pealing act, it is not prohibited by the fundamental law. But this conclusion is resisted because it is contended the act overlaps repeal with affirmative legislation. A repeal alone would, without doubt, have placed the public buildings of a member of the first class of cities in the charge, control, and under the direction of the department of public works, for the act organizing the government of such cities provides: "The construction, protection and repair of public buildings" shall be "under the direction, control and administration of the department of public works." The present act, after abolishing commissioners, provides that all public buildings heretofore under the control of commissioners in said cities "shall be under the direction, control and administration of the department of public works." These words are thus identical with those used in the governing act, and therefore cannot be said to constitute new or additional legislation. With or without the words in question, the effect of the repeal would have been the same. Their use was unnecessary, but doubtless the legislature, by using them with the words of repeal, intended an iteration of the absolute extinction of building commissioners in a manner more clear and emphatic than would have been indicated by a simple repeal. The proposition that the act, as a repealing statute, is brought within the inhibition of the constitution, because, in addition to repeal, it contains a substantial iteration of it, would seem like refinement run mad, and, if subtle, would appear to be beyond ordinary comprehension. But the plaintiffs contend that the repeal is incidental, and the act is "intended to apply to one particular city or county, and cannot have any application to any other city within the designated class," and is "an attempt to regulate by a special law the affairs of the particular city to which it is applicable," and therefore comes within the grasp of the constitutional prohibition. The history of legislation in this state will attest that the promotion of the public welfare has been best accomplished by a resort to classification, and the exercise of this power for such purpose has never been questioned. Where the population in a city or cities has become very great, classification, which has its basis in population, must necessarily constitute an exceedingly limited number of the first class, because their necessities and requirements, in consequence of their great size, are peculiarly distinctive. The limitation in numbers, reducing the class even to a minimum, can have no effect upon the general character of the legislation in regard to such class. While, therefore, all legislation relating to cities of the first class is necessarily applicable to the city of Philadelphia, as it is the only member of that class, it does not follow that because such is the case the legislation is, as a consequence, violative of the constitution.

In Wheeler v. Philadelphia, 77 Pa. St. 349, it is said by Mr. Justice Paxson: "But it is contended that, even if the right to classify exists, the exercise of it by the legislature in this instance is in violation of the constitution, for the reason that there is but one city in the state with a population exceeding three hundred thousand; that to form a class containing but one is, in point of fact, legislating for that one city to the exclusion of all others, and constitutes local and special legislation, prohibited by the constitution. The argument is plausible, but unsound." Again, he says: "In the mean time, is the classification as to the cities of the first class bad because there is only one of the class? We think not. Classification does not depend upon numbers." Again: "If the classification of cities is in violation of the constitution, it follows, of necessity, that Philadelphia, as a city of the first class, must be denied the legislation necessary to its present prosperity and future development, or that small cities must be burdened with legislation unsuited to their needs; for if the constitution means what the complainants aver that it does, Philadelphia can have no legislation that is not common to all other cities of the state." Again: "Must the legislation for a great commercial and manufacturing city, with a population approaching one million, be regulated by the wants and necessities of an inland city of ten thousand? If the constitution answers this question in the affirmative, we are bound by it, however we might question its wisdom. But no such construction is to be gathered from its terms, and we will not presume the framers of that instrument, or the people, who ratified it, intended that the machinery of their state government should be so bolted and riveted down by the fundamental law as to be unable to perform its necessary functions."

In

Philadelphia having its municipal government organized under the general act for the government of cities of the first class, and by reason thereof having become a city, fixed and established as such among the first class, legislation of a municipal character on that class, although applicable to it alone, as its only member, is general, and not special, and the reason for it is that it is based upon classification which has its foundation in legislative necessity. Weinman v. Railway Co., 118 Pa. St. 202, 12 Atl. Rep. 288, Mr. Justice Williams says: "For purposes of local government, the state is subdivided into counties, townships, and other municipal and quasi municipal corporations. Each class of these subdivisions has purposes to subserve that are peculiar to it, and need to be invested with the powers necessary to that end. Generally speaking, all the members of each class have some local function to perform. Classification, therefore, upon this basis, has been recog

