Opinion,
Me. Justice Steeeett :
One of the questions involved in this contention is whether, under the provisions of the act of May 24, 1887, entitled “An act dividing cities of this state into seven classes,” etc., the time has arrived for the contemplated change, in the city of Wilkes-Barre, from a single council to one consisting of two separate branches. For reasons given at length in the opinion of its learned president, the court below rightly held it had not, — “ that the provisions of said act relating to the election and installation of select and common councilmen cannot go into effect and become operative until the terms of all the members of the present council, in office at the date of the approval of the act, shall have fully expired, which will not be until the first Monday of April, 1890.”
Another and vastly more important question is, whether the act, under consideration, is constitutional. That subject was also briefly considered; but, while the court appears to have inclined to the opinion that the act is unconstitutional and void, it was not deemed necessary to decide the question, because, for the reason above stated, the bill was prematurely brought and could not therefore, in any event, be sustained.
We might for same reason affirm the decree, but the question is so important, in all its bearings, that it should be decided without unnecessary delay.
The broad ground on which the court was asked to declare the act unconstitutional is, that, under the specious guise of classification, it is local and special legislation pure and simple, and, without pretence of necessity, opens wide the door for further legislation of the same vicious and inhibited character. It is difficult if not impossible to escape from that position.
Classification is not expressly forbidden by the constitution. On the contrary, it is distinctly recognized, for certain purposes. For example, article IX., section 1, declares, “All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied [277]*277and collected under general laws.” Thus, hy necessary implication, authority is given to classify property for the purpose of taxation, but by express mandate of the last clause above quoted, all taxes must be levied and collected under general and not special or local laws.
During the session of the legislature immediately preceding the adoption of the present constitution, nearly one hundred and fifty local or special laws were enacted for the city of Philadelphia, more than one third that number for the city of Pittsburgh, and for other municipal divisions of the state, about the same proportion. This was by no means exceptional. The pernicious system of special legislation, practiced for many years before, had become so general and deep-rooted and the evils resulting therefrom so alarming, that the people of the commonwealth determined to apply the only remedy that promised any hope of relief. Doubtless, it was a proper appreciation of the magnitude of these evils, as much as anything else, that called into existence the convention that framed the present constitution and induced its adoption by an overwhelming vote. One of the manifest objects of that instrument was to eradicate that species of legislation, and substitute, in lieu of it, general laws whenever it was possible to do so. This is so clearly apparent that no unbiased mind can contemplate the 7th section of article III., and kindred provisions, without reaching thar conclusion. That section contains a schedule of nearly fifty prolific subjects of previous special and local legislation, and ordains that “ The general assembly shall not pass any local or special law ” relating to either of them. As an additional safeguard, in cases where special legislation is not expressly prohibited, the next section declares, “bio local or special bill shall be passed unless notice of the intention to apply therefor shall have been published,” etc.
Among the prohibited subjects specified in the 7th section, supra, are “ local or special laws authorizing the creation, extension or impairing of liens; ” “ regulating the affairs of counties, cities, townships, wards, boroughs or school districts; ” “ authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys; ” “ vacating roads, town plots, streets or alleys; ” “ incorporating cities, towns or villages, or changing their charters; ” “ creating offices, or prescribing the powers and [278]*278duties of officers in counties, cities, boroughs, townships, election or school districts; ” “ regulating the management of public schools, the building or repairing of school-houses, and the raising of money for such purposes,” etc.
In Wheeler v. Philadelphia, 77 Pa. 338, the question of classification first arose, under the act of May 23, 1874, entitled “An act dividing the cities of this state into three classes, regulating the passage of ordinances,” etc. It was there held that the act, so far as its provisions were then involved, does not contravene the clause of the constitution, prohibiting the passage of any local or special law “ regulating the affairs of counties, cities,” etc.; that the classification therein provided for, is founded on certain manifest peculiarities, distinguishing the cities of each class from the others, and to some extent, at least, demanding legislation for each, respectively, that would not only be unnecessary but detrimental to the other classes; and hence the act, so far as its provisions were involved in that contention, was constitutional.
It is not necessary to refer specially to the reasons given in support of these conclusions ; nor, is any attempt to further fortify the latter by suggesting other reasons, required. All that can be profitably said on the questions involved will be found in the elaborate and exhaustive opinion of the court, delivered by our brother Paxson. We are not asked to overrule that case, but simply to say that classification, as a mere pretext for special and local legislation, has since been carried to an extreme for which no warrant can be found either in the fundamental law or the decisions of this court.
