might in general language so describe such city as to make certain that the law would apply to that one only.

A striking instance of this kind of "general legislation" (though not relating to municipalities as such) arose under that clause of the New York Constitution which provides: 1

"The legislature shall not pass a private or local bill in any of the following Granting any corporation, association, or individual the right

to lay down railroad tracks."

66

Section 36 of the Railroad Act of 1875, commonly known as the Rapid Transit Act, made certain provisions with reference to any elevated steam railway or railways now in actual operation," permitting the company owning such railway to lay down certain additional tracks. There was only one railway which answered this description, and the legislation applied, and was intended to apply, only to this railway. The Court of Appeals held that the law was general.2 This decision has been taken as deciding that classification is a matter of almost, if not quite, unlimited legislative discretion. If it is unlimited, the clause in the Constitution

has obviously no effect.

1 Art. III. § 18.

2 Matter of Elevated Railway, 70 N. Y. 327, 350.

8 In the Matter of Church, 92 N. Y. 1, the Court of Appeals held that an act giving the Board of Supervisors in any county containing an incorporated city of over 100,000 inhabitants, where contiguous territory in the county has been mapped out into streets and avenues, power to lay out and open the same, is not a local law within the meaning of the state Constitution, Art. III. § 18, prohibiting the passage of a local or private law for laying out or opening highways.

So also in the Matter of New York & Long Island Bridge Company, 148 N. Y. 540, notwithstanding the provisions of Art. III. § 18 of the Constitution, prohibiting local legislation granting to any corporation the right to lay down railroad tracks, the court held the following act valid: "Any company incorporated for the purpose of constructing and maintaining a bridge or bridges over any river, bay, arm of the sea, or other body of water, connecting any city in the State of New York, containing more than one million inhabitants, with any other city in said state, is hereby empowered to lay tracks and operate a railway upon such bridge or bridges " (Chap. 225, Laws of 1893).

Judge O'Brien, in his dissenting opinion in the Matter of Henneberger, 155 N. Y. 420, 435, states, with regard to this act, what was common knowledge: "There never was the least doubt that the law was intended for but one place in the state, and that was a bridge across the East River from New York, and yet this Court held it to be valid as a general law." The same judge states, in the same case, p. 436, with reference to the act involved in the Church case, supra: "Indeed the later case was intended and admitted to be a law for a single county, since the conditions existed in no other county."

The utter uselessness under the above cases of the clauses in the New York Constitution prohibiting local legislation, has apparently led the Court of Appeals to

For many years the Ohio legislature, with the sanction of the courts, classified municipalities according to population to such. an extent as to be equivalent to legislation by name. The Revised Statutes provided:1.

"Municipal corporations are divided into cities, villages, and hamlets; cities are divided into two classes, first and second; cities of the first class are divided into three grades, first, second, and third; cities of the second class are divided into four grades, first, second, third, and fourth; cities of the second class, which hereafter become cities of the first class, shall constitute the fourth grade of the latter class; and villages, which hereafter become cities, shall belong to the fourth grade of the second class."

The next two sections divided cities of the first and second classes into grades, according to population, so that Cincinnati, Cleveland, Toledo, Columbus, and Dayton were each the only cities in their respective grades. Sandusky, Springfield, Hamilton, Portsmouth, Zanesville, and Akron were the only cities in the third grade of the second class, and all others were in the fourth grade. It would be a mistake, however, to suppose that legislation for even these last cities was uniform. I have taken up at random a volume of the session laws of Ohio the one for 1892

and on page 144 is an act as follows:

"that in any city which at the federal census of 1890 had, or which at any subsequent federal census may have, a population of not less than twentymodify the rule that it will not interfere with the legislative discretion in the matter of classification, for in the Matter of Henneberger, 155 N. Y. 420, that court, by a vote of four to three, held an act to be local and invalid although it was expressed in general language. The act in question (Chap. 286, Laws of 1897) provided: "In any town having a total population of eight thousand or more inhabitants and containing an incorporated village having a total population of not less than eight thousand and not more than fifteen thousand inhabitants, except in the County of Madison, any five or more persons holding lands adjoining or abutting on any highway, which extends within the limits of such town and without the limits of such incorporated village for a distance of at least two and one-half miles, may present to the Supreme Court at a Special Term thereof, to be held in the county containing such town, a petition for the appointment of three commissioners for the purpose of widening and improving such highway or a specified portion thereof not less than two miles and a half in length, such miles being wholly without the limits of such incorporated village." This attempt was more than the Court of Appeals could endure. The act applied and was intended to apply, only in the town of New Rochelle. Just how far this court will exercise control over the power of the legislature to make classifications for the purpose of general legislation remains to be seen. This New Rochelle act appears to have been a little more clumsy than some of the so-called general laws which have been sustained by the same court, but, as Judge O'Brien shows in his dissenting opinion, it was no more specific than the acts in the other New York cases above cited. 1 1890, § 1546.

six thousand (26,000), and not more than thirty thousand (30,000), the City Council may by resolution," etc.,

giving authority to issue bonds for police equipment. Printed on the margin in this official volume are the words "Akron and Canton," and these were the only cities to which the act applied. Villages, too, were put in different classes, but it would be a mistake here also to suppose that all legislation as to each class was uniform. The very next act after the one last mentioned is as follows:

"that any village of the State of Ohio which at the last federal census had, or which at any subsequent federal census may have, a population of not less than eight hundred and sixty (860), nor more than eight hundred and seventy (870), be and is authorized to issue its bonds," etc.;

and printed in the margin is the word "Malta," indicating the only village to which the act applied. Many other such instances might be cited.1 So for a long series of years Ohio had numerous similar statutes, which under decisions of the Supreme Court were general laws. It is hard to see what advantage this cumbrous system has over legislation for municipalities by name.

