Littleton v. Mayor of Hagerstown

132 A. 773, 150 Md. 163, 1926 Md. LEXIS 18

• Court: Court of Appeals of Maryland
• Decided: March 9, 1926
• Status: Published

Opinions

Adkins, J.,

delivered the opinion, of the Court.

The bill of complaint in this, case was filed in December, 1922, by appellants as taxpayers of Hagerstown, against the Mayor and Council of Hagerstown and the board of street commissioners. The bill alleges that the said city, under the management and control of said board, is now, and has been for a number of years last past, manufacturing electric current for the lighting of the streets and avenues, of said city, and for the commercial purpose of selling said current to the residents of said city for lighting and power purposes; that under and by virtue of an alleged authority conferred by chapter 40 of the Acts of 1920, the Mayor and Council of Hagerstown has directed and authorized the said board of street commissioners to erect a new electric light plant in Hagerstown, designed and intended for the manufacture of electricity for other than municipal purposes, to wit, for the sale to the residents and citizens, of Hagerstown for lighting and power purposes, without having first obtained from the Public Service Commission of Maryland a, certificate of authority therefor, and is about to issue and offer for sale bonds to the amount of $300,000 for the purpose of the erection of said plant, without having first obtained a certificate of authority therefor from said commission; that the said board is about to make contracts for the erection of said new plant for the purposes aforesaid; that neither said city nor said board was given authority to build, maintain, or operate said new plant for manufacturing electric current for lighting other than for municipal purposes, without first having obtained a, certificate of authority from said commission, by said Act of 1920, nor by any other Act of the Gen eral Assembly, but under chapter 180' of the Acts of 1910, and amendments subsequent thereto, they are required to obtain such certificate in order to build, maintain or operate an electric light plant, for supplying light for other than municipal purposes; that neither the said Mayor and Council of Hagerstown, nor the said board, has applied for or intends to apply for such certificate; that the building of such plant, or the making of such contracts, or the issuing of said bonds, without such certificate, will increase the burden of complainants and all other taxpayers of Hagerstown, and will be an illegal and unwarranted exercise of power. The prayer of the bill is for injunction and for further relief.

The defendants’ demurred and the demurrer was overruled. On appeal the order overruling the demurrer was affirmed at the April term, 1923. Mayor and Council of Hagerstown v. Littleton, 143 Md. 591. But it was held that the injunction should be dissolved on the obtaining by the city of a certificate of authority from the Public Service Commission.

The only provision in the original act (Acts 1910, chapter 180), creating the Public Service Commission, applicable to municipally owned gas and electrical works, was contained in section 441 of article 23 of the Code of 1912, as follows:

“No municipality, except the Mayor and City Council of Baltimore, shall build, maintain and operate for other than municipal purposes, any works or systems for the manufacture and supplying of gas or electricity for lighting purposes without a certificate of authority granted by the commission. If the certificate of authority is refused, no further proceedings shall be taken before the commission, but a new application may be made therefor after one year from the date of refusal.”

But in 1914 a new section, 413A, was added to article 23 of the Code, which provided that:

“Every municipal corporation of the state engaged in the business of manufacturing and supplying, or of supplying gas and electricity for other than municipal purposes shall be included in the terms ‘Gas Corpora tion’ and 'Electrical Corporation’ as defined in the next preceding section of this sub-title, and shall be subject, as other gas and electrical corporations are, to the provisions of this sub-title.”

That amendment, of course, made applicable to municipal corporations, furnishing gas and electricity for other than municipal purposes, sections 445 and 448 of article 23 of said Code, as well as section 447. Section 445 (section 388, article 13, Code 1924) gave the commission supervisory and regulatory powers.

Section 448 (section 392 of article 23, Code 1924) provided for the issue of bonds by an electrical corporation "when necessary for the acquisition of propei’ty, the construction, completion, extension or improvement of its plant or distribution system,” on securing1 from the commission an order authorizing such issue.

The decision in Hagerstown v. Littleton, supra, affirming the order of the lower court granting an injunction, was based on these provisions.