The question was again presented in Kilgore v. Magee, 85 Pa. 401. In that case, Chief Justice Agnew, referring to Wheeler v. Philadelphia, supra, said: “We adhere to that decision, and indeed cannot see how the question of power could have been decided differently. To say that no general law can be passed to regulate a certain subject, because some of the classes contained in the regulation do not exist or exist only in a limited form, is to hold that no law can be passed to provide for future wants and necessities. The welfare of the state, and one of the chief purposes of legislation, would be struck down by such a decision.”
Subsequent legislation clearly indicates that the scope of the [279]*279decision in Wheeler v. Philadelphia was either misunderstood or ignored. It was never intended to license indiscriminate classification as a mere pretext for the enactment of laws essentially local or special. Repeated and pointed admonitions of that fact were given in subsequent cases involving the general subject. In 1878, an act was passed, the sole object of which was to provide specially for holding courts in the city of Titusville in the county of Crawford.
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Opinion,
Me. Justice Steeeett :
One of the questions involved in this contention is whether, under the provisions of the act of May 24, 1887, entitled “An act dividing cities of this state into seven classes,” etc., the time has arrived for the contemplated change, in the city of Wilkes-Barre, from a single council to one consisting of two separate branches. For reasons given at length in the opinion of its learned president, the court below rightly held it had not, — “ that the provisions of said act relating to the election and installation of select and common councilmen cannot go into effect and become operative until the terms of all the members of the present council, in office at the date of the approval of the act, shall have fully expired, which will not be until the first Monday of April, 1890.”
Another and vastly more important question is, whether the act, under consideration, is constitutional. That subject was also briefly considered; but, while the court appears to have inclined to the opinion that the act is unconstitutional and void, it was not deemed necessary to decide the question, because, for the reason above stated, the bill was prematurely brought and could not therefore, in any event, be sustained.
We might for same reason affirm the decree, but the question is so important, in all its bearings, that it should be decided without unnecessary delay.
The broad ground on which the court was asked to declare the act unconstitutional is, that, under the specious guise of classification, it is local and special legislation pure and simple, and, without pretence of necessity, opens wide the door for further legislation of the same vicious and inhibited character. It is difficult if not impossible to escape from that position.
Classification is not expressly forbidden by the constitution. On the contrary, it is distinctly recognized, for certain purposes. For example, article IX., section 1, declares, “All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied [277]*277and collected under general laws.” Thus, hy necessary implication, authority is given to classify property for the purpose of taxation, but by express mandate of the last clause above quoted, all taxes must be levied and collected under general and not special or local laws.
During the session of the legislature immediately preceding the adoption of the present constitution, nearly one hundred and fifty local or special laws were enacted for the city of Philadelphia, more than one third that number for the city of Pittsburgh, and for other municipal divisions of the state, about the same proportion. This was by no means exceptional. The pernicious system of special legislation, practiced for many years before, had become so general and deep-rooted and the evils resulting therefrom so alarming, that the people of the commonwealth determined to apply the only remedy that promised any hope of relief. Doubtless, it was a proper appreciation of the magnitude of these evils, as much as anything else, that called into existence the convention that framed the present constitution and induced its adoption by an overwhelming vote. One of the manifest objects of that instrument was to eradicate that species of legislation, and substitute, in lieu of it, general laws whenever it was possible to do so. This is so clearly apparent that no unbiased mind can contemplate the 7th section of article III., and kindred provisions, without reaching thar conclusion. That section contains a schedule of nearly fifty prolific subjects of previous special and local legislation, and ordains that “ The general assembly shall not pass any local or special law ” relating to either of them. As an additional safeguard, in cases where special legislation is not expressly prohibited, the next section declares, “bio local or special bill shall be passed unless notice of the intention to apply therefor shall have been published,” etc.
Among the prohibited subjects specified in the 7th section, supra, are “ local or special laws authorizing the creation, extension or impairing of liens; ” “ regulating the affairs of counties, cities, townships, wards, boroughs or school districts; ” “ authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys; ” “ vacating roads, town plots, streets or alleys; ” “ incorporating cities, towns or villages, or changing their charters; ” “ creating offices, or prescribing the powers and [278]*278duties of officers in counties, cities, boroughs, townships, election or school districts; ” “ regulating the management of public schools, the building or repairing of school-houses, and the raising of money for such purposes,” etc.
