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The second classification is founded upon the express or necessarily implied provisions of the Constitution, and may be denominated a constitutional classification. Sometimes the legislature is directed to provide by general law for the organization and classification of cities and towns, and the number of classes is prescribed. Sometimes the division into classes is made by the Constitution according to population, and sometimes the legislature is directed to effect the distribution. The constitutional prohibition of special laws did not,

Little Rock, 72 Ark. 195; State v. Cincinnati, 52 Ohio St. 419. But an annexation act, although in general terms, which can only apply in a single instance, and which is evidently intended to apply only in that particular instance, was held to be a local act and unconstitutional. Sample v. Pittsburg, 212 Pa. 533. But quære whether the local situation and circumstances of a single city may not be unique or so peculiar as to justify, if not require, to be separately and singly dealt with by the legislature, either by name or in form by a general act, and the legislative judgment on such a subject ought to be almost if not wholly conclusive on the courts, that is, conclusive if not so manifestly and flagrantly wrong as to shock the legal sense.

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Arkansas. "The General Assembly shall provide by general laws, for the organization of cities (which may be classified) and incorporated towns, and restrict their power of taxation, assessment, borrowing money, and contracting debts, so as to prevent the abuse of such power" (Ark. Const., 1874, art. xii. § 3). In South Carolina, "The General Assembly shall provide by general laws for the organization and classification of municipal corporations. The powers of each class shall be defined so that no such corporation shall have any power or be subject to any restrictions other than all corporations of the same class. Cities and towns now existing under special charters may reorganize under the general laws of the State, and when so reorganized their special charters shall cease and determine" (S. Car. Const., 1895, art. viii. § 1). But the consent of a majority of the electors of the district proposed to be incorporated as a city or town must be given before organization in such manner as may be prescribed by law (Ib. art. viii. § 2). In Missouri and Colorado, the Constitution directs that "The Gen

eral Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the powers of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions" (Mo. Const., 1875, art. ix. § 7; Colo. Const., 1876, art. xiv. § 13). In North Dakota and Wyoming, a similar provision is to be found, though framed in somewhat different language (So. Const., 1889, art. x. § 1; Wyo. Const., 1889, art. xiii. § 1). In Idaho, "The legislature shall provide by general laws for the incorporation and classification of the cities and towns in proportion to population, which laws may be altered, amended, or repealed by the general laws" (Idaho Const., 1889, art. xii. § 1). In Utah, the constitutional provision is to the same effect (Utah Const., 1895, art. xi. § 5). In Kentucky, the cities and towns of this Commonwealth, for the purpose of their organization and government, shall be divided into six classes (Ky. Const., 1899, § 156).

In New York, laws relating to the property, affairs, or government of cities, and the several departments thereof, are divided into general and special city laws. General laws are those which relate to all the cities of one or more classes; special city laws are those which relate to a single city, or to less than all the cities of a class. A special city law is required to be submitted to the city or cities for acceptance before it becomes a law. If not accepted, it must again be passed by the legislature before it can become a law. For these purposes "All cities are classified according to the latest State enumeration, as from time to time made, as follows: The first class include all cities having a population of 250,000 or more; the second class, all

as we shall see, operate to repeal special charters or laws, and left municipal organizations formed under them in the condition in which it found them, although sometimes provision is made for reorganization under general laws. Even where the Constitution divides cities and towns into a specified number of classes, it is apparent that cities and towns already existing and incorporated under special laws form a natural class by themselves, and when such cities and towns are recognized by the Constitution they constitute a constitutional class for purposes of legislation in addition to the general classes expressly provided for. Even when the Constitution is silent as tocorporations existing under special charters, such corporations have been regarded as constituting ex necessitate a constitutional class of municipalities, because the prohibition of special legislation on municipal affairs of necessity brought into existence a class of municipalities organized and operating under general laws and having powers distinct from those which had previously been incorporated under special charters. Another constitutional class results from those provisions of the Constitution which authorize cities to frame their own charters. Even where the Constitution directs that cities shall be divided into a specified number of classes, those municipalities which under the same instrument have framed their own charters naturally

cities having a population of 50,000 and less than 250,000; the third class, all other cities" (N. Y. Const., 1895, art. xii. § 2). In Washington, it is provided that "Corporations for municipal purposes shall not be created by special laws; and the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed" (Wash. Const., 1889, art. xi. § 11).

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lating to the same law contained in the local charter herein provided for" (Minn. Const., art. iv. § 36, as adopted in 1898). Where the Constitution prescribes classification by population for specific purposes, e. g., for fixing the compensation of county officers, such provision does not justify classification for other purposes, e. g., the holding of primary elections. Marsh v. Hanly, 111 Cal. 368. A law applicable to all the counties of a class authorized by the Constitution to be made is neither a local nor a special law, but is a general law, and it is immaterial whether there be few or many counties to which its provisions will apply. Cody v. Murphey, 89 Cal. 522; Schwarz v. Dover, 70 N. J. L. 502. This also applies to cities. Hager v. Gast, 119 Ky. 502; citing Richardson v. Mehler, 111 Ky. 408.