Pursuant to that decision application was made to the commission for authority to issue the bonds and was refused for reasons set out in a very able opinion. This was in December, 1923. Shortly thereafter the Legislature of 1924 passed an act, chapter 48 of the Acts of that year, repealing and re-enacting with amendments said sections 413A and 447, the only changes being1 that to section 413A were added these words:

“except that the provisions of sections 445 and 448 of article 23 of the Annotated Code of Maryland (Code 1912) shall not apply to such municipalities as owned, operated and maintained on and prior to the date of the creation of the Public Service Commission, and presently own, operate and maintain a gas or an electrical plant devoted in whole or in part to the supplying of the inhabitants of such municipalities with gas or electricity, for lighting or power purposes, nor shall said sections 445 and 448 apply to the Mayor and Council of Hagerstown, nor to such municipality or munici palities having a -population in excess of 20,000, and an assessable basis in excess of $15,000,000, when the majority of voters of such municipality or municipalities shall vote in favor of municipal ownership of lighting or power plant.”

And in section 447 were incorporated just before the last sentence: “Provided, however, that this section shall not apply to such municipalities as owned, operated 'and maintained,” etc., as in the exception quoted above. The amendment to this section also permitted, in event of refusal of an application, a new application to 'be made in six months instead of twelve. It was also provided “that in the event any part of provision of this act be held invalid, the same shall not affect in any way the validity of the remaining parts and provisions.”

In the same year the Legislature passed another a'ct, chapter 380, which recites chapter 40 of the Acts of 1920, and authorizes the issue of $300,000 of bonds in lieu of those authorized by the earlier act, the proceeds of which to be used for constructing, erecting and maintaining a city electric light plant for Hagerstown, using such portions of the old plant as may be advantageous and to remodel the entire distribution system of the city light plant.

In September, 1924, after the passage of the said acts of that year, the said board asked and were given leave by the court to file an answer to the bill of complaint.

In its answer the board recites said acts of 1920 and 1924; denies that the building of a new plant for the purposes, contemplated and as authorized or the entering into any contracts therefor, or the issuing of any bonds to pay therefor without a certificate or authority being first had and obtained from ,said commission, will or would be an illegal and unwarranted exercise of power, increasing the burden of the complainants or any other taxpayer of said municipality, “said certificate of authority not being required by reason of the several acts of 'assembly hereinbefore referred to”; and averring that said municipality has for more than twenty years continuously owned, operated and maintained, and presently owns, operates and maintains an electric plant devoted to the purpose of manufacturing electric current for the purpose of lighting the streets and public places of said city, and tbe sale thereof to residents of Hagerstown for light and power purposes, and that pursuant to chapter 40 of the Acts of 1920, at a duly held municipal election, at the time of which said election this said city had a population in excess of 20,000, and an assessable basis in excess of $15,000,000, a majority of votes cast was in favor of municipal ownership of lighting and power plant. There was also filed by the defendants a motion to dissolve the injunction.

On January 25th, 3925, another bill of complaint was filed by certain taxpayers of Hagerstown against tbe M'ayor and Council of Hagerstown, Daniel E. Downer, tax collector, and the Board of Street Commissioners, in Cause Ho. 9860, which by order of court was consolidated with the original case.

