than 100,000 inbabitants. The object happen to stand. of classification being thus clearly stated in the An attempt was made to classify counties body of the Act which ordains it, we are not by reference to the number and geographical left to conjecture. The Legislature has de- situation of the cities they contained, but this clared its oliject in providing a system of classicourt refused to sustain it. Scowden's App. 96 fication to be to facilitate the convenient exer- Pa. 422; Com. v. Patton, 88 Pa. 258. cise of “certain corporate powers” necessary An Act relating to street railways in citics 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 tbeir needs as to the "number, unconstitutional, not relating to the municipal character, powers and duties” of the officers reafʼairs 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 This case was followed by Ayars' App. 122 is to provide.

Pa. 266, 2 L. R. A. 577, in which the general Whether the classification of cities for any doctrine was clearly stated by Justice Sterrett in purpose was constitutional was a question that harmony with the line of cases just cited. But came to this court first in Wheeler v. Phila- answering aflirmatively, I will adopt the words delphia, 77 Pa. 338; and it was upheld as neces of the Act of 1874 and say that classification ausary for the proper and convenient government thorizes such legislation as relates to the ex. of ihe cities of the State. This necessity was ercise of the “corporate powers” possessed by forcibly stated iu the opinion of the court de- cities of the particular class to wbich the legislalivered by the present chief justice. Speaking tion relates, and to the "number, character, of the system of laws relating to the City of powers and duties” of the officers employed in Philadelphia he said: “We have but to glarce the management of municipal affairs. at this legislation to see that the most of it is These are the purposes contemplated by the wholly uusuited to small inland cities, and that Legislature; they are the only purposes for to inflict ii upon them would be little short of which classification seems desirable; they are a calamity. Must the City of Scranton, over the only purposes for which it has been upheld 100 miles froin tide water, with a stream bardly by this court. In order that a given Act of Aslarge enough to float a batteau, be subjected to sembly relating to a class of cities may escape quarantine regulations and bave its lazaretto? the charge of being a local law it is necessary, Must the legislation for a great manufacturing as was said in Weinman v. Wilkinsburg & E. E. and commercial city, with a population ap- P. R. Co., supra, that it should be applicable to proaching 1,000,000 be, regulated by the neces- | all the members of the class to which it relates and be directed to the existence and regulation tion is forbidden. If classification can relieve of municipal powers and to matters of local against the constitutional probibition as to one government.” A law that will bear the applica of these subjects, it can relieve as to all. If it tion of this test is within the purposes for which can justify a change in the practice in the classfication was designed and therefore consti- courts of law or the proceedings to assess 'utional. A law that will not bear its application damages for an entry by virtue of the right of is local and offends against the Constitution. eminent domaio, it can by the same reason.

Among the many subjects of legislation ing justify a change in the Law of Descents, which classification presenis we may callatten- or the seitlement of estates, or the rate of tion to such as the establishment, maintenance interest, and sweep away the entire section and control of an adequate police force for the with all its safeguards. But a statute is not public protection; the preservation of the public above the Constitution. The Classification health; protection against fire; the provision of Act is subject to the limits which art. 3, $ 7, an adequate water supply; the paving, grading, prescribes, and it cannot transcend a single one curbing and lighting of the public streets; of them. For that reason the courts of law in the regulation of markets and market houses; Philadelphia have the same jurisdiction and of docks and wbarves; the erection and care of powers, and proceed in the same manner, as public buildings, and other municipal improve- ibe courts in the other counties of tbe Common. ments. These are mentioned, not because they wealth. The system of practice, so far as it include all the subjects for the exercise of rests on statutory provisions, must be the same. municipal powers, but as a suggestion of some The same proceedings are bad on writs, the of the more obvicus ones, and as an illustra- same method for securing the benefit of the extion of the character of the subjects upon emption of property from levy and sale, the which legislation for the classified cities may be same writ of habeas corpus for one who is necessary. These classes are thus seen to em- restrained of his liberty, the same procedure for brace, not mere geograpbical subdivisions of one whose land is entered and appropriated to the territory of the State, but organized munic- public or to corporate uses. These are the civil ipalities which are divided with reference to rights of the citizens of Pennsylvania as such, their own peculiar characteristics and needs; and they are not affected by the size of the and the legislation to which they are entitled by town in which he lives or the value of his land, virtue of such division is simply that wbich re- any more than by the color of his skin. lates to the peculiarities and needs which in- They are the safeguards provided by the duced the division. In this way each class Constitution for the protection of the weak as may be provided with legislation appropriate to well as the strong, the dweller in the country it, without imposing the same provisions on as well as the resident in “cities of the first. other classes to which they would be unsuitable class,” and no system of classification of cities and burdensome.