In Wheeler v. Philadelphia, 77 Pa. 338, the question of classification first arose, under the act of May 23, 1874, entitled “An act dividing the cities of this state into three classes, regulating the passage of ordinances,” etc. It was there held that the act, so far as its provisions were then involved, does not contravene the clause of the constitution, prohibiting the passage of any local or special law “ regulating the affairs of counties, cities,” etc.; that the classification therein provided for, is founded on certain manifest peculiarities, distinguishing the cities of each class from the others, and to some extent, at least, demanding legislation for each, respectively, that would not only be unnecessary but detrimental to the other classes; and hence the act, so far as its provisions were involved in that contention, was constitutional.
It is not necessary to refer specially to the reasons given in support of these conclusions ; nor, is any attempt to further fortify the latter by suggesting other reasons, required. All that can be profitably said on the questions involved will be found in the elaborate and exhaustive opinion of the court, delivered by our brother Paxson. We are not asked to overrule that case, but simply to say that classification, as a mere pretext for special and local legislation, has since been carried to an extreme for which no warrant can be found either in the fundamental law or the decisions of this court.
The question was again presented in Kilgore v. Magee, 85 Pa. 401. In that case, Chief Justice Agnew, referring to Wheeler v. Philadelphia, supra, said: “We adhere to that decision, and indeed cannot see how the question of power could have been decided differently. To say that no general law can be passed to regulate a certain subject, because some of the classes contained in the regulation do not exist or exist only in a limited form, is to hold that no law can be passed to provide for future wants and necessities. The welfare of the state, and one of the chief purposes of legislation, would be struck down by such a decision.”
Subsequent legislation clearly indicates that the scope of the [279]*279decision in Wheeler v. Philadelphia was either misunderstood or ignored. It was never intended to license indiscriminate classification as a mere pretext for the enactment of laws essentially local or special. Repeated and pointed admonitions of that fact were given in subsequent cases involving the general subject. In 1878, an act was passed, the sole object of which was to provide specially for holding courts in the city of Titusville in the county of Crawford. For the purpose of individuating that city and county and limiting the operation of the act to them, without mentioning either by name, the following ingenious but deceptive periphrasis was employed: “ In all counties of this commonwealth where there is a population of more than sixty thousand inhabitants; and in which there shall be any city incorporated, at the time of the passage of this act, with a population exceeding eight thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually traveled public road, it shall be the duty of the president judge or additional law judge, or either of them, to make an order providing for the holding of one week of court, at each regular term of court for said county, for the trial of civil or criminal cases in said city.” In Commonwealth v. Patton, 85 Pa. 258, this covert attempt at special legislation was fitly characterized as “ classification run mad.”
At the next session of the legislature another abortive attempt was made to accomplish the same object by a somewhat different, but at the same time equally elaborate circumlocution, differing from the former, not in kind but only in degree. In pronouncing that act also unconstitutional, this court said: “ It is no part of our business to discuss the wisdom of this legislation. However vicious in principle we might regard it, our plain duty is to enforce it, provided it is not in conflict with the fundamental law. It requires but a glance at the act to see that it is an attempt to evade the constitution. It is special legislation under the attempted disguise of a general law. Of all forms of special legislation this is the most vicious.....The act was doubtless regarded by its framers as classification of counties, but it is not so. Nor does any good reason occur to my mind why there should be such classification. If there be such reasons, amounting to a necessity [280]*280therefor, we shall probably hear of them in due season. In the meantime, classification which is grounded on no necessity and has for its sole object an evasion of the constitution will not be encouraged: ” Scowden’s App., 96 Pa. 422.
Again, in Morrison v. Bachert, 112 Pa. 322, an attempt to classify counties for the purpose of regulating fees of officers was declared unconstitutional. Referring to the section now under consideration, our brother Paxson, by whom the opinions in the two last cited cases were delivered, said: “ 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 not to be necessary for this court to make this judicial declaration, but it is proper to do so in view of the amount of legislation which is periodically placed upon the statute books in entire disregard of the fundamental law. Much of this legislation may remain unchallenged for years, only to be overturned when it reaches this court. In the meantime parties may have acted upon it, rights may have grown up, and the inconvenience and loss entailed thereby may not be inconsiderable. As we view it, this note of warning at this time is needed.”
