57 Minn. 47 | Minn. | 1894
The only point made on this appeal is that Laws 1893, .ch. 210, entitled “An act to authorize the construction of tunnels by cities in certain cases,” is invalid. Several objections to the act are alleged; but the only one which we find it necessary to consider is that it is in violation of the constitution, Art. 4, § 33, as amended in 1892, which provides that “the legislature shall pass no local or special law regulating the affairs of * * * any county, city, village,” etc.; also, that “the legislature may repeal any existing special or local law, but shall not amend, extend or modify any of the same.” We have had occasion so recently, in State ex rel. v. Cooley, 56 Minn. 540, (58 N W. 150,) to fully consider this constitutional provision, that no extended discussion of its construction or application is required at this time. We discover nothing in the first section of the act that is obnoxious to the constitutional provision referred to. It authorizes any city which is or shall be so divided by unbridged navigable waters that portions thereof are inaccessible to each other, except by water transportation, if, in the opinion of the city council, the bridging of such water way would be impracticable, and the public interests require it, to construct a tunnel under such water way, so as to connect the divided portions of the city. It seems clear to us the physical condition of things here stated constitutes such substantial distinctions “as to suggest the necessity of different legislation with respect to it.”
But it seems to us that the second section of the act is clearly repugnant to the constitution. After providing that property specially benefited by the improvement may be charged and assessed for a part of the expense, it then provides that “all proceedings with reference to such improvement and the mailing of the contract therefor, and the making and enforcement of assessments and re-assessments therefor, and for the procurement of funds for carrying on the work upon said improvement including all proceedings for the exercise of the power of eminent domain in connection with said improvement, shall, except as herein otherwise provided, conform as nearly as the nature of the case will admit, to proceedings which at the time shall obtain in the particular city, with reference' to the grading and improvement of streets and the assessments therefor, it being the intention hereof that said improvement shall be considered as equivalent to the opening, grading and paving or macadamizing of a street, and subject, except as herein otherwise expressed, to the provisions of the several city charters with respect to the said last named improvements * * * and assessments therefor shall * * * be divided into the greatest number of annual installments, if any, which in the particular city may be admissible with reference to assessments for the grading, paving or macadamizing of streets.”
If cities were organized and governed under and by a general law operating uniformly on all cities in the state, or upon all of each class, according to a proper basis of classification, it would have been entirely competent for the legislature to adopt the provisions of such a law by reference, and apply them, without repeating them in this act. But that is not the situation. We will take judicial notice of the fact that most, if not all, cities were, at the date of the adoption of the constitutional amendment, and still are, organized and governed under special charters containing about as many, diverse provisions on the subjects enumerated in the second section of this act as there are charters. It would, perhaps, be difficult to find any two city charters whose provisions on these subjects are
But instead of passing a general law, the provisions of which would operate uniformly on all cities, or all cities of the same class, the legislature has attempted, as to all matters specified in the second section, to adopt this whole mass of existing diverse special legislation, and extend its application to another and new class of cases, so that in proceedings to construct tunnels, under the act, there will be as many different laws as there are special city charters. This cannot be done. As is said in Fitzgerald v. New Brunswick, 47 N. J. Law, 484, (1 Atl. 496:) “The recognition of such local legislation by relying upon it as a foundation for new legislation which only changes, perpetuates, or perhaps increases, the previous local or special features created by special charters, is as inimical to the constitutional provision as if the last legislation created the diversity which it perpetuates. If all the special features of our city charters can be changed [or extended] with only the feeble restriction that the statute which changes [or extends] them shall apply to any other city or cities which may have similar features, then it will be a distant day when that homogeneity in municipal government of the state which the constitutional amendment was designed to bring about will be attained.” Previous special legislation can never be made the basis of classification, and the legislature cannot touch it, except to repeal it.
Our view is that, under this constitutional amendment, any legislation touching any branch of city government must reduce all cities, or all cities of the same class, to uniformity in respect to the particular with which the legislation deals, and that this uniformity in the exercise of a granted power must be produced as to the mode, as well as to the causes, of its exercise. How far the second section of this act falls short of this will be apparent when it is considered that the situation is the same as if it expressly enacted, seriatim, all the diverse provisions of the various city charters on the subjects referred to.
The first part of the third section of the act is perhaps subject to the same objection, but we have no occasion to consider it
The other provisions of the statute are so connected with, and
Order reversed.
(Opinion published 58 N. W. 866.)
