priety for legislation differing from the legislation appropriate to other classes; and this necessity or propriety must spring from some manifest peculiarities not only distinguishing one class from another, but demanding or at least justifying legislation for each class separately that would be useless and detrimental to the others. A statu

§§ 146, 147 and notes; post, § 151 and notes.

the case last cited, in which the court examined whether as a matter of fact, 1 Darcy v. San Jose, 104 Cal. 642; as well as of form, the legislation in People v. Central Pac. R. Co., 105 Cal. question was general as a matter of 576; Dupee v. Swigert, 127 Ill. 494; necessity or propriety. An act was Hetland v. Board of Com'rs of Norman passed entitled "An act to provide County, 89 Minn. 492; State v. Cooley, additional means for completing and 56 Minn. 540; Alexander v. Duluth, furnishing the court house and city 77 Minn. 445; Murray v. Board of hall building now in process of erection Com'rs of Ramsey County, 81 Minn. in the city of Minneapolis, and to au359; State v. Miller, 100 Mo. 439, 606; thorize the issue and sale of bonds Murnane v. St. Louis, 123 Mo. 479; therefor." On the first argument, the Dunne v. Kansas City Cable Ry. Co., attorneys as well as the court appar131 Mo. 1; State v. Speed, 183 Mo. ently assumed that the act was special, 186; Rosenbloom v. State, 64 Neb. the discussion being as to whether or 342; State v. Farmers' & M. Irrig. Co., not it was an act in the language 59 Neb. 1, 4; Van Giesen v. Bloom- of the Constitution 'regulating the field, 47 N. J. L. 442; Lewis v. Jersey affairs of any county or city.' The City, 66 N. J. L. 582; Halsey v. Now- court held that it was, and hence rey, 71 N. J. L. 481; Angell v. Cass was void. On re-argument, the posiCounty, 11 N. Dak. 265; Edmonds v. tion was taken by counsel that the act Herbrandson, 2 N. Dak. 270; Ladd was general, and the court so held. Its v. Holmes, 40 Oreg. 167; Wheeler v. reasoning is interesting, to say the Philadelphia, 77 Pa. 338; Scowden's least. It went beyond the mere form Appeal, 96 Pa. 422; McCarthy v. and looked into the substance of the Commonwealth, 110 Pa. 243; Ayar's legislation to see whether it was genAppeal, 122 Pa. 266; Ruan Street, 132 eral in fact, that is, whether it apPa. 257; Commonwealth v. Macferron, plied to all cases of the kind which ex152 Pa. 244; Commonwealth v. Gilli- isted in the State; and as they found gan, 195 Pa. 504; ante, §§ 146, 147 that the combination of unfinished and notes. "There must be some county court house and unfinished city reasonable relation between the situa- hall existed only in Minneapolis, it held tion of municipalities classified and that it was general. "If such reasoning the purposes and objects to be attained. be valid," says Mr. Hubbard in the HarThere must be something in the na- vard Law Rev., June, 1905, "it is a little ture of things, which in some reason- difficult to see how there can possibly able degree accounts for the division be any such thing as special legislation. into classes." People v. Knopf, 183 'Special' means belonging to or relatIII. 410, 420. "The true practical ing to a species; and if legislation limitation of the legislative power to which applies to a particular city by classify is that the classification shall name, and applies to that city because be upon some apparent natural reason it is different from every other city, is some reason suggested by necessity, not special, then special legislation by such a difference in the situation would seem to be a myth." and circumstances of the subjects placed in different classes as suggests in the case last cited: "The last propthe necessity or propriety of different legislation with respect to them." Nichols v. Walter, 37 Minn. 264. But by necessity in this connection is meant a practical and not an absolute necessity. State v. Cooley, 56 Minn. 540. be general in fact, although special in On the subject of "general" and "special" legislation an interesting and difficult question arose in Minnesota in

The Supreme Court of Minnesota said

osition to which we will refer is that the character of an act as general or special depends on its substance, and not on its form. It may be special in fact, although general in form; and it may

form. The mere form is not material. To illustrate, suppose mountains were one of the subjects on which special

tory classification, not grounded on any reasonable or practical necessity, and which effectuates an evasion of the Constitution, will not be upheld.1

§ 149. Classification must be Germane to Subject Matter. The statement that a law relating to a class of cities is a general law, is only the generalization of a rule, and is to be qualified by the consideration that peculiarities and differences which serve to distinguish classes for any purpose do not necessarily furnish a basis for legislative classification. Classification, dissevered from the purposes of the enactment, can only result in segregation and localization, and in the continuance of varying and discordant enactments applicable to localities having the same needs. Hence a classification permitted for one kind of legislation cannot be made the basis of a different kind of legislation to which it is manifestly inappropriate. Therefore the rule has been laid down and generally adopted that the characteristics which form the basis of classification must be germane to the purpose of the law; in other words, legislation for a class, in order to be general, must be confined to matters peculiar to the class;