or other divisions of the State can disturb We come now to inquire what legislation them. remains forbidden to cities notwithstanding It now remains for us to apply the conclu. classification. I reply that all legislation not sions which we have reached to the Act of 1857, relating to the exercise of corporate powers or and 10 the cases under consideration. That to corporate officers and their powers and duties Act contains seventeen sections. The first and is unauthorized by elassification.

second of these provides for the assessment of In art. 3, § 7, the Constitution declares that damages for the opening of streets ploited or the Legislature shall not pass any local or projected by the city. The remaining sections special law "regulating the practice or jurisdic- provide a peculiar and somewbat cumbrous tion of, or changing the rules of evidence in Code of Procedure in road cases for the City any judicial proceeding or inquiry before of Philadelpbia unlike that in use in the rest courts, aldermen, justices of the peace, sheriffs, of the State. They add a lawyer to the commissioners, arbitrators, auditors, masters in board of viewers, who is also appointed by the chancery or other tribunals.” The same section court; they clothe bim with the powers of a forbids ihe passage of any local or special law master in chancery; empower him to admit fixing the rate of interest, exempting property and exclude evidence without regard to the from taxation, changing the laws of descent, wishes of the viewers, and seal a bill of excep. affecting the estates of minors, and many other tions to his rulings that is to be returned with the purposes, among which is, “authorizing the report for the examination of the court. The laying out, opening, altering or maintaining viewers are thus stripped of all power over the roads, bighways, streets or alleys.” It is very course of their inquiry, and have nothing left clear that the purpose of the constitutional them except to fix the damages from such evi. provision is to require that laws relating to dence as the master permits them to bear. It ibe several subjects enumerated in section 7 is obvious that these sections do not relate to shall be general, affecting the whole State, so the exercise of any corporate power of cities that the rule upon all these subjects shall be of the first class or to the (“number, character, uniform throughout every part of the territory powers and duties ") of the municipal officers, in which the Constitution itself is operative. or to any subject under the control of the city

For example, there cannot be one rate of in-government. On the contrary, they relate to terest in cities of the first class, another in those the practice and procedure in common-law of the second or tbird, and still another for the courts of the County of Philadelphia over rest of the State, but the rate when fixed by which the city has no control, and to the ad. law must apply to all parts and divisions of the justment of the compensation due the property State alike. The same thing is true of the Law holder for an invasion of his close under the of Descents, and so on through the entire list of right of eminent domain,-a subject as exclu. subjects upon which local and special legisla- ! sively within the jurisdiction of these courts as an indictment for a crime or an action of absolutely void would be plain and imperative. trespass quare clausum fregit. The only con. So the manner in wbich taxes shall be levied nection the city bas or can bave with such a and collected, and at what rate, are legislative proceeding is as a party to the litigation be questions. Whether the law be wise or unwise, cause liable to pay the damages assessed. The easy or severe in its operation, the courts cancity a ppears, like any other suitor, to ask or not interfere so long as it is general and uni object to the appointment of viewers, or to the form; but a tax of 10 cents on a dollar of the contirmation of their report, and it is bound, last adjusted valuation of the valuable real like any other suitor, by the judgment rendered. estate in cities of the first class, and of ten mills

It was suggested on the argument that real on the valuation of property in the rest of the estate is more valuable in the city than in the State would violate the Constitution. Whether country, and that for this reason a different the law imposing such unjust and unequal mode for assessing damages done by the open- taxes shall be executed is a judicial question. ing of a highway ought to prevail. But the Whether the proceedings in road cases shall constitutional convention evidently did not be wholly changed or not is for the Legislature think so. It made no provision for classifying to determine. litigation by reference to the sums in contro. It may give us an entirely new system of versy or the location of the property involved, procedure in such cases if it so decides. But and this is the first time I have ever heard the when it attempts to change the practice in suggestion made that such a classification was one city or class of cities alone, it is attempting desirable. Courts of justice weigh legal rights local legislation of a mischievous kind which in the scales of reason, not in ihose of com- the Constitution forbids, and the question merce, and protect the citizen whose scanty whether such a law sball be enforced is as possessions are in the country with the same purely a judicial question as it is easy to conjealous care as the holder of corner lots in a ceive. great city. The established forms of procedure Applying the conclusions we have reached in courts of law are the same for all suitors. to the Act of 1887, we hold that all the sections The value of the subject of litigation, the wealth except the first and second are in violation of of the litigants, their personal character, their the Constitution and must fall. What is the race or previous condition, are circumstances situation of the two remaining sections? In an. of which the law takes no notice. The courts swering this question let us see just how the represent the Commonwealth of Pennsylvania; law stood in the City of Philadelphia on the wherever they sit their process goes out in the subject to which they relate when they were name, and their judgments are enforced by the passed. The Act of 1874 made it the duty of power, of the Commonwealth, and their pro- road viewers in all cases where they located a ceedings are no more affected by the classifica- road, public or private, to assess the damages tion of cities than are those of the legislative or to be sustained by property holders, if any, executive departments of the state government. unless claims for such damages were released,