rized, and a statute relating to all the townships, all the school districts, or all the members of any particular class of the municipal divisions of the state has been held to be constitutional. It has been found desirable to divide cities into classes upon the basis of their population. The needs of a great city, with a half of a million or more of people, are somewhat different in many respects from the needs of a city with ten thousand. The organization of their local governments, and the management of their municipal affairs, will be quite unlike. Each requires legislation peculiar to itself." In Ruan St., 132 Pa. St. 257, 19 Atl. Rep. 219, it is said by Mr. Justice Williams, in delivering the opinion of the court: "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 somewhat different corporate powers by the city on the seaboard from those required by the inland city,-by the city with the population of one million from those required by the city of ten thousand. 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 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 secure its needs, without an infraction of the constitution." The constitutional mandate restricting legislation to defined limits has for its object the passage of wise and uniform laws beneficial to the masses of the people, and the prevention of vicious and injudicious enactments advantageous to few persons, and was not intended to defeat or prevent legislation for greatly concentrated population, whose necessities springing from such concentration concern quarantine, health, trade, public buildings, political divisions, and finances, and require distinctive legislation. The legislature, confronted with conditions arising from such necessities, has therefore passed laws relating to them as applicable to a class, although existing in a single locality, and has founded such classification upon needs imperatively demanding legislation. The statute in the present controversy relates to a class whose locality is restricted, and concerns the erection, completion, construction upon, and protection of, public buildings,-a subject that pertains to municipal government, so desiguated in the general act governing cities of the first class, and as essentially so as any object of municipal administration. As it is thus made applicable to a general class,

and intended for a municipal purpose, the contention that it is special, as the class contains but one member, cannot be successfully maintained, because it has the constituents of general legislation, namely, the class and the purpose. This general character, thus manifested, cannot be modified by the allegation that the motive of the legislature in its enactment was to accomplish a special purpose. The judiciary has nothing to do with the moving causes of legislation, and will always presume that a Coordinate branch of government is impelled by proper motives, and is controlled by a due regard for constitutional mandate. The presumption that general legislation was intended should therefore prevail, and is in harmony with judicial opinion that legislation with classification as its basis is general. In Ayars' Appeal, 122 Pa. St. 281, 16 Atl. Rep. 356, the present chief justice says: "Laws enacted in pursuance of such classification and for such purposes are, properly speaking, neither local nor special. They are general, because they apply alike to all that are similarly situated as to their peculiar necessities. All legislation is necessarily based upon a classification of its subjects, and, when such classification is fairly made, laws enacted in conformity thereto cannot be properly characterized as either local or special." In Reeves v. Traction Co., 152 Pa. St. 162, 25 Atl. Rep. 516, Mr. Justice Mitchell, in delivering the opinion of the court, sustaining the constitutionality of the act of May 8, 1876, relating to the use of motive power upon passenger railways in cities of the first class, said: "It is claimed, however, that it transgresses the prohibition of article 3, § 7, of the constitution, in that it is a local or special law, amending or extending the charter of a corporation. But, under the settled construction of this section, classification of subjects including cities is permissible, and legislation which applies alike to all the members of a class is not local or special, but general."

It is contended that the act in question is an act prohibited by the constitution, because it attempts to regulate the affairs of a | particular city by a transfer of the functions of the commissioners to a special department or officer. The act under which its government is organized creates a department of public work, and places under its direction, control, and administration, and in charge of its director, "the construction, protection, and repair of public buildings." If, when it was passed, the proviso excepting the act creating the commissioners had not been incorporated in it, the performance of their functions would have devolved upon that department; and if the commission, by its repeal, should cease to exist, the same result would necessarily follow. This act, then, in designating a department to which the per formance of the functions belongs by law,

does not thereby create for it any new duty, or establish any new commission, body, or department to perform it. It is not an attempt to trench upon the rights of the people to control local administration, but is a general law, having for its object the removal of all restrictions upon such control in cities of the first class, and spri; gs from an imperative demand that the public buildings necessary for their business shall be under the direction of municipal administration. As the city would thus resume its charge of these public buildings, and, in doing so, perform that which by law it is required to do, an act which, by repeal, removes any restriction upon its performance, and thus leaves it to perform a duty cast upon it by law, is not one regulating its affairs, or making any new transfer of its public buildings.