legislation was prohibited, and that there was only one mountain in the State; a law referring to that mountain by name would be special in form, but general in fact, according to all the rules." P. 554: "Inasmuch as courts will in such cases take judicial notice of all facts bearing on the constitutionality of the law, we know that this is the only case of the kind the only member of the class which now exists, or ever can exist; for, under the constitutional amendment of 1892, no other special law like that of 1887 can be enacted. Hence the classification is complete. Again, the legislation [providing funds to complete the building] is confined to matters connected with and peculiar to the distinctive features of the case; or, in the language of the rule, the characteristics forming the basis of the classification are germane to the purpose of the law. Finally, as we have already seen, the facts that the law is special in form, and that it applies to only a single object, or, in the language of another rule, that the class consists of only one member, are not important. Our conclusion is that the act, although special in form, is general in fact, within the meaning of the Constitution." On the whole, the author is inclined to think that the conclusion of the court under the circum

stances does not violate the purpose or policy of the Constitution respecting special legislation.

In State v. Policemen's Pension Fund Trustees, 121 Wis. 44, it was held that the distinction between cities having and those not having a paid police department constituted such a marked difference as to fully satisfy the call for a real distinction between the members of one class and those of another, such feature being made the basis in the main for the accumulation of a pension fund, and an act providing for a pension fund for police officers in those cities having a paid police department was held to be not invalid.

1 In Scowden's Appeal, 96 Pa. 422, a statute applicable to all counties having a population of 60,000, in which there may be a city of the fifth class, was held to be an effort to legislate for certain cities of the fifth class to the exclusion of all other cities of the same class, and to be void.

2 State v. Miller, 100 Mo. 439, 606. Respective provinces of legislature and courts, see ante, §§ 146, 147, 148 and notes; post, § 151 and notes.

3 Dougherty v. Austin, 94 Cal. 601, 621; Cullen v. Glendora Water Co., 113 Cal. 503; Rosenbloom v. State, 64 Neb. 342.

there must be an evident connection between the distinctive features sought to be regulated and the regulations adopted.'

§ 150. Statute must include all belonging to Class. Under the constitutional prohibition of special legislation, in order to make a statute applicable only to a class constitutional it is essential that it should include within its provisions all persons or things naturally embraced within the class. It must exclude none whose conditions and wants naturally bring them within the operation of legislation adapted to the class.1 When the legislature enacts a statute in regard to a class, it cannot be permitted to take what might be deemed a natural class, split that class in two, and then arbitrarily designate the dissevered fractions of the original unit as two classes, and thereupon enact different rules for the government of each. If municipalities be grouped into a small class founded upon some peculiarity of an artificial and unsubstantial nature, the origin and formation of

this class will serve as an apt precedent for the further selection of a few individuals of that class, having a common, though slight, relation or affinity, and grouping them into another and still smaller class, by which classification may be minimized to the point of special legislation and the constitutional mandate defeated.1 Similarly if a statute selects certain classes of municipalities apparently at random, some large, some small, some of intermediate size, omitting others of every grade of population above, below, and intermediate, and confers upon the classes so arbitrarily selected a power and a privilege in the transaction of municipal business which is denied to others standing in precisely the same relation to the subject of the enactment, the act is special notwithstanding the generality of its form.2

§ 151. Classification by Population. - Additional powers may be required in large cities, and the performance of additional duties, such as the maintenance of an adequate police force, protection against fire, water supply, and other things, may call for legislation different from that required in less populous centres. The increased responsibilities and duties of a city which are necessary to afford protection to and supply the needs of a great population may require a greater revenue and a higher rate of taxation than would be needed in a small town or village. The judicial doctrine of classification is that all cities having the same characteristics of a substantial equality of population should have the same corporate powers and be subject to the same restrictions although another class might be formed upon a substantial difference in population.* From this necessity for diverse powers, classification by population has been adopted, and has been recognized as creating a sufficient basis of generality for statutes relating to the affairs of cities. But

3

the same principle a statute fixing the term of office of city physicians at three years, and forbidding any diminution of their salary, but applying only to city physicians whose term of office was not previously fixed under authority of law, was held to be unconstitutional. Tetrault v. Orange, 55 N. J. L. 99.

1 Costello v. Wyoming, 49 Ohio St. 202; Ohio decisions, see ante, §§ 140, 141, 145. A New Jersey statute regulating the appointment of fire and police commissioners, applying only to cities having a population numbering between 12,000 and 100,000, in which police commissioners have not been appointed pursuant of any law of the State, was held to be unconstitutional on the ground that it attempted a classification of cities on the basis of pop- State v. Jones, 66 Ohio St. 453. ulation, but excluded from its opera- 5 Waite v. Santa Cruz, 184 U. S. tion those cities which, although their 302, rev'g 89 Fed. Rep. 619; 75 population is within the prescribed Fed. Rep. 967; Los Angeles v. Teed, number, have police commissioners 112 Cal. 319; Pritchett v. Stanislaus appointed pursuant to other statutes. County, 73 Cal. 310; People v. HenState v. Nealon, 73 N. J. L. 100. On shaw, 76 Cal. 436; Mintzer v. Schill

2 Dougherty v. Austin, 94 Cal. 601. 3 People v. Knopf, 183 Ill. 410; ante, chap. i. §§ 4 et seq.