No. 117 Miscellaneous Docket | Pa. | Jun 22, 1905
Lead Opinion
Opinion by
This is a bill filed in this court by the plaintiffs, who are citizens and taxpayers of Allegheny City, to restrain the defendants, the city of Pittsburg and William B. Hays, mayor, James S. Wightman, president of select council, and R. B. Ward, president of common council, from taking any proceedings to annex the city of Allegheny to the city of Pitts-burg under the provisions of an act of assembly, commonly known as the “Cook law,” entitled “An act providing that where two cities are contiguous, and in the same county, the smaller may be annexed to the larger;, prescribing the method of proceeding and the effect of annexation ; providing for the division of such enlarged cities into wards, for the apportionment of common council, and for the indebtedness of such cities,” approved April 20, 1905, P. L. 221.
It appears from the averments of the bill that the city of Pittsburg through its mayor and councils have instituted proceedings in the court of quarter sessions of Allegheny county to. have the city of Allegheny annexed to the city of Pittsburg under this act of assembly. The bill avers, inter alia, that the two cities are cities of the second class, located in Allegheny county, and are separated from each other by the Allegheny river and the Ohio river, both navigable streams; “ that the said two cities of Pittsburg and Allegheny are the only two contiguous cities in the state of Pennsylvania, and are the only two cities in any county in the state that are contiguous; that there is no other locality in the state of Pennsylvania where there are two cities as classified under the laws of Pennsylvania, nor is there any other locality in the state where any borough or township is contiguous to a city that can be annexed thereto under the present laws of the state of Pennsylvania except by a majority vote of the electors of said borough or town as provided by the constitution of Pennsylvania ; ” and that “ the Cook law, under which the defendants are proceeding, is unconstitutional because prohibited by article III, section 7, subdivision 2 of the constitution, which provides that the general
The first section of the act of 1905 provides, inter alia, that where two cities, situate in the same county, are or may be contiguous to each other, the city having the smaller population, as shown by the last preceding United States census, may be annexed to the city having the larger population, as shown by the said census. It is further provided in this section that “ for purposes of this act, cities separated by a stream, river or highway shall be included under the term contiguous.” The act then, in several sections, provides in detail the proceedings which shall be taken to carry it into effect.
The subject of this statute is the annexation of one city to another, and it requires no argument to show, and we understand it is conceded, that it must be regulated b}r general legislation. A careful consideration of the act, however, convinces us that it was not intended to be general in its operation throughout the state and that it clearly offends against sec. 7 of article III of the constitution of 1874 which provides that “ the general assembly shall not pass any local or special law .... regulating the affairs of counties, cities, townships,
This section of the constitution has frequently been the subject of interpretation by this court. Commonwealth v. Patton, 88 Pa. 258" court="Pa." date_filed="1879-01-06" href="https://app.midpage.ai/document/commonwealth-ex-rel-fertig-v-patton-6235957?utm_source=webapp" opinion_id="6235957">88 Pa. 258, involved the constitutionality of an act of assembly entitled : “ An act to provide for the holding of courts in certain cities of this commonwealth.” The act required that in all counties containing a certain population and having a city with a certain population, situate at a certain distance from the county seat, the judge of the courts of the county should hold a session of court in such city after every regular term of court for the county. This court held the act to be special legislation and in conflict with article III, sec. 7 of the constitution. The trial judge in that case found that Crawford county was the only county to which the act could apply at that time. Mr. Justice Paxsox delivering the opinion says (p. 260) : “ This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titusville, with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or all counties with a population of over sixty thousand, watered by a certain river or bounded by a certain mountain? There can be no proper classification of cities or counties except by population. The moment we resort to geographical distinctions we enter the domain of special legislation, for the reason that such classification operates on certain cities or counties to the perpetual exclusion of all others. . . . That is not classification which merely designates one county in the commonwealth, and contains no provision by which any other county may, by reason of its increase of population in the future, come within the class.” A subsequent and similar act intended to accomplish
