Opinion by
It will conduce to the readier understanding of this case to state just how it comes before the court and the questions it raises.
The defendants are the water commissioners of the city of Reading, elected and holding office under a local Act of March 21, 1865, P. L. 455, a supplement to the city charter of April 26, 1864, P. L. 583. Their title to office is challenged by quo warranto at the relation of the attorney general.
In 1874 the city of Reading by ordinance duly accepted the Act of May 23, 1874, P. L. 230, and became a city of the third class. It is now, therefore, govеrned by the Act of May 23,
Defendants by answer to the information set up their title under the act of 1865, and the commonwealth in reply averred the repeal of the act of 1865 by the act of 1889. To this replication the defendants demurred on two grounds, first, that the act of 1889 does not reрeal the act of 1865, and secondly, that sec. 2 of the latter act by its language excluding one of the cities of the third class, namely, the city of Erie, is a local act and unconstitutional.
The learned judge passing on the first question pro forma only, held.that the act of 1889 was mandatory and repealed the act of 1865, but gave judgment in favor of the defendants' оn the second ground, holding sect. 2 of article XII unconstitutional. •
A. further question was raised with reference to the Act of June 4, 1901, P. L. 364, relating to liens for taxes and municipal improvements, but so mаnifestly irrelevant that it need not be further noticed.
We have therefore three questions presented, in the order of their significance in the case, first: Is section 2, article XII of thе act of 1889 constitutional; second, if so, is it mandatory; third, does it repeal the act of 1865 ?
The language of section 2, article XII, of the, act of 1889. is : “ Any city which now has the title to any water, gas or electric light works by a conveyance to the same in its corporate name, or which may hereafter erect- or purchase water, gas, or electric light works under the provisions of this act are (is) hereby empowered to create a department to be called the Water and Lighting Department,” etc. This act is “An act providing for the incorporation and government of cities of the third class,” and at the time of its passage the city of Erie, a city of the'third class, by virtue of its- previous acceрtance of the provisions of the act of 1874, had waterworks the title to which by conveyance’ was in the name of-its commissioners of waterworks under, the provisions of the spеcial Act of April 4, 1867, P. L. 768. The act of 1889, therefore, did not seem to
But this principle must not be applied arbitrarily without due reference to the facts of the particular case. While a classification which permanently еxcludes even one member of the class from its future operation is unconstitutional the fact that existing exceptions are not immediately abolished does not destroy the сonstitutionality of the act. It must not be forgotten that there is no constitutional requirement of uniformity (except in regard to taxation upon the same class of subjects). The constitutiоn requires only that legislation on certain subjects shall not be local or special, and uniformity is not in itself a substantial requirement, but one of the judicial tests of generality as opposed to localism or specialism: Com. ex rel. v. Middleton,
The other two questions are practically but one, for if the act of 1889 is mandatory to creаte a water department under section 2 of article XII then the local act of 1865 is neces
The language of section 2 is altogether permissive. It is “ any city,” whjch primarily refers to cities individually. It may include all, but does not necessarily do so. Then the city is “ empowered ” which is a grant of authority rather than a command to exercise it. Then the councils are “ authorized and empowered ” to divide the city into three districts, which “ shall ” be numbered, etc., and no member of councils “ shall ” be eligible as a member of the district boards, an accurаte change from permissive to imperative language at the point where certain things are intended to be made mandatory. Language permissive in form may of course be mandatory in intent and effect; but is not usually presumed to be so. The learned judge below gave much weight to the language of section 12 of the same article that the “ city counсils shall pass such ordinances, rules and regulations as may be necessary for carrying into effect the provisions of this article. ” But this does not seem to mean moré than that when a сity has exercised its authority by establishing a water department, it shall provide by ordinances, rules and regulations for its proper organization and government.
But the most significant indicatiоn of the legislative intent, and one that is controlling, is that section 2 itself shows that i f is not intended to apply to all cities of the third class. The language is “ any city which now has the title to any wаter, gas or electric light works by conveyance to the same in its corporate name,” thus clearly showing that there are, or may be, cities of the class, which will not come under this section,
The authority of the councils is ample at any time to establish a water department under section 2, and when they do the water commissioners under the act of 1865, will be superseded and functus officio, but until that is donе the act of 1865 is left in operation and the commissioners under it retain their authority.
Though as will be perceived, for entirely different reasons we think the result reached by the learned court below was right.
Judgment affirmed.