nicipality does not come within a constitutional prohibition of special laws regulating municipal affairs or business. The mode of exercising the power of eminent domain, the conditions upon which it may be invoked, and the assessment of damages or compensation upon an exercise of the power all relate to the civil rights of citizens as such and are not a municipal matter, although the entry may be by a city under a power of eminent domain conferred upon it for a public purpose, and the city may be a party to the proceedings. Mechanics' liens deal with the rights and remedies of the citizen, and have no relation to municipal affairs, and a statute regulating their enforcement cannot be justified as a general law because it is based upon a classification of cities which is a valid 1 Van Cleve v. Passaic Valley Sew- the statute violated the prohibition of erage Com'rs, 71 N. J. L. 183; s. c. the Constitution against local or special 71 N. J. L. 574. Legislation regulating laws affecting the jurisdiction and prothe administration of criminal law in cedure of the courts. The court said: municipalities does not regulate the "It it obvious that these sections (of affairs of these municipalities. It is a the statute) do not relate to the exermatter of general interest to the State. cise of any corporate power of cities State v. Taylor, 68 N. J. L. 276. A of the first class, or to the number, liquor tax law, being a general State ex- character, powers, and duties of the cise law, with such special provision and municipal officers, or to any subject adaptation to localities as to the legis- under the control of the city governlature seems proper, including a regu- ment. On the contrary, they relate to lation of the amount of liquor tax in the practice and procedure in the comcities of different sizes, is neither a gen- mon-law courts of the county of Philaeral nor special city law, nor does it delphia, over which the city has no relate to the affairs or government of control, and to the adjustment of the cities within the meaning of the con- compensation due the property holder stitutional provisions of New York. for an invasion of his close under the Hence it is not invalidated by the fact right of eminent domain, a subject as that in fixing the excise taxes upon the exclusively within the jurisdiction of business of trafficking in liquors it these courts as an indictment for a graduates them in cities according to crime or an action of trespass quare population, not following the classifica- clausum fregit. The only connection tion of cities fixed by the Constitu- the city has, or can have, with such a tion. People v. Murray, 149 N. Y. 367. proceeding is as a party to the litiga2 Ruan Street, 132 Pa. 257; Wyo- tion, because liable to pay the damages ming Street, 137 Pa. 494; Pittsburgh assessed. The city appears like any Petition, 138 Pa. 401; Pasadena v. other suitor to ask or object to the Stimson, 91 Cal. 238. In Ruan Street, appointment of viewers or the confir132 Pa. 257, the court had before it the mation of their report, and it is bound provisions of a statute relating to the like any other suitor by the judgment assessment of damages caused by the rendered." But the insertion in the opening of streets in cities of the first statute of a provision for the filing of a class. The statute provided a special lien for an assessment does not offend method of fixing these damages. The against the Constitution, if the procedConstitution of Pennsylvania declares ure directed to be followed is common that the legislature shall not pass any to all classes of municipalities. The local or special law regulating the prac- mere fact that such provision is intice or jurisdiction of, or changing the serted in a statute relating to only one rules of evidence in, any judicial pro- class of municipalities does not rencedure or inquiry before the courts. The der the statute invalid, if other statcourt held that proceedings to ascertain utes exist applying similar provisions the damages from street openings did to other municipalities. Scranton v. not relate to municipal affairs, but that Whyte, 148 Pa. 419. classification for municipal purposes.1 Protection of life and limb is not a local matter, but is a matter of general public interest, and for this reason it has been held that a statute of Ohio requiring fire escapes on buildings in cities of a certain population does not have a uniform operation throughout the State as required by the Constitution, and cannot be justified on the ground that it deals with a class of cities. Although the Constitution may prohibit the enactment of local or special laws relating to municipal affairs, there may be certain matters which are embraced within the scope of express constitutional provisions calling for the enactment of laws on these subjects. Legislation on these subjects enacted in obedience to the express command of the Constitution has been held not to be within the prohibition of special legislation merely because it operates within the territorial limits of a municipality. If such legislation is necessary or appropriate to carry into effect a positive command of the organic law, or is required or directly contemplated by its terms, it cannot justly be held to be within the operation of a prohibition of special laws regulating municipal affairs or business.3 No general rule has been laid down defining what constitutes municipal affairs or business, probably because it has been impossible to do so in such terms as to furnish a satisfactory guide to the courts and the profession. Among the matters which have been held to be municipal affairs within the principles relating to special legislation are the fol owing: the annexation of one city by another; municipal elections; the division of the city into wards and the location of ward lines; the control of the police department of a city by the power to remove and appoint police commissioners; laying out and opening streets; the grading and paving of streets; the power to collect the cost of work done in paving and grading streets, by appropriate forms of taxation; 10 the deter 4 7 9 1 Davis v. Clark, 106 Pa. 377; Pittsburgh Petition, 138 Pa. 401, 435. 