It is also suggested that the constilutionality and make return of such assessment with their of the Act of 1887 is a legislative and not a ju- report. This was a general law and was in. dicial question, and that it should be left only tended, probably, to cover all cases where alam. to the judgment of the Legislature. This sug- ages might be sustained by reason of laying out gestion is as destitute of foundation as that we and opening of public highways. In Philadel. have just considered. The Legislature must phia streets are projected by the city officers in exercise its powers within the lines laid down advance of the immediate wants of the neighby the Constitution. What it shall do within borbood and plotted on the city plans. These these lines is a question that addresses itself to are called plotted streets. When it is desirable the wisdom and discretion of its members. to open such a street, viewers are appointed by Whether it shall disregard them and do that the court of quarter sessions to go "pen The which the Constitution forbids is a question ground, investigate and report upon the peceswhich, when such legislation is attempted, be. sity for such opening. When their report is longs to the courts. When they decline, if confirmed and the opening determined upon, they ever do, to compel obedience to the Con. another view is appointed to assess damages stitution, all check upon legislative power will done by, and benefits derived from, the openbe gone, and the door to all sorts of local and ing of the new street. Did the Act of 1874 imspecial law's which the Constitution proposes pose the duties of both sets of viewers upon to close will be open as wide as in the worst that appointed to determine the necessity for days of omnibus legislation. What the law opening the street? This question came first shall be upon a subject over which the Legis- into this court in the Cose of Jackson Street, 83 lature bas power is a legislative question. Pa. 328, and it was held that the Act of 1874 Whether the rate of interest shall be 4 per cent was inapplicable to the case of plotted streets, or 6 or 10, is a legislative question; for ihe Leg. and that damages must be assessed under the islature bas ample power over the whole sub- local laws applicable before that Act was ject. But whether there shall be one rate in passed. This case was followed some years Philadelphia, another in cities of the second later by Magnolia Ave., 117 Pa. 56, 9 Cent. class, still another in cities of the third class, Rep. 611. The consequence of this ruling was and one different from all these for the rest of to leave plotted streeis remaining under the the State, is a judicial question, because the local system, wbile other streets were brought Constitution declares that laws on this sub- under ibe General Law. ject shall be general and uniform: local laws The Acts of 1858, 1864 and 1866 were local, providing different rates for different parts of relating only to the City of Philadelphia. Unthe State would be a violation of the Constitu- der their operation the viewers who decided to tion, and the duty of the courts to declare them open the road had nothing to do with the question of damages; and the viewers who adjusted ent rule in the classified cities from that prethe damages bad nothing to say upon the vailing in the rest of the State. I need not at necessity for opening the street. This incon- this late day discuss the reasons wbich induced venience had been removed by the General this court in Wheeler v. Philadelphia, 77 Pa. Law of 1874 as to all the streets except the 338, to adopt the principle of classification. It plotted ones.