In Minnesota, by amendment to the Constitution adopted in 1898, provision is made by which any city or village may frame a charter for its own government, but this amendment to the Constitution provides further: "the legislature may provide general laws relating to the affairs of cities, the application of which may be limited to cities of over 50,000 inhabitants or to cities of 50,000 and not less than 20,000 inhabitants, or to cities of 20,000 and not less than 10,000, or to cities of 10,000 inhabitants or less, but shall 2 Johnson v. Milwaukee, 88 Wis. apply equally to all such cities of either 383; Adams v. Beloit, 105 Wis. 363; class, and which shall be paramount Appleton Water Works Co. v. Applewhile in force to the provisions re- ton, 116 Wis. 363.

Kansas City v. Stegmiller, 151 Mo. 189; Rutherford v. Hamilton, 97 Mo. 543. See also Elting v. Hickman, 172 Mo. 237.

and inherently constitute a class by themselves additional to the general classification prescribed by that instrument.1 A further class of cities founded upon the provisions of the Constitution are those which are singled out by name in that instrument for organization along special lines. Cities for which special provision has been made by the Constitution form a natural additional class to those contained in the classification prescribed by that instrument, for which the legislature may enact laws independently of any of the other classes specially recognized."

1 Kansas City v. Stegmiller, 151 Mo. 189; Fragley v. Phelan, 126 Cal. 383; Mintzer v. Schilling, 117 Cal. 361. As to Freeholders' Charters, see supra, § 63.

2 The Constitution of Missouri contains a prohibition of any local or special law regulating the affairs of counties, cities, &c., incorporating cities, towns, or villages, or changing the charter or creating offices, or prescribing the powers and duties of officers in counties, cities, towns, &c. (Mo. Const., 1875, art. iv. § 53). It also contains a direction that the legislature shall provide by general laws "for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The General Assembly shall also make provisions by general law whereby any city, town, or village existing by virtue of any special or local law may elect to become subject to and governed by the laws relating to such corporations" (Ib., art. ix. § 7). In addition, the Constitution authorizes the consolidation of county and city government in all counties where there is a city having a population of over 100,000 inhabitants (Ib. art. ix. § 15). It also permits any city having a population of more than 100,000 inhabitants to frame its charter and its own government (Ib. art. ix. §§ 16 and 17). There are further provisions in the Constitution providing in express terms for the extension of the city limits of St. Louis and the adoption of a freeholder's charter by that city.

There are (1) the four classes prescribed by the Constitution which the courts have regarded as primarily including only those corporations created subsequently to the adoption of the Constitution; (2) a fifth class composed of cities theretofore incorporated and existing under special or local laws; (3) a sixth class containing all such cities over 100,000 inhabitants as are authorized to and have framed and adopted their own charters; (4) and a seventh class, which includes only the city of St. Louis, for which special provision has been made by the Constitution. With respect to each of these classes, it has been said that the legislature may legislate directly for them without infringing the Constitution, and that in legislating therefor it does not create a new class, but simply provides for a class created by the Constitution. Kansas City v. Stegmiller, 151 Mo. 189. Under these provisions of the Missouri Constitution a statute may be made applicable to St. Louis by name, and is not unconstitutional as special legislation, as there is specific warrant in the Constitution for the separation of that city from the remainder of the State. State v. Tolle, 71 Mo. 645; State v Walton, 69 Mo. 556; State v. Mason, 153 Mo. 23; State v. Higgins, 125 Mo. 364; Murnane v. St. Louis, 123 Mo. 479.

When a Constitution prohibits the legislature from passing local or special laws changing the rules of evidence in judicial proceedings, but contains a further provision expressly authorizing special charters to cities of a certain population, the legislature may, incident to such a charter, provide that the deed of the tax collector shall establish prima facie title to property under a sale for the non-payment of taxes due thereon. Texas Sav. & R. E. Inv. Asso. v. Pierre's Heirs, 10 Tex. Civ. App.

It has been pointed out that the result of these provisions is to increase the number of classes beyond the number prescribed by the Constitution. 453.