2 Cincinnati v. Steinkamp, 54 Ohio St. 284. 3 Under this principle, statutes regulating the compensation of a sheriff of a city which had been segregated from the county for governmental purposes, Kennefick v. St. Louis, 127 Mo. 1; providing for the registration of voters, Ewing v. Holitzelle, 85 Mo. 64; for electing justices of the peace within a city, Spaulding v. Brady, 128 Mo. 653; establishing courts, State v. Yancey, 123 Mo. 391; and prescribing the terms and places of holding court, State v. 6 Hughes, 104 Mo. 459, have been held to be constitutional, although special in form, where they were justified by constitutional directions of legislation on these subjects. Sample v. Pittsburg, 212 Pa. 533; ante, § 163 and notes. Pell v. Newark, 40 N. J. L. 71; aff'd 40 N. J. L. 550. Pell v. Newark, 40 N. J. L. 71. Scranton v. Whyte, 148 Pa. 419. 10 Ib. 2 mination of when, where, in what manner, and to what extent the city will enter upon and appropriate private property in the exercise of the right of eminent domain; the creation and formation of a system of parks and public fisheries, the cost of which is imposed upon a municipality; the payment of a claim by a city.3 Licensing and regulating races and race tracks within municipalities relate to the affairs of municipalities, and statutes conferring power in relation thereto must conform to the constitutional prohibition. An act for the classification of real estate and other property for purposes of taxation, for the election of assessors and to prescribe the duties of assessors in cities of the second class, relates to a subject of municipal government within the reasons for the classification of cities, and when founded on an appropriate classification, is a general law and constitutional. The examination of property for taxation is not inherently a judicial proceeding. What appeals to the court shall be allowed, in what manner they shall be taken or conducted, and what shall be their effect, are matters of affirmative statutory regulation, and a statute for such a purpose is not to be regarded as a regulation of the jurisdiction or the practice of the courts, although it may contain provisions relating to appeals to the courts." 166. Ordinances. If a municipal corporation is organized and exists under a constitutional law, an ordinance which is within its statutory authority is not affected by the prohibition of the Constitution against the enactment of special laws. That prohibition restricts only the legislature in the enactment of laws affecting munici 404. 1 Pittsburgh's Petition, 138 Pa. 401, 2 Albright v. Sussex County Lake & Park Commission, 68 N. J. L. 523. * Conlon v. San Francisco, 114 Cal. 404. judge, prosecuting attorney, and clerk of court, State v. Anderson, 44 Ohio St. 247; conferring the control and management of a hospital with power to make rules for its government, State v. Cincinnati, 23 Ohio St. 445; In Ohio the constitutional prohibi- creating a board of control with aution of special laws "conferring cor- thority over water-works, public imporate powers" is applied to munici- provements, parks, police and fire depalities, and it has been held that partments, State v. Pugh, 43 Ohio St. statutes on the following subjects con- 98; the organization and support of fer corporate powers within the mean- a police force, State v. Jones, 66 Ohio ing of the constitutional provision: St. 453; authorizing the issue of bonds, statutes investing municipal corpora- German-American Investment Co. v. tions with additional powers of munic- Youngstown, 68 Fed. Rep. 452; Cinipal government, of police regulation, cinnati v. Trustees of Hospital, 66 Ohio of judicial jurisdiction, and of taxation St. 440. and assessment, State v. Cincinnati, 20 Ohio St. 18; authorizing the election of a police board, State v. Constantine, 42 Ohio St. 437; authorizing the Pa. 490. election or appointment of a police L. 71. 5 Alexander v. Elizabeth, 56 N. J. Philadelphia Co.'s Petition, 210 pal affairs, and in no wise affects the municipality in exercising or not exercising the power with which it is lawfully invested.1 § 167. Repeals. The purpose of the constitutional prohibition of special laws is to produce general laws operating upon all municipalities similarly situated. If a repeal of existing statutes tends to this result, it is not in itself a violation of the constitutional prohibition. An act repealing all special laws and leaving the municipalities having special charters subject to the general rule applicable to all municipalities of the same class is not a local or special law within the prohibition of the Constitution, nor is an act repealing all special limitations, leaving all other provisions of the special acts in force. The general rule is that a previous local statute is not repealed by a subsequent general statute unless words of repeal are employed for the purpose, or the intention to repeal is People v. Cooper, 83 Ill. 585, 591; People v. Board of Trustees, 170 Ill. 468. See also Chicago General R. Co. v. Chicago, 176 Ill. 253; Kersey v. Terre Haute, 161 Ind. 471. See chapter on Ordinances, post. But in Harrodsburgh v. Renfro, 22 Ky. Law Rep. 806, 58 S. W. Rep. 795, a city ordinance fixing a certain fee for license to sell liquor on any street other than Main Street, and fixing a larger fee for license to sell on that street, was held to be invalid to the extent that it discriminated against