is suf ent to say that without it there might What remained to be done was to repeal the have been a dead lock in machinery of the local system and extend the provisious of the government. Our present difficulty, and in General Law relating to the duty of the view my opinion it is a serious one, I thiok may be ers appointed to lay out streets, to those ap- fairly attributed to our departure from the pointed to open streets laid out and plotted by principles there laid down. The doctrine upon the city. This is effectually done by the first which that case rests is that legislation for and second sections. It is true that the form classified cities is not local, and if it applies to of the Act of 1887 is not that of a general law, classes, and not to persons or things of a class, pot does it in terms profess to repeal the local it is not special. There is no other ground system and extend the General Law in its upon which classification can be sustained. An place, but in substance and effect it provides Act passed for all cities of a class is a general for just the change needed. The fact is of law and not local, for the reason that its opermore importance than the form, and the fact ation is not confined to any one city. And if is that the Act of 1887 wipes out the old system it applies to all persons or things of a class it by wbich the necessity for opening a street is not a special law. As was said in Wheeler went to one view and the damages to another, v. Philadelphia: "This construction does not and puts in its place the provisions of the Gen- open the door to special legislation. It per: eral Law committing the assessment of dam- mits legislation for classes, but not for persons ages to the viewers whose report in favor of or things of a class. As an illustration, it opening made the assessment necessary. In could not be held to authorize the Legislature this way both subjects come to the attention of to open a particular street in a city of either the same viewers at the same time; and upon class named in the Act referred to. their report both subjects come to the attention It was this kind of special legislation which of the court at the same time. These sections was the cause, in a great measure, of the adop. do not simply tend to uniformity, but they action of this feature of the Constitution. It had complish it. Their effect is to bring under one often bappened that when the courts or the system, and that the system provided for the councils of a city had refused to open a parwhole State, by general law, all cases of assess- ticular street, interested parties would procure ments of damages and benefits upon the laying the passage of an Act of Assembly ordering out of new, or the opening of plotted, streets. such opening. This was the evil which was It is true these sections relate only to cities of probibited by the Constitution, and it can no the first class, but so did the local laws which more exist now under classification than it can they supply.' The remedy is as broad as the without it. evil to be correcied. A law which repeals & If, then, legislation for classified cities is local law must of necessity affect only the lo- neither local nor special, it does not come cality in which the local law prevailed, but it within the prohibition of art. 3, § 7, of the is not therefore a local law within the mean Constitution. It follows logically from this, ing of the Constitution. It does not set up, as I view it, that it is for the Legislature to say but it destroys, a local system and thereby ex- what legislation is needed for a classified city, tends the general law over the territory previ- and that it is not a judicial question at all. ously withdrawn from its operation. So with This is a plain rule, easily understood, which the Act of 1887 so far as the first and second leaves the Legislature free to enact such laws sections are concerned. They take away the as the wants of classified cities require. Conpreviously existing system for the assessment cede that it must be limited to matters affectof damages for the opening of plotted streets ing their government. What can be more vital which was local and rested on local laws, and to the good government and welfare of a city, put the system provided by general law in its and to ibe material interests of its inbabitants, place. For this reason we think they do not than the control of its streets ? Why may not offend against the Constitution. These con- a classified city bave the power to direct the clusions lead us to affirm Washington Street opening of streets and the assessment of the and to reverse the proceedings in Ruan Street. damages therefor? Must the damages for the Let judgment be entered accordingly.

widening of Chestnut Street, which may Clark, J., and McColum, J., concur in amount to millions of dollars, be assessed prethe judgment, but dissent from so much of the cisely in the same manner as for the opening opinion as sustains the constitutionality of sec- of a road in the Hemlock Forests of Pocono tions 1 and 2 of the Act of May 6, 1887. Mountains ? Why should we have an iron

clad, inflexible rule which cannot be enforced Paxson, Ch. J., dissenting:

without injury to the one section or the other, The difficulty we bave bad in deciding this when neither section demands it, or would be and other cases involving the constitutionality benefited by it? In my opinion all that relates of legislation affecting classified cities ought to to the local atfairs of the municipality, the conadmonish us that we are at sea without any trol of the streets, its gas and water supply, its recognized, intelligent rule to guide us. We markets and many other matters wbich might have been struggling towards “uniformity,” be mentioned, are proper subjects of municipal and making that a test of the constitutionality control and may be safely left to such municof this class of legislation, whereas the very ipalities. As to all such matters those comobject of classification is to allow a differ- munities can best govern themselves, and I do not think the Constitution probibits, or was the future. This particular case is decided, intended to prohibit, legislation conferring but if it furnishes a rule by which a lawyer upon them such powers. If one class of cities can safely advise bis clients in reference to desire certain regulations regarding its streets, future legislation, unless upon precisely similar or any other maiter affecting the welfare of its facts, I fail to see it. If the legislation in reinbabitants, why should it not bave them gard to streets in the cities must be uniform wben no other community is cting or is with the rule in all other parts of the State, injured thereby. And why should such regu- upon what subjects and to what extent may lations, if conferred upon one class of cities legislation be applied to classified cities? Until which desires them, be forced upon another this question is answered specifically, I conclass, or upon rural districts which do not de- tend we have no rule at all. We have nothing sire them, and to whose wants they are utterly but theories, and the most astute lawyer can. unsuited ? The answer, and the only answer, not safely pronounce an Act relating to classito this, is, “We must have uniformity.” This fied cities constitutional, until after such Act is all very well so far as the Constitution en- has been passed upon by this court. In other joins uniformity, but in my opinion neither words, the General Assembly may legislate for ibat instrument nor the common good and wel. classitied cities subject to the veto of ihis court. fare of the people require this principle to be in my opinion it would be better to leave this carried to the extent claimed for it in the whole subject to the wisdom of the Legislaaffairs of municipalties. It would be as reason- ture, where, under the constitutional division able to declare tbat all men should wear coats of the powers of the government, it properly of the same size whether they fit them or not. belongs.