In the new bill all tbe proceedings in the former case are recited and it avers that application, to the Public Servico Commission has been made by the Mayor and Council of Hagerstown for authority to erect and maintain its proposed new plant and to issue bonds, and refusal by tbe commission, and that no court proceedings have been instituted to have the order of the commission declared unlawful or unreasonable; tliat the defendants are about to construct said plant without obtaining authority from the commission; that the Mayor and Council of Hagerstown intends to pass an ordinance providing for the issuance of bonds, and to issue same, and the board of street commissioners intends to apply the proceeds thereof towards the erection of said plant, without obtaining authority, as required by law; that said new plant will not be in any sense an extension of tbe plant constructed pursuant to chapter 75 of tbe Laws of 3.900, but on tbe contrary will be an entirely distinct and separate plant; that the Mayor and Council of Hagerstown caused chapter 48 of the Acts of 3924 to be passed for tbe declared purpose of enabling it to issue said bonds and construct said plant -without obtaining said authority; that Hagerstown and Berlin are the only municipalities which fall within the first exception in section 447, but that, between the date of the creation of the Public Service Commission (April 5th, 1910) and the enactment of section 413A, at least two municipalities in the state, namely Centreville and Thurmont, acquired, operated and maintained municipal electric plants “devoted in whole or in part to the supplying of the inhabitants” of such municipalities with electricity for lighting purposes, and that said plants have at all times since their acquisition as aforesaid been owned and operated by Centreville and Thurmont and devoted to the purposes aforesaid; that a majority of voters of Hagerstown have not voted in favor of municipal ownership of lighting and power plant as provided in the third exception in section 413A or section 447; that all of the exceptions in section 413A and section 447 are special laws for cases for which provision has been made by existing general law, namely, the provisions of the Public Service Commission Law to which they purport to apply, and are unconstitutional and void, being in conflict with that part of section 33 of article 3 of the Constitution of Maryland which provides that “the General Assembly shall pass no special law for any case for which provision has been made by an existing general law”; and that the, third exception is void also for the additional reason that it involves an unconstitutional delegation of legislative powers; that said exceptions are also in conflict with that part of section 1 of the Fourteenth Amendment of the Constitution of the United States, which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws; that section 439 of article 23 of the Code (1912), which applied to all corporations subject to the provision of the Public Service Commission Law, was not made inapplicable to the Mayor and Council of Hagerstown by chapter 48 of the Laws of 1924, and that section prohibits the issuing of bonds without authority from said commission; that said new plant is about to be constructed on land which was conveyed to the Mayor and Council of Hagerstown in consideration of $4,300, which sum was paid in full by the sewerage commission of Hagerstown out of funds in its hands exclusively applicable to the construction of a service system in. Hagerstown, and required by law to be so used; that no ordinance authorizing said purchase was ever passed by the Mayor and Council of Hagerstown, or submitted to the qualified voters of said city, as required by section 152 of article 22 of the Code of Public Local Laws of Maryland, and that said land has, therefore, not been lawfully acquired by said city.

The prayer of the hill is for an injunction to restrain the election of said plant, the expenditure of public funds, or the incurring indebtedness, in connection with the proposed issue and sale of bonds; the issuing of said bonds and the levying of taxes to pay the interest thereon; and that chapter 48 of the Acts of 1924 be declared unconstitutional and void; and for further relief. There were filed with this hill of complaint, as exhibits, the deed of the land referred to an'd the opinion and order of the commission. An order nisi was passed on the bill.

The ansAver of the defendants avers: That the city has been engaged in furnishing electricity for its own purposes and to its citizens for more than twenty-four years, and that the operation of its plant has inured to the benefit of its citizens and taxpayers by affording them lower rates for electric current than that of other municipalities similarly situated, and in the lighting of its streets and public places without cost or charge; that the determining factor in the decision of the commission, viz: the elimination of all competition and the creation of a monopoly, “is at variance with article 41 of the Constitution of Maryland, which provides That monopolies are odious, contrary to the spirit of free government, and the principles of commerce, and ought not to he suffered’ ”; admits that no further application has been made to the commission since said order and no court proceedings have been taken to have said order declared unlawful or unreasonable, but avers that said commission is without authority in the premises, the necessity for application to the commission having’ become unnecessary by reason of chapter 48 of the Acts of 1924; avers that the proceeds of said bonds are to be used in the construction of said new plant, as well as the repair of the present distribution system; that heretofore and prior to the time of the issuing of the injunction under the first bill of complaint the board of street commissioners expended over $30,-000 from the lighting fund in connection with the grading, construction of foundations, placing of railroad switches and other work done on and to the approaches to a certain lot in said city, which was acquired for the purpose of the construction of a municipal light plant, and that they intend, if the injunction is dissolved, to expend further sums from said fund, which is now more than $100,000, in furtherance of the construction of said municipal plant and the equipment thereof, as well as for the repair and maintenance of the distribution system now owned by said city, the construction of said plant and the equipment thereof having become necessary and imperative by reason of the increase of business and needs of the citizens and the lighting of the streets and public places of said city, the present plant being inadequate for such purposes, and being located where further development thereof cannot be economically made on account of an inadequate supply of water, the proposed plant to be interconnected with the existing plant to be operated in connection therewith, and the said two plants to constitute and be a part of a municipally owned system; admits that it is the purpose of defendants to construct the proposed plant on the lot mentioned in the bill of complaint; avers that in the acquisition of said lot the City of Hagerstown, acting through the sewerage commission, the board of street commissioners and the water commissioners, acquired certain other, lands and rights from the grantor, amongst which were the rights of said grantor in and to the waters of the Antietam Creek, for which said right the sum of $25,000 was paid in equal portions by each of said hoards, the understanding being at the time of said acquisition tbat the hoard of street commissioners should have the right to occupy and build the proposed electric light plant upon the lot acquired by said deed; denies that an ordinance authorizing said purchase is required, the said hoard of street commissioners being vested with ample power and authority to acquire said land and rights for said purposes; denies that said land was unlawfully acquired by said city.