It is said that this act transgresses the article of the constitution which prohibits the enactment of any law containing more than one subject, and requires the one subject to be clearly expressed in the title; but an examination will demonstrate that it, in fact, contains but one subject, and that which is germane to it. The first section provides for the abolition of the commissioners, and follows it with the provision that the buildings, the erection, completion, repair, removal, and protection of which had been in their control, shall be under the direction and control of the department of public works. The second section provides for the repeal of the laws creating the commissioners. The title expresses clearly the subject of the legislation. The words of the act, designating the department of public works to have control direction and administration of these buildings upon the abolition of the commissioners, do not express any new or distinctive subject of legislation. They indicate, as shown, only the department of the city upon which would devolve the duty of their control, direction, and administration upon the abolition of the commissioners. The warrant for a judicial annulment of a law, upon the grounds of its unconstitutionality, should be found in a clearly expressed prohibition or one necessarily implied; and a doubt should always resolve in favor of its constitutionality. To apply the constitutional prohibition to this act is to extend it beyond reasonable limits and those of judicial determination. In Myers v. Com., 110 Pa. St. 224, 1 Atl. Rep. 264, it is said, in holding an act to be constitutional: "We see no merit in the argument as to the insufficiency of the title to this act. It authorizes 'the reconstruction of county bridges destroyed or partially destroyed, and empowers the commissioners to borrow money for the purpose.' The purpose of the act is sufficiently expressed in the title, and the authority to borrow money is germane to the reconstruction of bridges." In Fredericks v. Canal Co., 109 Pa. St. 55, 2 Atl. Rep. 48, involving the constitutionality

of "An act to authorize turnpike, plank-road, and canal companies to issue bonds and secure the same by mortgage, and to abandon portions of their roads and lines for public use," it is said: "The body of the act, inter alia, declares: 'Any such company may and is hereby authorized to abandon for public use such portions of their road or lines of improvement as may be deemed by such board unnecessary to be kept open for public use, provided however at least two-thirds of the stockholders approve and tonsent to the same.' The subject and the several parties thereof specified in the act are germane to the subject expressed in the title. The title is not deceptive or misleading. The subject is not disguised nor concealed thereby. It is therefore sufficient." ·

I am of opinion that the act is constitutional.

MITCHELL, J., (dissenting.) The intention of the legislature in the act of 1893 is perfectly clear, and its object entirely constitutional. The objections to the act are to the mode in which that intention and object are sought to be accomplished. If these objections are substantial, then, no matter how well meant and desirable the purpose, it must fail. That is the penalty of living under the present constitution, pervaded, as it is, by a profound distrust of the legislature. In the impatience of the people with the evils of special legislation, they have rushed to the other extreme, and so hedged about and bound up the legislative arm of the government that legitimate and necessary powers can be exercised only with difficulty, if at all. Article 3, on "Legislation," contains, as our Brother Dean has pointed out, 60 specific prohibitions, besides other restrictions and regulations not absolutely prohibitory. It is a barbed-wire fence around all legislative action, bristling with points of danger even to the most honest and desirable and essential laws. A literal adherence to all its provisions would have stopped the wheels of government, and so this court was forced to hold when the first great question of the needs of municipal legislation came before it. Some elasticity was absolutely indispensable, and it was found in the principle of classification. I make these observations and this illustration to call special attention to the necessity of reading the constitution, where it relates to the powers of the legislative branch of the government, in a broad and liberal way, looking to its spirit as more controlling than its mere words. If a statute does not offend against the spirit, does not really do the thing which the constitution means to prohibit, then it should be sustained, although its form may be liable to objection under the strict words of the prohibition.

The act under consideration is drawn with great carelessness or overconfidence. The objections to its form are manifest and ad

mitted. Even the argument of the very skillful and learned counsel for the respondents is an apology, and a plea to save it, notwithstanding its undeniable faults. In this argument I entirely concur. As already

said, the general intent of the act is clear, and its object entirely constitutional. Looking at this object and intent, the objections to its form do not seem to me sufficiently deep-seated to require us to hold that it transgresses the real meaning of the constitutional prohibitions. It will be sufficient, without elaborating the discussion, to indicate in a general way the reasons why I think it can and ought to be sustained.