I am unable to see that the opinion of the For the reasons thus briefly indicated I dis majority of the court furnishes any fixed rule sent from this judgment. by which such legislation can be measured in Mitchell, J., concurs in this dissent.


AMERICAN TELEPHONE & TELE- Mr. Robert R. Boarman for appellant.

GRAPH CO. OF BALTIMORE CITY, Messrs. David G. McIntosh and W. Gill Appt.,

Smith, for appellee:

The averments of the bill are sufficient to auGeorge A. SMITH,

thorize granting an order of injunction. end NINE OTHER CASES.

Western Maryland R. Co. v. Orcings, 15 Md.

204; Frederick v. Groshon, 30 Md. 436. (...... Md.......)

A line of telegraph or telephone upon a railThe construction of a telegraph and road right of way is an additional burden. telephone line on a railroad company's

Lewis, Em. Dom. $ 1888; Mills, Em. Dom. right of way imposes an additional servitude $ 55; Atlantic & P. Teleg. Co. v. Chicago, R. I.

& P. R. Co. 6 Biss. 158. or burden on the land for which the owners are entitled to compensation unless it is constructed

The utmost extent to which any exception to by the railroad company in good faith for its own this rule is carried is where the telegraph line use and benefit in the operation of the road and is constructed for the use of the railroad comto facilitate its business, or is reasonably neces- pany, in the operation of its road, and the dissary for that purpose.

patch of its business. (Stone, J., dissents.)

W. U. Teleg. Co. v. Rich, 19 Kan. 517.

A right of way is an interest in land, which (December 17, 1889.)

cannot be created, except in the mode and man

ner prescribed by the Statute. APPEALS from orders of the Circuit Court Hays v. Richardson, 1 Gill & J. 366; Baltimoro

& H. R. Co. v. Algire, 63 Md. 319. The case is stated in the opinion.

Assuming the Railroad Company had a right

NOTE.Telegraph line along right of way of railroad. , telegraph company, permitting it to establish a lino

A line of telegraph on a railroad right of way is of wire its right of way, but cannot make an exan additional burden (see Atlantic & P. Teleg. Co. clusive contract. In so doing it seeks to add an unv. Chicago, R. I. & P. R. Co. 6 Bip. 158; Lewis, Em. limited franchise to one which is itself limited. W. Dom. 191), unless constructed for the use of the U. Teleg. Co. v. Am. U. Teleg. Co, supra; Mills, Em. railroad company in the operation of its road and Dom. 407. dispatch of its business. W. U. Teleg. Co. v. Rich, The use by a telegraph company of the right of 19 Kan. 517.

way of a railroad, for the purposes of erection and It is a proper use of its right of way where a rail- maintenance of a telegraph line, is an encroach. road erects a telegraph line thereon or suffers the ment on the exclusive rights of the railroad. At"line to be erected by a telegraph company for the lantic & P. Teleg. Co. v. Chicago, R. I, & P. R. Co. joint use of both companies." W. U. Teleg. Co. v. supra; south western R. Co. v. Southern & A. Teleg. Rich, 19 Kan. 517; Pierce v. Drew, 136 Mass. 75; New Co. 46 Ga. 43. Orleans, M. & T. R, Co. v. Southern & A. Teleg. Co. And a special authority to a telegraph company 53 Ala. 211; W. U. Teleg. Co. v. Am. U. Teleg. Co. 65 to build upon, over or under any public road, street Ga. 160; Baltimore & 0. Teleg. Co. v. Morgan's L. & or highway is to be construed strictly and does not T. R. & Steamship Co. 37 La. Ann. 883; Lewis, Em. authorize construction over a railroad. New York Dom. 355.

City & N. R. Co. v. Central U. Teleg. Co.21 Hun, 261; A railroad company can make a contract with a Lewis, Ein. Dom. 355.

See also 26 L. R. A. 443; 41 L. R. \. 403; 45 L. R. A. 223.

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