These are examples of the kind of legislation which has existed more or less in most states whose constitutions require general legislation as to municipalities. The Ohio statutes are perhaps extreme cases, but the principle on which they rest is supported by decisions in the courts of other states.

In 1874 the Pennsylvania legislature passed an act dividing cities into classes, which, among other things, provided that “ cities containing a population exceeding 300,000 shall constitute the first class." It was well known that the only city embraced in the first class was Philadelphia, yet the Supreme Court held that legislation which applied only to that class was general.2

The courts of some of the states, seeing that such classification and legislation are in effect legislating for particular cities, have sought to state some reason to justify them. Among other rules is one which may be called the "growing" rule. This is based on the idea that legislation for municipal corporations is a distribution of favors in which all are entitled to participate, and if all are

1 Other acts applied to any municipality which had at the last federal census the definite number of inhabitants specified in such acts respectively. These acts were held invalid when the "growing" rule hereafter mentioned was adopted.

Wheeler v. Philadelphia, 77 Pa. St. 338.

fairly treated, the law is to be regarded as general. Therefore a classification according to population is valid which treats alike all cities which now have or hereafter may have a certain population. The provision which makes such legislation apply to all cities which hereafter may have the prescribed population is supposed to relieve it from any objection. It matters not that the cities may not actually grow to have such a population; the mere possibility of such growth is sufficient.

"Legislation is intended not only to meet the wants of the present, but to provide for the future. It deals not with the past, but, in theory at least, anticipates the needs of a state healthy with a vigorous development. It is intended to be permanent. At no distant day Pittsburg will probably become a city of the first class; and Scranton, or others of the rapidly growing interior towns, will take the place of the city of Pittsburg as a city of the second class. In the meantime is the classification as to cities of the first class bad because Philadelphia is the only one of the class? We think not. Classification does not depend upon numbers." 1

That sounds plausible. But if the learned justice really thought, as no doubt he did, that "at no distant day Pittsburg will probably become a city of the first class," he reckoned without his host, for the legislature has taken good care that it shall not. When the population approached such numbers that it was at all likely to become a city of the first class, the legislature provided for a new classification by which cities of the first class should be "those containing a population of 600,000 or over "; 2 and later, in order that it might not grow into this class, made still another classification providing that the first class should consist of cities "containing a population of 1,000,000 or over." How long, at this rate, will it take Pittsburg to become a city of the first class?

When a court says that the classification of cities according to population is permissible, because other cities may grow into the higher classes, it is, in fact, speaking of a classification of cities which do not exist and may never exist, that is, of other cities which have the required population. It is a classification of mere possibilities. As to cities actually in existence, the classification is the same as if they were called by name, and it is kept such that, as to

1 Paxson, J., in Wheeler v. Philadelphia, 77 Pa. St. 338, 349. See also State v. Hawkins, 44 Oh. St. 98; State v. Anderson, 44 Oh. St. 247; Johnson v. Milwaukee, 88 Wis. 383; Alexander v. City of Duluth, 77 Minn. 445; Walker v. City of Cincinnati, 21 Oh. St. 14. 8 Act of June 25, 1895 (P. L. 275).

2 Act of May 8, 1889 (P. L. 133).

all others, it always remains a classification of mere possibilities. In other words, the reason given by the court is a transparent fiction. As well might a promise be held out to a dwarf that he shall receive some good thing when he grows to be a giant as to hold out to small cities a promise that a statute which applies only to cities having a million or more inhabitants, will confer certain powers on them when they grow to the same size.

Classification by population, moreover, is necessarily arbitrary.

A difference of one in the number of inhabitants cannot make different legislation necessary or appropriate. To say that a line must be drawn somewhere, is to beg the entire question.

After such decisions by the Supreme Court of Ohio for more than a score of years, and after municipalities had for this long time carried on their affairs under such legislation, levying taxes and assessments, creating liens and affecting titles, and borrowing money, that court suddenly, in the year 1902, made a series of decisions holding all such legislation special and invalid. An act passed April 14, 1900, which provided "that any city of the third grade of the first class may . construct. . . a bridge or bridges across any navigable river or rivers passing into or through such city," etc., and one which provided for "the appointment, regulation, and government of the police force in cities of the third grade of the first class," 2 were held unconstitutional. A similar decision was rendered for the same reason in respect of an act which was intended to relate only to the city of Cleveland. This was in June, 1902. The court, however, perceiving that a judg

1 Platt v. Craig, 66 Oh. St. 75.

2 Ohio ex rel. v. Jones, 66 Oh. St. 453. The court says, p. 483: "The act is said to be general and not special, because it provides for "the appointment, regulation, and government of a police force in cities of the third grade of the first class. That it affects no municipality in the state except Toledo is admitted. But the fact is said to be immaterial, because of the classification of cities by the General Assembly, and the doctrine formerly applied by the courts to such classification.

"That there has long been classification of the municipalities of the state is true. It is also true that while most of the acts conferring corporate powers upon separate municipalities by a classified description, instead of by name, have been passed without contest as to their validity, such classification was reluctantly held by this court to be permissible."

The court then stated that originally the laws making classification contemplated that on an increase of population municipalities should pass from one class to another, and that the classification should be permanent; but that under subsequent legislation municipalities did not by mere growth pass into another class; and it therefore concluded that under such classification the act was special.

8 State ex rel. Attorney General v. Beacom, 66 Oh. St. 491.