City of Reading v. Savage

124 Pa. 328 | Pa. | 1889

Opinion,

Mr. 'Justice Green:

In the case of the Appeal of the City of Scranton School District, 113 Pa. 176, the question before us was the constitutionality of the proviso to the fifth section of the act of March 18, 1875. That proviso is in these words: “That no city, of the third class, nor any city of less population than ten thousand inhabitants, heretofore incorporated, shall become subject to the foregoing provisions of this act until the same are accepted by an ordinance duly passed by a majority of the members elected to each branch thereof voting in favor of the same and approved by the mayor.”

In its literal terms this is a disabling and an excluding enactment. No city of the third class, nor any city of less population than ten thousand inhabitants, previously incorporated, could become subject to the provisions of the act until the passage and approval of an appropriate ordinance, although such city might have already formally accepted the provisions of the act of May 23, 1874, by complying with the requirements of the fifty-seventh section of that act, and thereby entitled itself to a plane among the cities of the third class. The act of 1875, therefore, had no application to any of these cities in the first instance. Hence there was not, and there could not be, any class of cities covered by the description contained in the proviso, until a class was made up by individual accessions, which, naturally, would occur, if at all, only in an isolated and special maimer. As to all those which had been previously incorporated, a double acceptance was made necessary, first of the provisions of the act of 1874 under the fifty-seventh section of that act, and second, of the provisions of the act of 1875 under the proviso of the fifth section. The proe. edings upon acceptance under the two acts are quite dissimilar, and without a strict conformity to both no city previously incorporated could have the benefit of the act of 1875. Those cities which in reality did accept under both acts would thus in fact become a class by themselves, and that class could only be made up by individual accessions from time to time. But it might very easily happen that only a single city, or at most a few, would adopt the double acceptance made necessary by the act of 1875, and in that event the new class thus created would be limited to that one or those few. This result, which was entirely possible, made the legislation local and brought it into conflict with the seventh section of the third article of the constitution. This is what was decided, and all that was intended to be decided, in the Scranton School District case.

In the present case the question for decision is upon the effect of the fifty-seventh section of the act of May 28,1874, P. Tv. 280. The material portion of that section is in these words: “ Any city of the third class, or any city of less population than ten thousand inhabitants, heretofore incorporated, may become subject to the provisions of this act governing cities of the third class to be hereinafter incorporated; and the mayor and councils of such city may effect the same by an ordinance thereof duly passed by a majority of the members elected to each branch thereof voting in favor of the same.”

This is an enabling, and in no sense a disabling enactment. The act in its previous sections had provided for the establishment of a class of cities to be called cities of the third class and to be thereafter incorporated. This portion of the act had universal application over all parts of the state and is clearly a general law. Into this class it was made competent for any city having the requisite population, and also for any city having less than ten thousand inhabitants, but all of which had been previously incorporated, to come, so as to be governed by those provisions of the act of 1874 which relate to the government of cities of the third class, by pursuing the directions of the fifty-seventh section. Those directions provide practically for the properly authenticated surrender of the old charter, and formal acceptance of the provisions of the act of 1874, with a suitable protection for special privileges and franchises not inconsistent with the act, and for other matters of detail incident to the change. When the requirements of the fifty-seventh section are complied with in any given case of a preexisting city, such city enters into the third class of cities whose future incorporation has been provided for, and becomes a constituent part thereof. No city is prevented from doing this, and all have the opportunity of doing it. Those that do not embrace the opportunity simply remain as they were before, and all that do embrace it become members of a class whose existence and all the elements of whose government are regulated by general law. There is no possibility of any exercise of the powers or privileges, conferred by the fifty-seventh section, which can work affirmatively a local or special result. Whatever is done by virtue of this section simply converts that which was, or might be, local or special, into that which is general. In no manner can that which is local in city charters be accomplished by accepting the provisions of the section, and therefore we are of opinion that the section is not in conflict with the constitution. Something of these views has found expression in the cases of Evans v. Phillipi, 117 Pa. 226, and In re Henry St., 123 Pa. 346.

Doubt having arisen in our minds respecting the correctness of our first decision of the present case we ordered its re-argument of our own motion, so that there might be a further consideration of the question involved. After a more exhaustive argument and a deliberate review of our former judgment, we are satisfied it was a mistake and we therefore correct it. It is satisfactory to know that while the case is still within our reach we are able to correct our own error. It follows that the judgment of the court below must be reversed.