lating to local improvements; 13 an act to provide for the establishment of boulevards and to regulate the traffic thereon; 14 an act relating to the compensation of probate judges; 15 an act relating to the punishment of election. frauds. 16 In Henderson v. Koenig there is a review of the cases and an attempt to explain them." And in the last two cases réferred to, which are very recent, it is held that no legislation for St. Louis as a class is valid, if on a subject where a general law exists or can be made applicable. 13 Acts applying to one of the legislative classes are held valid, but a particular act applicable to cities of a specified population, which does not correspond with either of the 13 Murnane v. St. Louis, 123 Mo. could not have been made appli479, 27 S. W. 711. cable by reason of the fact that the legislation questioned was the result of direct obedience to some specific command of the constitution. This 14 St. Louis v. Dorr, 145 Mo. 466, 41 S. W. 1094, 46 S. W. 976. 68 Am. St. Rep. 575, 42 L. R. A. 686. 15 Henderson v. Koenig, 168 Mo. statement will be found to embrace 356, 68 S. W. 72. all the cases decided on this subject. 16 State v. Anslinger, 171 Mo. 600, In this case, however, there is no 71 S. W. 1041. 17 The court says: "But the assertion is made that cases have been decided by this court when local or special legislation, that is to say, legislation applicable alone to the city of St. Louis, or alone to Kansas City, has been held valid. This is true, but in the decisions in none of these cases was there any expression or ruling which impinges in the slightest degree on the constitutional prohibition against a local or special law being enacted where a general law could have been made applicable; on the contrary, either distinct or else implied recog nition is constantly given to the idea that, owing to the circumstances and exigencies of the particular case, a general law could not have been made applicable, or where it command of the constitution requiring the general assembly to regulate respecting the compensation to be awarded the judge of probate of the city of St. Louis. Nor is there any exigency requiring such legislation and confining its operation, as does this act in question, to the city of St. Louis alone. There are cases where this court has said an act would have been valid applied to St. Louis by name; but this court has never said this of an act where a general law could have been made applicable, but only in cases where it could not." Henderson v. Koenig, 168 Mo. 356, 376, 377, 68 S. W. 72. 18 Copeland v. St. Joseph, 126 Mo. 417, 29 S. W. 281; State v. Fleming, 147 Mo. 1, 44 S. W. 758. four classes, creates a fifth class in violation of the constitution and is void.19 It is also held that laws applicable to a class of cities must actually operate in each city of the class and cannot be left to operate in such cities only as may adopt the act by popular vote.20 Cities under special charters are held to constitute a separate and distinct class," and an act authorizing cities under special charters, and containing more than 30,000 and less than 50,000 inhabitants, to construct a system of sewers, was held to be a general law and valid.22 § 207. Same-New Jersey. The constitution forbids local or special legislation regulating the internal affairs of municipalities, and such legislation must be general and applicable to all alike, except where, by reason of the existence of a substantial difference between municipalities, a general law would be inappropriate to some while it would be appropriate to others. In such case the municipalities in which the peculiarity exists would constitute a class, and 19 State v. Borden, 164 Mo. 221, 64 produce diverse powers the moS. W. 272. ment such laws are put into practical operation. How can it be said that when this act went into effect in Westport, and did not go into operation in all those cities of the fourth class which declined to avail themselves of it, that it was uniform in all cities of the fourth class? It certainly cannot be said by the suggestion that it was possible for all cities of that class to adopt it and thereby again bring about the uniformity which the adoption by some and neglect to adopt by others had destroyed." p. 442. 20 Owen v. Baer, 154 Mo. 434, 55 S. W. 644. The court says: "That the result of all legislation for the several classes of cities was the object which the convention had in view is obvious. It says 'the power of each class shall be defined by general laws,' so that 'all municipal corporations of the same class shall have the same powers.' In a word, pass general laws for the government of each class, but see to it that when your laws go into effect, the consequences shall be that each class shall at all times have the same powers and be subject to the same provisions; that is to say, you shall not go through the form of passing general laws which nominally confer the same powers upon a given class, but which inevitably 21 Murnane v. St. Louis, 123 Mo. 479, 27 S. W. 711. 22 Rutherford v. Heddens, 82 Mo. 388; Rutherford v. Hamilton, 97 Mo. 543, 11 S. W. 249. the legislation would in fact be general because it would apply to all to which it would be appropriate.23 An act concerning inns and taverns gave the court of common pleas the power to grant such license, but the act was restricted to cities, towns and counties by population so as to indicate an intention that it should operate in but three small towns in one county. It was objected that it was local and special, as there was no distinction of those towns from other municipalities which would in any reasonable degree account for such restriction. The court held the act unconstitutional.24 The court said the constitutional provisions against special or local laws regulating the internal affairs of municipal corporations and political divisions of the state was to secure uniformity. "The uniformity that is thus sought can only be broken by classifications of those bodies that are founded on substantial differences, such as are not illusory or fraudulent in their character." 