business conducted on Main Street, being to that extent special legislation. The court said that the spirit of the Constitution is that laws shall be uniform within the limit of the law-making power, and that all taxation shall be equal and uniform within the territorial limitation of the authority levying the tax. The State legislature is prohibited from making local and special legislation, and the council of a city cannot enact special or local legislation to apply to a part of the territory or to a special person within the limits of the city. It has also been held that the constitutional requirement that laws of a general nature shall have a uniform operation does not apply to ordinances. Hellman v. Shoulters, 114 Cal. 136; Ex parte Zhizhuzza, 147 Cal. 328. But in Pacific Junction v. Dyer, 94 Iowa, 38, an ordinance discriminating in favor of resident merchants and against all others by imposing a license on transient merchants doing business within the town was held to be uncon stitutional under the requirement of the Iowa Constitution that laws of a general nature shall have a uniform operation. The court remarked that the town derived its power from the legislature, and could not do what the legislature could not do. See also Marshalltown v. Blum, 58 Iowa, 184. See chapter on Taxation, post. In State v. Omaha & C. B. R. Co., 113 Iowa, 30, it was held that a city ordinance giving residents the special privilege of obtaining transportation on a street railroad at a less rate than non-residents, did not operate uniformly as to all persons entitled to ride on the cars, and violated the provision of the Iowa Constitution requiring all laws of a general nature to have a uniform operation. In Ex parte Fritz, 86 Miss. 210, it was held that an ordinance of a board of supervisors of a county, regulating the taking of fish therein, applying to all the lakes and streams in the county, and adopted in pursuance of authority conferred by a general act of the legislature, is not special legislation. 2 Cleveland, C. C. & St. L. R. Co. v. Randle, 183 Ill. 364. A special act repealing by implication a provision of a city charter does not amend the charter within the meaning of the constitutional provision that the legislature shall not pass a special, private, or local law amending, confirming, or extending the charter of a municipal corporation, and is not violative of the provision. State v. Hubbard, 148 Ala. 391; 41 So. Rep. 903. clear.' The repeal of a special law will not be implied from the enactment of a general law unless there is such a conflict between their provisions that both cannot stand. But this rule cannot always be applied when the later statute is a general law applicable to a class, and enacted in that form in obedience to the constitutional requirement. The general rule is one of construction adopted to settle judicially the legislative intent in the absence of words declaring such intent. In classification acts, however, the legislative intent is fully expressed; the nature and purpose of classification acts and the laws enacted for the separate classes are of a character to exclude the operation of the general rule. They are intended to revise the rules of law relating to municipal affairs so as to reduce all former types and forms of municipal government almost as numerous as the cities in the State to a single rule for each class, and to substitute the class form in lieu of the previously existing forms in every city of the class. If a law relating to cities of any given class should be held to exclude or to be inoperative in one or more members of the class, it must, under the Constitution, be inoperative in all and fall together. Whenever, therefore, any law regulating municipal affairs of cities of a given class is found to conflict with a previous local statute applicable to any member of the class relating to the same subject, the latter must give way by reason of the nature and purpose of class legislation. In this manner existing diversities will disappear, and uniformity throughout the class will be finally secured. But it was not the intent and meaning of the constitutional prohibition that all legislation should be con Shroder v. Lancaster, 170 Pa. 136, 156; Bell v. Allegheny County, 149 Pa. 381. See Index, Charter, Construction, Repeal. Edwards v. People, 88 Ill. 340; Cleveland, C. C. & St. L. R. Co. v. Randle, 183 Ill. 364. A general law applicable to a class of cities repeals inconsistent provisions contained in other general laws previously enacted applicable to all cities. Ex parte Jackson, 143 Cal. 564. Bowyer v. Camden, 50 N. J. L. 87; Haynes v. Cape May, 52 N. J. L. 180; Morris v. Bayonne, 53 N. J. L. 299; Road Commission v. Harrington Township, 54 N. J. L. 274; Catholic Protectory v. Kearney, 56 N. J. L. 385; Crookall v. Matthews, 61 N. J. L. 349; aff'd 62 N. J. L. 799; Matter of Troy Press Co., 187 N. Y. 279; Commonwealth v. MacFerron, 152 Pa. 244; Commonwealth v. Brown, 210 Pa. 29. A general law of uniform operation throughout the State does not contravene any provision of the Constitution merely because it incidentally modifies a special law. State v. Sullivan, 62 Minn. 283. A statute which provides that in all the cities of the State the ordinances shall be published as in said act provided, applies to all cities and operates to repeal any special charter provisions inconsistent therewith. Bowyer v. Camden, 50 N. J. L. 87. A repealing clause in a statute which embodies substantive provisions is to be regarded as merely incidental and intended to permit the substantive provisions to operate without confusion. If the substantive provisions of the act are unconstitutional for lack of generality, the repealing clause is also void and inoperative. State v. Buckley, 60 Ohio St. 273. See Index, Repeal. |