Other cases might be cited in which similar notes of warning were sounded. Among these are Davis v. Clark, 106 Pa. 377; McCarthy v. Commonwealth, 110 Pa. 243; Scranton Scb. D.’s App., 113 Pa. 176; Scranton v. Silkman, 113 Pa. 191; Strine v. Foltz, 113 Pa. 349; Philadelphia v. Haddington Church, 115 Pa. 291; Evans v. Phillipi, 117 Pa. 226; Weinman v. Railway Co., 118 Pa. 192. In Scranton Sch. D.’s Appeal, supra, it was said by our brother Gkebn : “ All our recent decisions are to the effect that if local results either are or may be produced by a piece of legislation, it offends against ” the article prohibiting iocal or special legislation. In Philadelphia v. Haddington Church, supra, an act giving to a scire facias the effect of extending municipal liens in cities of the first class, was pronounced unconstitutional for similar reasons. In Weinman v. Railway Co., supra, it was held that an act providing for the incorporation and regulation of street railway companies, in cities of the second and third classes, was both special and local legislation and therefore unconstitutional, — special, because it relates to only a few of the general class known as [281]*281street railway companies, and local, in that its operations are confined to specified localities. In that case our brother Williams, referring to the subject of classification, said: “For purposes of local government the state is subdivided into counties, townships and other municipal and quasi municipal corporations. Each class of these subdivisions has purposes to subserve that are peculiar to it, and needs to be invested with the powers necessary to that end. Generally speaking, all the members of each class have the same local functions to perform. Classification, therefore, on that basis has been recognized, and a statute relating to all the townships, all the school districts, or all the members of any particular class of the municipal divisions of the state, has been held to be constitutional. It has been found desirable to divide cities into classes upon the basis of their population. The needs of a great city with half a million or more of people are somewhat different, in many respects, from the needs of a city with ten thousand. The organization of their local governments and the management of their municipal affairs will be quite unlike. Each of these classes requires legislation peculiar to itself, but such legislation must be applicable to all the members of the class to which it relates, and must be directed to the existence and regulation of municipal powers and local government.”
Some of the cases above cited have been quoted at considerable length for the purpose of showing that this court never intended to sanction classification as a pretext for special or local legislation. On the contrary, the underlying principle of all' the cases is that classification, with the view of legislating for either class separately, is essentially unconstitutional, unless a necessity therefor exists, — a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others. Laws enacted in pursuance of such classification and for such purposes, are, properly speaking, neither local nor special. They are general laws, because they apply alike to all that are similarly situated as to their peculiar necessities. All legislation is necessarily based on a classification of its subjects, and when such classification is fairly made, laws enacted in conformity thereto cannot be properly charac[282]*282terized as either local or special. A law prescribing the mode of incorporating all railroad companies is special, in the narrow sense' that it is confined in its operations to one kind of corporations only; and, by the same test, a law providing a single system for organization and government of boroughs in the state, would be a local law; but every one conversant with the meaning of those words, when used in that connection, would unhesitatingly pronounce such statutes general laws. But, as was said in Scowden’s Appeal, supra, “ classification which is grounded on no necessity and has for its sole object an evasion of the constitution ” is quite a different thing.
The purpose of the provision under consideration was not to limit legislation, but merely to prohibit the doing, by local or special laws, that which can be accomplished by general láws. It relates not to the substance, but to the method of legislation, and imperatively demands the enactment of general, instead of local or special laws, whenever the former are at all practicable.
The act of 1874, dividing the cities of the state into three classes, viz.: those containing over three hundred thousand population, those containing less than three hundred thousand and" exceeding one hundred thousand, and those containing less than one hundred thousand and exceeding ten thousand, was sustained, as to such of its provisions as have been involved in adjudicated cases,, because it was considered within the spirit if not the letter of the constitution. As to the number of classes created, that act appears to have covered the entire ground of classification. It provided for all existing as well as every conceivable prospective necessity. It is impossible to suggest any legislation, that has or may hereafter become necessary for any member of either class, that cannot, without detriment to other members of same class, be made applicable to all of them. If classification had stopped where the act of 1874 left it, it would have been well; but it did not. Without the slightest foundation in necessity, the number of classes was soon increased to five, and afterwards to seven: and, if the vicious principle, on which that was done, be recognized by the courts, the number may at any time be further increased until it equals the number of cities in the commonwealth. The only possible purpose of such classifica[283]*283tion is evasion of the constitutional limitation; and, as such, it ought to be unhesitatingly condemned.