25 An act purporting to confer on cities having a population of twenty-five thousand a power of issuing bonds to fund their floating debt was held special, and unconstitutional on account of its operation being restricted to cities of that magnitude. There was deemed to be no connection between the number of people in a city and the right to fund its floating debt. Where an act provided for a change in the management of the internal affairs of towns and boroughs which were seaside resorts and then governed by 23 Van Giesen v. Bloomfield, 47 N. J. L. 442, 2 Atl. 249; Hudson v. Buck, 51 N. J. L. 155, 16 Atl. 698; Atlantic City W. W. Co. v. Consumers' Water Co., 44 N. J. Eq. 427, 15 Atl. 581. 24 Zeigler v. Gaddis, 44 N. J. L. 363. 25 Id.; Coutieri v. New Brunswick, 44 N. J. L. 58; Reading v. Savage, 124 Pa. St. 328. 26 Anderson v. Trenton, 42 N. J. L. 486. A classification may be sus tained where the differences are not extreme, but exist. The test would not then be judicial, depending on whether the law was special, but legislative, whether wise or not. Wheeler v. Philadelphia, 77 Pa. St. 338; Kilgore v. Magee. 85 id. 401; Rutgers v. New Brunswick, 42 N. J. L. 51; Skinner v. Collector, id. 407; Fellows v. Walker, 39 Fed. 651. commissioners, the court held it came within the constitutional interdict. The whole statute by its terms was confined to seaside resorts governed by boards of commissioners. The individuals thus grouped into a class by legis lative enactment are distinguished from other municipalities by these two features only, and the court said: "Consequently, no legislation touching this class alone is constitutional, unless it properly relates to these peculiarities. We cannot see how the section under review is so related. That the power to expend the road tax of a municipality on its streets should be vested in its own governing body, rather than in the committee of the township of which its terri tory forms a part, is a proposition which seems to have no natural connection with the facts that the municipality is a seaside resort, and that its governing body is styled a board of commissioners." 28 So far the first edition. Since that edition was published there have been numerous decisions in the state arising out of the constitutional provision in question. In a very recent case the court of errors and appeals, after referring to a great number of New Jersey cases, says: "The principle deducible from all the decisions above cited is this: that the 27 Ross v. Winsor, 48 N. J. L. 95, matter of the legislation all cities 2 Atl. 658. 28 In Closson v. Trenton, 48 N. J. L. 438, 9 Atl. 719, the act in question was to establish a license and excise department in certain cities containing more than fifteen thousand inhabitants, and in which the granting of licenses is not already vested in a board of excise or in the court of common pleas. It was held local and special. The court said: "There can be no reason suggested why cities with more than fifteen thousand inhabitants should have a system of granting licenses different from that of cities with a less population. In respect to the are a class, and an attempt to seg. regate cities into distinct classes for this purpose by a standard of population is not classification but an arbitrary selection of one or more localities." Hightstown v. Glenn, 47 N. J. L. 105; Gibbs v. Morgan, 39 N. J. Eq. 126; Tiger v. Morris Common Pleas, 42 N. J. L. 631; Ernst v. Morgan, 39 N. J. Eq. 391; Freeholders v. Stevenson, 46 N. J. L. 173; Alsbath v. Philbrick, 50 N. J. L. 581, 15 Atl. 587; Bray v. Hudson, 50 N. J. L. 82, 10 Atl. 135. See Dobbins v. Northampton, 50 N. J. L. 496, 14 Atl. 587. legislation which classifies municipalities in matters of their structure, machinery and powers on a basis of population, where population has reasonable relation to the necessities. of the municipalities so classified, as contradistinguished from others not so circumstanced, is good; and where it appears that such is the actual effect of the statute, the act is a general law, and, classification being solely a matter of legislative judgment, a legislative classification will always. prevail when it appears to be within the principle above. stated and there is no apparent attempt to apply it illusively." 29 Many recent cases are of the same purport.30 In 1882 the legislature passed an act making three classes of cities, as follows: First class, those exceeding 100,000 population; second class, those containing 12,000 to 100,000; third class, those with less than 12,000. In 1883 boroughs and villages were divided into three classes: First, those with more than 3,000 population; second, those with 1,500 to 3,000; third, those with less than 1,500.32 Where the subjectmatter of legislation bears a proper relation to population, 29 Hudson County v. Clarke, 65 N. J. L. 271, 279, 47 Atl. 478. In another case the same court says: "That our cities may be classified on the basis of population, under statutes relating to municipal affairs, when population bears a reasonable relation to the subject. matter of the legislation, has frequently been decided, but such relationship exists only when such legislation deals with the structure or machinery of municipal govern. ment. Classification on the basis of population, for any other purpose than those mentioned, is illusive and unsubstantial, and consequently is within the constitutional prohibition." State v. Trenton, 62 N. J. L. 795, 797, 44 Atl. 755. 30 State v. Clayton, 53 N. J. L. 277, 21 Atl. 1026; In re Haynes, 54 31 Laws of 1882, p. 47. |