When the Constitution specifies the number of classes into which cities shall be divided and prescribes the population or other qualifications of each class, or otherwise prescribes the manner in which legislation shall be made applicable to different cities, the constitutional direction is exclusive; the legislature must follow the classification of the Constitution and cannot subdivide the constitutional classes so as to create new and additional classes. When the constitutional direction is that corporations for municipal purposes shall not be created by special laws, but the legislature by general laws shall provide for the incorporation and classification, in proportion to population of cities and towns without prescribing or limiting the number of classes,' this provision is intended to limit and not enlarge the power of the legislature; it is intended that the classification authorized shall be by general law in the same sense and in the same way in which it is necessary to provide for the incorporation and organization of cities and towns. After the adoption of such a provision, legislation in regard to the organization and incorporation of cities and towns must thereafter be made with reference to classes established in conformity to its requirements. When the legislature has passed a general law classifying cities and towns in conformity with this constitutional direction it cannot thereafter create a class of municipal corporations and legislate as to their incorporation and organization without reference to the existing classification by general law. In other words, the legislative classification by general law becomes exclusive for these purposes; and, whilst it may be changed by a general law, until so changed, all legislation affecting the incorporation and organization of cities and towns must conform to the classification.3

2 Cal. Const., 1879, art. xi. § 6.

1 Murnane v. St. Louis, 123 Mo. 479; St. Louis v. Dorr, 145 Mo. 466; Darcy v. San Jose, 104 Cal. 642; Mytton v. Borden, 164 Mo. 221; Ward Ex parte Giambonini, 117 Cal. 573; v. Boyd Pav. & Cont. Co., 79 Fed. Rep. Rauer v. Williams, 118 Cal. 401. In 390. The Missouri Constitution de- Denman v. Broderick, 111 Cal. 96, the clares that cities shall be divided into legislature enacted a statute providing not more than four classes, and that all for boards of election commissioners municipal corporations of the same in cities and counties having 150,000 class shall possess the same powers. or more inhabitants. All municipal The legislature divided cities into four classes, the first class being composed of cities having more than 100,000 inhabitants. Held, that a statute providing for a board of public works in cities of 100,000 and less than 150,000 inhabitants is special legislation, because it created a class in addition to those prescribed and provided for by the Constitution. State v. Borden, 164 Mo. 221.

corporations were already classified by general law, the first class containing all those which had 100,000 inhabitants or more. It was held that this statute was an improper attempt to create a class of municipal corporations for a special purpose without reference to the existing classification by general law, and was local and special legislation in violation of the Constitution. In Rauer v. Williams, 118 Cal. 401, it

The third kind of classification is purely statutory in its origin, and embraces the subdivision of the natural classes of municipalities into smaller classes by legislative act. It is with reference to this kind of classification that the great bulk of the litigation has arisen, and that the principal difficulties have been experienced in reaching some satisfactory criterion for the purpose of determining the constitutional validity of legislation.

§ 148. Classification must be founded on Necessity or Propriety. - A law is usually, but it has been held that it is not always, general because it operates upon all within a class, and there must be back of that a substantial reason why it is made to operate only on a class and not generally upon all.' To be valid, a law applicable to a class of municipalities or limited to particular subdivisions of the State must rest on some characteristic or peculiarity plainly distinguishing the places included from those excluded. The true principle of classification requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. There must be substantial distinction having reference to the subject matter of the proposed legislation between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction for which the classification is founded must be such, in the nature of things,.as will in some reasonable degree at least account for or justify the restriction of the legislation. It must be founded upon a necessity or pro

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is said that, upon matters other than the organization and incorporation of municipalities, the legislature of California may pass general and uniform laws applicable either to municipal corporations of a given class or to all of a separate class created by and designated in the act itself, provided some plain reason appears for the limitation to such class. This case seems to limit the exclusive character of the organization pursuant to the constitutional mandate to legislation for the incorporation and organization of municipalities.

1 Ex parte Jentzsch, 112 Cal. 468; Rauer v. Williams, 118 Cal. 401; infra, $ 150, 151; Droege v. McInerney, 120 Ky. 796; 87 S. W. 1085. As to the respective provinces of the legislature and the courts as to the subject of the

present section, see ante, §§ 146, 147 and notes; post, § 151 and notes.

2 State v. Cooley, 56 Minn. 540; Murray v. Board of Commissioners of Ramsey County, 81 Minn. 359; State v. Walker, 83 Minn. 295; Costello v. Wyoming, 49 Ohio St. 202; Johnson v. Milwaukee, 88 Wis. 383; Adams v. Beloit, 105 Wis. 363. See ante, §§ 146, 147 and notes.

3 State v. Hammer, 42 N. J. L. 435; Anderson v. Trenton, 42 N. J. L. 486; Hammer v. State, 44 N. J. L. 667; Hightstown v. Glenn, 47 N. J. L. 105; Van Giesen v. Bloomfield, 47 N. J. L. 442; Pepin Tp. v. Sage, 129 Fed. 657; Halsey v. Nowrey, 71 N. J. L. 481; Lane v. Otis, 68 N. J. L. 656. Respective powers of the legislature and the judiciary, as to the necessity, basis, or reason for the classification, see ante,

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