McCarthy v. Commonwealth, 110 Pa. 243" court="Pa." date_filed="1885-10-05" href="https://app.midpage.ai/document/mccarthy-v-commonwealth-ex-rel-griffiths-6238141?utm_source=webapp" opinion_id="6238141">110 Pa. 243, involved the consideration of an act providing for payment of salaries instead of fees to county officers and requiring the officers to pay the fees to the treasurer in counties containing a certain population. The act was held to be special legislation and void. In delivering the opinion, Mr. Justice Gordon says (p. 246) : “ But by what process of reasoning is this legislation, which has selected for its operation three or four counties from all those composing the commonwealth, to be justified? Is the justification to be found in the well-recognized legislative power of classification? We think not. It is admitted that classification, even where not specially recognized by nature, custom, the laws of trade, or the constitution, must, in certain cases, be adopted ex necessitate, as in the case of cities, under the Act of May 23, 1874, P. L. 280. . . . There is here, however, a new and complete classification, and not a mere cutting out of one or more cities, designated by population, from the general class, and in this the act of 1874 is distinguishable from that of 1883 (the one then under consideration), in which no general classification is attempted, but a special legislation adopted for certain counties selected from all others,
In Davis v. Clark, 106 Pa. 377" court="Pa." date_filed="1884-10-06" href="https://app.midpage.ai/document/davis-v-clark-6237776?utm_source=webapp" opinion_id="6237776">106 Pa. 377, an act giving the right to file a mechanic’s lien with a provision that it should not apply to counties having over a certain population was held to be local, and therefore void. Mercxjr, Chief Justice, in the opinion of the court says (p. 384) : “ The main contention is whether the act of 1879 is in conflict with this clause of the
From these and other decisions of the court, it is settled that the test whether a statute is local and special legislation within the prohibition of the constitution is whether it operates upon all counties or cities alike, and when they are properly classified, it acts upon all counties or cities of the same class alike, or whether it operates upon certain counties or certain cities or upon a part of a class of counties or cities and excludes all others. If the latter is the result or effect of the act, and it was so intended to be, it is local or special nothwithstanding it is in terms general. The court will look at the substance and not the form of legislation in determining the question, and a local or special act, repugnant to the fundamental law, will be declared void though it may be disguised as a general act. Classification of cities may be used as a basis for legislation which relates to municipal affairs, but if the legislation concern subjects of general, as distinguished from a municipal character, it passes into the realm of local or special legislation forbidden by the constitution. However disguised, classification can never be successfully invoked for the purpose of evading the constitutional inhibition against local or special legislation.
The answer of the defendants raises the question of the right of the plaintiffs, citizens and taxpayers of Allegheny City, to maintain this bill and test the constitutionality of the act of 1905. We think this question too well settled to require extended discussion: Wells v. Bain, 75 Pa. 39" court="Pa." date_filed="1873-12-06" href="https://app.midpage.ai/document/wells-v-bain-6234702?utm_source=webapp" opinion_id="6234702">75 Pa. 39; Wheeler v. Philadelphia, 77 Pa. 338" court="Pa." date_filed="1875-02-15" href="https://app.midpage.ai/document/wheeler-v-philadelphia-6234928?utm_source=webapp" opinion_id="6234928">77 Pa. 338; Pittsburg’s Appeal, 79 Pa. 317" court="Pa." date_filed="1875-10-14" href="https://app.midpage.ai/document/pittsburgs-appeal-6235089?utm_source=webapp" opinion_id="6235089">79 Pa. 317. This last case was a bill to restrain the city of Pittsburg and its officers from exercising authority over an adjacent municipality admitted to the city by an ordinance passed in pursuance of an act of assembly, the provisions of which the plaintiffs, citizens and taxpayers of the municipality, claimed had not been complied with by councils in admitting the municipality as part of the city. The defendants de