The fact that the extended classification of 1876, and more especially that of 1887, is unnecessary, and therefore unwarranted, is manifest from an inspection of the acts themselves. With very few and quite unimportant exceptions, the charter powers of the fourth to seventh classes, inclusive, under the latter act, are precisely similar. There is nothing in either of the points of difference that can possibly be regarded as essential. Aside from the improper consideration that five classes furnish greater facilities for special legislation than one class would do, there is nothing to prevent the last four classes from being included in the third class established by the act of 1874, which comprises all cities of more than ten and less than one hundred thousand population. Their needs are all so similar that no charter power required for either of them would be unnecessary or detrimental to any of the others. The larger cities of such a class, that is, a class embracing all cities over ten and less than one hundred thousand population, would doubtless require a larger representation in each branch of councils, but that of course would be easily regulated by the adoption of a suitable ward and population basis of representation.
Reference might also be made to several special provisions of the act of 1887, such as those relating to public schools, taxation and municipal claims, creation and continuance of tax liens, and sales of real estate therefor, etc., but it is unnecessary. In greater or less degree, they all offend against provisions prohibiting special legislation. In addition to that, the subject of public schools is not even hinted at in the title of the act. Moreover, school districts, as quasi corporations belonging to the public school system, have no necessary connection with municipal government. It is expressly required, as we have seen, that “ all taxes shall be levied and collected under general laws ; ” and, it is impossible to suggest any valid reason why they should not be thus levied and collected. When the present constitution was adopted, local and special laws relating to public schools, assessment and collection of taxes etc., were in force in some of the cities and remained unaffected by that instrument; but that fact will not justify the [284]*284substitution of other local or special laws in their stead. When new legislation is resorted to, it must conform to the requirements of the constitution.
It has been suggested that such provisions of the classification acts, as are not in harmony with the constitution, may be eliminated without destroying other provisions thereof; but, that is no answer to the crowning vice of unnecessary and excessive classification which stands out in bold relief on the face of both acts, and of which nearly all their provisions are predicated. Those acts doubtless contain many wise and wholesome provisions, but they are so interwoven with and dependent on others that are unconstitutional and void, that neither of the acts of 1876 or 1887 can be sustained, even in part.
It has also been suggested that the question of necessity for classification and the extent thereof, as well as of what are local or special laws, is a legislative and not a judicial question. The answer to that is obvious. The people, in their wisdom, have seen fit not only to prescribe the form of enacting laws, but also as to certain subjects, the method of legislation, by ordaining that no local or special law relating to those subjects shall be passed. Whether, in any given case, the legislature has transcended its power and passed a law in conflict with that limitation is essentially a question of law and must necessarily be decided by the courts. To warrant the conclusion that the people, in ordaining such limitations, intended to invest their law-makers with judicial power and thus make them final arbiters of the validity of their own acts, would require the clearest and most emphatic language to that effect. No such intention is expressed in the constitution, and none can be inferred from any of its provisions. That those limitations were designed to establish a fixed and permanent rule cannot be doubted; but, if the ultimate application of that rule were to rest solely in the judgment of the body on which it was intended to operate, nothing could be more flexible. As was well said in Pell v. Newark, 40 N. J. L. 71, 80: “ No standard could be established by which the law-maker could be guided, and what’ might be rejected at one session as improper might become a law at. the next, and thus the rule would fluctuate with the ever changing membership of that body. The valid[285]*285ity of an act would depend not so much upon the fixed rule of the constitution as upon the liberality or strictness with which successive legislatures, under the pressure of local influences, might determine to interpret the restraint upon their own action. . . . : . That the legislature would act in good faith, must be presumed. Purity of motive and a desire to keep within the prescribed limitations must be conceded to its members at all times; but that the people should have deliberately framed and imbedded in their organic law a provision to prohibit special legislation where general laws might be passed, and, at the same time, should have intended to put legislative action beyond review, where there was a clear infraction of the prohibition, is a proposition to which it seems impossible to assent.” No such proposition can be entertained by the courts without abandoning one of the most important branches of jurisdiction committed to them by the fundamental law, viz.: the power to ultimately determine whether or not a given law is local or special and has been passed in disregard of the constitutional limitation that has been placed upon the power of the legislature.
It follows that the decree- of the court below is correct not only on the ground that, as to the city of Wilkes-Barre, the act of 1887 is not yet operative, but also on the broader ground that the act is unconstitutional and void.
Decree affirmed and appeal dismissed at the costs of appellants.