First. The creation of a new commission, consisting of the department of public works, does not seem to me the necessary result of the act. It is no part of the general intent, which is to abolish the commission created by the act of 1870, and transfer its powers to the city of Philadelphia. The designation of the department of public works is merely the naming of that branch of the city government to which the act of 1885 would commit the subject had the present act briefly repealed the act of 1870 without more. The transfer of the powers of the old commission to the department of public works is a transfer to the office, not to the incumbent, and is therefore really to the city, of which the office is a part. The naming of the agent instead of the principal is not material, because the whole scope of the act shows that it is not a grant of power to the agent individually, but to him as agent, and representing the principal. This conclusion is plain from the fact that, if all this part of the statute had been omitted, the result would have been exactly the same. The existing law-the act of 1885would in that case have transferred the power to the same place where this act expressly puts it, namely, the department of public works. At most, this part of the act is surplusage, and should not be allowed to vitiate the whole.

Secondly. The objection that the act covers more than one subject rests on the view that it creates a new commission. If the construction indicated in the preceding paragraph be adopted, this objection disappears.

Thirdly. The act is applicable to all cities of the first class, and relates to a subject of municipal government. It therefore comes within the decisions sustaining the classification of cities, and is a general law. Fourthly. Even if the first section of the act be construed to create a new commission, and therefore to be unconstitutional, the second section is free from that objection, and can stand by itself, as a valid repeal of the act of 1870. It is clearly severable, and therefore not involved in the invalidity of section 1, if that be conceded for the argument's sake. Nor do I find the objection that section 2 contains more than one subject insuperable. The only real sub

ject is the repeal of the act of 1870, and, having expressly enacted that, the section proceeds to repeal a section of the act of 1885 which had preserved the commission under the act of 1870, and therefore might be thought to conflict with the present act. But, in repealing that section of the act of 1885 without qualification, the act of 1867, creating the park commission, would also be repealed, which was not intended or desired, and therefore a saving proviso was added with regard to this last act. In all this there is nothing but the one subject,-the repeal of the act of 1870,-and thereby the abolition of the commission created by it. The repeal of the section of the act of 1885 was a part of the same purpose, and the proviso as to the park commission was necessary in order to limit the repeal to the object really intended. It no more introduced a new subject than the usual clause repealing all laws and parts of laws inconsistent with a new enactment.

For these reasons, I am of opinion that the injunction should be dissolved.

(156 Pa. St. 147)

COMMONWEALTH v. CONNORS. (Supreme Court of Pennsylvania. July 1, 1893.)

CRIMINAL LAW-EVIDENCE-PHOTOGRAPHS.

On a trial for larceny of money from a bank, alleged to have been committed by defendant and two confederates, photographs of men recognized by the bank officials as being the ones who were in the bank when the robbery was committed, one of which is a likeness of defendant, and the other two of which are likenesses of persons recognized by others as his companions on the day of the robbery, are admissible in evidence, without preliminary proof that the photographs are correct representations of defendant and his confederates.

Appeal from court of oyer and terminer, Northampton county.

Wallie Connors was convicted of larceny, and appeals. Affirmed.

The facts appear in the following charge of the court to the jury:

"You have been sworn to try the defendant, Wallie Connors, upon one indictment. This indictment contains three counts. The first one charges the defendant with the offense under our Penal Code of entering any dwelling, shop, mill, or other building for the purpose of committing a felony. It declares that Wallie Connors entered in the daytime the Easton National Bank, in the city of Easton, for the purpose of committing a felony. The second count of the indictment charges him with simple larceny. The third count of the indictment charges him with receiving stolen goods. Under the testimony, there can be no conviction on the third count of this indictment. You will therefore pass upon the question of the defendant's guilt or innocence upon the first and second counts of this indictment.