There can be no doubt that the act of 1905 regulates the “ affairs of cities ” in contemplation of the constitution. In Morrison v. Bachert, 112 Pa. 322" court="Pa." date_filed="1886-04-12" href="https://app.midpage.ai/document/morrison-v-bachert-6238325?utm_source=webapp" opinion_id="6238325">112 Pa. 322 the trial court defined “ affairs of counties ” to be such “ as concern counties in their governmental and corporate capacity.” This court, however, thought the definition too narrow a construction of these words and held that “ When it (the constitution) speaks of the affairs of a county, it means such affairs as affect the people of that county.” In that case it was held that an act to ascertain and appoint the fees to be received by certain county officers was an act regulating the affairs of counties. This construction of the clause in question was followed and approved in Frost v. Cherry, 122 Pa. 417" court="Pa." date_filed="1888-10-17" href="https://app.midpage.ai/document/frost-v-cherry-6239065?utm_source=webapp" opinion_id="6239065">122 Pa. 417, where it was held that this clause of the constitution avoided an act of assembly repealing a section of the fence law of 1700. And in Commonwealth v. Patton, 88 Pa. 258" court="Pa." date_filed="1879-01-06" href="https://app.midpage.ai/document/commonwealth-ex-rel-fertig-v-patton-6235957?utm_source=webapp" opinion_id="6235957">88 Pa. 258, and in Scowden’s Appeal, 96 Pa. 422" court="Pa." date_filed="1881-01-03" href="https://app.midpage.ai/document/scowdens-appeal-6236774?utm_source=webapp" opinion_id="6236774">96 Pa. 422, this court held that an act of assembly authorizing the holding of special sessions of the courts of certain counties away from the county seat was a law regulating the affairs of counties and was special legislation and void. In Perkins v. Philadelphia, 156 Pa. 554" court="Pa." date_filed="1893-10-02" href="https://app.midpage.ai/document/perkins-v-philadelphia-6241711?utm_source=webapp" opinion_id="6241711">156 Pa. 554, it was held that an act of assembly “ regulates the affairs of the city ” which abolished the commissioners of public buildings and placed all public buildings theretofore under their control in the control of one of the departments of the city government. The act under consideration here not only affects the people of the two cities but concerns the two cities in their governmental and corporate capacities. It enlarges the territory and population of one,
Is the legislation in question of local or special operation and, therefore, within the prohibition of article III, section 7 of the constitution ? This is the vital and controlling question in the case and, under the well-established rules of constitutional interpretation and our - own construction of the clause in question, it must be answered in the affirmative. The title of the act clearly indicates the subject of the enacting part and discloses the local and special features of the statute. It shows that the act' was not intended to apply to any two cities of the state so as to make it general in its operation, but conditions are imposed which restrict its application to certain cities, thereby depriving the other cities of the state of the benefit of its provisions. The statute is operative “ where two cities are contiguous and in the same county.” Its provisions can be invoked to annex only two cities and when they are thus situated. Two cities of this description may be annexed to each other and all others are excluded from the operation of the statute. As wé take judicial cognizance of the municipal divisions of the state as well as of their location, we know as averred in the bill and not denied in the answer, that the cities of Allegheny and Pittsburg in Allegheny county are the only two contiguous cities in the state, and that there are no two contiguous cities in any other county in the state. The act, therefore, is limited in its operation to these two cities, and the effect or result of the legislation is the same, and the act as clearly special, as if the names of the two cities had been written in the statute instead of the periphrase used in the description of the cities subject to its operation.
The identification to the two cities intended to be affected by the act is also aided by the provision of the statute that “ for purposes of this act, cities separated by a stream, river or highway shall be included under the term contiguous.” Aside from the contention that the act applies only to cities separated by a stream, river or highway, this clause of the act clearly suggests the two Allegheny county cities as the cities subject to its operation. We judicially know that Pittsburg and Allegheny are the only two cities in the commonwealth
There is no merit in the contention that at some time in the future there may be two other cities which may become contiguous and in that event can be consolidated under the provisions of the act. With a knowledge of the facts, known to the legislature as well as to the court, this is not within the range of probability, but a possibility so remote that it must be excluded from consideration in determining.the constitutionality of the statute. It could only occur if a community adjacent to any of the cities of the state should become sufficiently populous to enable it to become a city and should take the necessary legal steps to make, itself a city and subject to the operation of the act, or if the boroughs lying between and connecting certain cities of the state should, by the requisite legal proceedings, be annexed to those cities or form themselves into a city and thereby connect two existing cities so as to make the act operative. These are simply contingencies within the realm of speculation and entirely too remote to support legislation otherwise repugnant to the constitutional mandate.