"On the 21st day of July last, one of the

clerks, the teller in the Easton National Bank, removed from the safe which was inside of the vaults of that institution a large package of money, consisting of one and two dollar bills, and amounting to $4,000. He put it upon a shelf in that vault, and some time during the morning, for the purpose which he has detailed to you, went to that package of notes, and handled it, and saw and knew that it was there at that time. Some hours later, when he entered the vault, the package was gone. The precise time that it was taken, nobody knew. How it was taken, nobody saw. They do, however, declare that, at an hour when the clerical force at the bank is the most reduced, at a time when there were but two clerks in the bank, a man came into the office of the bank, with tread so noiseless upon the hard tile flooring in that institution as to lead them to believe that he had on felt shoes or shoes with rubber soles. He passed over in the direction of where the desk is placed for the convenience of the patrons of the bank, and which was also in the direction of the cashier's room, from which there was a door leading into the interior of the banking office, and in close proximity to the door of the vault, and disappeared. Neither of the bank clerks saw him afterwards when he left the bank. Immediately after this person came into the banking house, two other persons came in, one of them going to the teller's office, and handing the teller a roll of bills, and said, 'Here are $80 with which I want to pay a note which is coming due.' The teller and he had some conversation about the custom of the bank, in the mean time the teller starting to count the money, which was inclosed with a paper band, upon which, in ink, were the figures $80,' and said to that individual, "There are not $SO here.' [While the teller's attention was attracted by the conversation in proving to this man that he was mistaken in the amount of money which was contained in the roll, the other man engaged the attention of the other clerk by asking of him information in regard to the Bixler family, who he believed were entitled to a certain sum of money coming from somebody somewhere on the other side of the ocean. While these two men were engaged in conversation with the two clerks, a customer of the bank, Mr. Mayer, came in;] and, as he came into the door, he says, a man came towards him. His coat was buttoned up, and was puffed out, and, as he got near the door leading to the street, he gave a little cough, upon which the other two men turned from the desks at which they were engaged in conversation with the clerks, and they all went out. [The commonwealth claims that these men were not strangers to each other, but that they had been together at different points that morning; that they rode together in a carriage to Easton; and that afterwards they left Easton together.] [Do you believe these facts? If you do, you are war

ranted in, and almost irresistibly led to, the conclusion that these men were at that bank on that morning for no legitimate purpose; and, if they were there for no legitimate purpose, what purpose could they have been there for other than the perpetration of the crime which the commonwealth alleges was committed, if you believe that there was such a crime committed. I say that, if you believe the commonwealth's testimony that these three men that were in that bank that morning, apparently strangers, there each. for a different purpose, were the three men who met upon the road between here and Bath, and who were brought to Easton in the same conveyance, who went to the bank separately, and who afterward met again and were driven out of town, and if you be lieve they were the men who took the cars together at Treichler's station, I say you are almost led to the irresistible conclusion that they were the men who perpetrated the crime, if you believe the crime was committed.]

"Having determined the question whether the money was stolen at the time, and in the way contended for by the commonwealth, you are then to determine whether this de fendant was connected with the people who stole that money. Of course, if you believe the money was not taken in accordance with the theory of the commonwealth, then your verdict will be not guilty, for then this defendant is entitled to a verdict of acquittal. If you believe the theory of the commonwealth is correct, however, as to the method in which this money was taken, then you will determine whether or not this defendant was one of the three men. Does the identification by the clerks in the bank as to this defendant being the man who went to the desk upon the east side of the banking room, with noiseless tread, and there disappeared, satisfy you that it is correct? Do you believe their testimony that this defendant is the man who was connected with the commission of that offense that morning in the bank? For the purpose of determining whether this testimony is true, and whether this identification is complete, you will take into consideration all the testimony upon that subject in the case: The testimony of Mr. Mutchler that this defendant, on the morning of the 21st of July, the day that the offense was committed, came to the printing office, and claimed that for him and for his use and for his benefit a certain advertisement was put into the Easton Daily Express, and asking whether any replies had been received to that advertisement. You will take into consideration the testimony of the persons near Bath, who testify that, at a certain point after the carriage had left Bath, on this road towards Easton, or towards Newburg, this defendant got into the carriage; and you will take into consideration the testimony of Mr. Vreeland, who passed the carriage upon the road, and