The statute requires any two cities desirous of availing themselves of its provisions to be located in the same county. This confines the act in its operation to cities within certain territorial limits and brings it within the domain of special legislation, prohibited by the constitution. The act does not attempt to classify cities on any basis whatever. It provides simply that it shall operate upon two cities situated in the same county. It, therefore, excludes from its provisions and denies its privileges to all cities separated by a county line, or which are not wholly within the same county, although occupying contiguous territory. All cities whose boundaries are coter■minus with the county line are perpetually excluded from the operation of the statute, although other cities may adjoin them at different parts of their boundaries. This distinction made
The present constitution went into effect almost a third of a century ago. Prior to its adoption, there was practically no constitutional restraint on the power of the general assembly to enact local or special legislation. As has been pointed out in the opinions of this court, one of the manifest objects of the adoption of the last constitution by the people of the state was to eradicate the evils of local and special legislation which had grown to such an extent as to make its abuse almost unendurable. Such was the purpose of sec. 7 of article III, which specifies more than fifty subjects on which the general assembly is prohibited from passing' any local or special law. Notwithstanding this emphatic and comprehensive declaration in the constitution against this species of legislation, there has not been a session of the general assembly since its adoption that the framers of legislation have not attempted to evade this provision of the instrument by all the ingenuity at their command. They have done this in the face of repeated warnings of this court that the constitutional mandate would be rigidly enforced. Nearly twenty years ago, in speaking of this provision of, the constitution and the intention of the court to compel a strict observance of it, in Morrison v. Bachert, 112 Pa. 322" court="Pa." date_filed="1886-04-12" href="https://app.midpage.ai/document/morrison-v-bachert-6238325?utm_source=webapp" opinion_id="6238325">112 Pa. 322, Mr. Justice Paxson said (p. 328) : “ It was a wise provision and will be sternly enforced. It is our purpose to adhere rigidly to that instrument, that the people may not be deprived of its benefits. It ought to be unnecessary for this court to make this judicial declaration, but it is proper to do so, in view of the amount of legislation
We are of opinion that the act of April 20, 1905, providing for the annexation of two contiguous cities in the same county, is local and special legislation within the prohibition of article III, sec. 7 of the constitution and is, therefore, void. It follows that the defendants are without authority to institute or maintain the proceedings taken by them for the purpose of annexing the city of Allegheny to the city of Pitts-burg, and that the plaintiffs are entitled to the relief prayed for in the bill.
decree.
This cause came on to be heard on bill and answer and was argued by counsel, and now, June 22,. 1905, after consideration, it is ordered and decreed that an injunction be issued perpetually restraining the city of Pittsburg, and William B. Hays, mayor, James S. Wightman, president of select council, and R. B. Ward, president of common council of the city of Pittsburg, and each of them, from taking or maintaining any proceedings under the act of assembly, approved April 20, 1905, for the purpose of annexing the city of Allegheny to the city of Pittsburg. It is further ordered that the costs of this proceeding be paid by the city of Pittsburg.
Dissenting Opinion
Mr. Justice Potter,
I am not able to agree with the reasoning of the opinion which has been adopted by the majority of the court in this case, nor to accept the conclusion therein set forth. Even if it be true that the act in question was intended to facilitate the union of Pittsburg and Allegheny, yet that fact cannot in
The act of April 20, 1905, provides for the consolidation of any two contiguous cities situate in the same county, in the state. It must be admitted that any “ two contiguous cities ” is a general expression. It matters not at how many or how few places in the state there may be two cities which are contiguous. Wherever and whenever there are such, the act would apply. As Mr. Binney says, if the classification be valid, the number of members in a class is wholly immaterial. So that it makes no difference whether there be one or one hundred places in the state which will at the present time fit the conditions of the act, so long as the way is open for other places to come in, as occasion may arise.
But it is suggested that the further limitation of the operation of the act, to cases where two contiguous cities are “ situate in the same county,” makes it local. But why so ? In so far as the language of the act is concerned, no county in the state is excluded from its operation. There are sound reasons why no city should be allowed to extend beyond the boundaries of a single county, and the limitation in that respect, if general, is legitimate.
Under the Act of February 2, 1854, P. L. 21, a local act applying to Philadelphia, it is provided that the boundaries of Philadelphia shall be extended so as to embrace the whole of the territory of the county of Philadelphia. And it is suggested that because there cannot therefore be two contiguous cities in Philadelphia county, that county is excluded from
But this court decided squarely in Evans v. Phillipi, 117 Pa. 226" court="Pa." date_filed="1887-10-17" href="https://app.midpage.ai/document/evans-v-phillipi-6238721?utm_source=webapp" opinion_id="6238721">117 Pa. 226, that a statute, general in form, is not to be treated as a local one, simply because of the intervention of some local statute, unrepealed, which prevents it from fairing general effect.
Aside from that, it is difficult to see why the fact that one county in the state is already so filled with a city as to leave room for no other contiguous city within its boundaries, should be any more of an obstacle to the efficiency of a general law, than the fact that in many counties of the state no cities at all exist at the present time. The local act governing Philadelphia may be repealed; and that county may be enlarged, in which case this act would apply to every county in the state. And contiguous cities may grow up in any county, which, under the terms of this act, may in due time be annexed to each other and consolidated into one municipality.
I would uphold the constitutionality of the act of May 20, 1905, and dismiss this bill.