An agreed statement of facts appears in the record, by which it appears that the city has operated its plant for more than twenty years, furnishing current for municipal and private uses; that from the erection of the plant in 1900 no tax was. levied for the lighting of the stre'ets and public places of said city from 3913 to 1937, inclusive; that in the year 1918 and every year thereafter, including 1922, a levy of ten cents was made; that in addition thereto there wa's levied for1 electric light plant, in 1919 five cents, in 3920 five cents, in 1921 and 1922 each ten cents; a comparative statement of cost of lighting city and receipts from each levy from 1902 to 1924, inclusive, showing excess of such costs over receipts from tax levies of $27,487.42; that during* said years $37,000 of bonds and interest have been paid from the earnings of said plant, and there are now $39,000 unpaid, and said plant now has. to its credit, in the lighting fund, $117,000; that the present city officials will testify that, so far as they now know or intend, any expenditure for the construction of the proposed plant will not be from the1 general public funds of said city, but only from the funds derived from the sale of bonds a's authorized by chapter 40 of Acts of 1920 and chapter 380 of Acts of 1924, and from the lighting fund, now in excess of $117,000; that prior to, the filing of the first hill of complaint the hoard of street . commissioners had expended, on the site acquired for the purpose of the construction of the proposed electric light plant, an amount in excess of $30,000, in connection with ' the grading, construction of foundations and railroad sidings and other work done on and to the approaches to said site; that the capacity of the present plant is in the judgment of the defendants, and they have been so advised by competent engineers, now inadequate to supply the electric current necessary to meet the demands of its private customers and at the same time to light the streets and public places of Hagerstown, and the location of the present plant is such that on account of an inadequate supply of water it cannot be economically enlarged; that the .proposed new plant when erected is to be connected with the present plant by transmission wires, and the present plant will be used as an auxiliary to the plant until the same is in full operation and will .warrant the discontinuance of the present plant and its salvaging; that in the year 1900 the city, which then had a population of 13,000, and an assessable basis of less than $15,000,000, voted for municipal ownership of lighting plant, the vote being 1,882 for and 662 against; that in 1920 the city voted for issuing of bonds to construct a. new city electric light plant, the vote being 1,636 for and 1,259 against, the population then being over 20,000 and the assessable basis over $15,000,000; the facts as alleged in the answer about the proposed site; that the duties of the sewerage commission are practically at an end and upon completion of their work all property of any kind acquired by them is to be turned over to the Mayor and Council, but the funds now in the hands of said commission are inadequate to complete said sewerage system or to pay obligations already incurred for sewerage purposes; that Hagerstown with a population of 28,000 and Berlin with less than 1,400 were the only municipalities falling within the first exception, and that between April 5th, 1910 (when the Public Service Act was passed), and the enactment of section 413A, Oentreville, with about 1,800 people, and Thurmont, with about 1,300, acquired and operated municipal electric light plants.

Schedules of rates for electric current of several neighboring cities are also filed.

Some of the facts found by the Public Service Commission are: 'Capacity of present city plant, 2,000 Kb W. capable, according to testimony of defendants’ engineers, of being increased by the use of funds now on hand to> 3,500 Kb W.; that this will supply all purely municipal needs for1 a number of years, as well as the present demand and the looked for increased demand of private customers for several years to come; admission by city that its “prime object” is to take care of future business rather than satisfactorily supply present demands; present bond issue contemplates 'a; plant of but 3,000 Kb W. working capacity, but the city has in mind additional bond issues in the next few years and an increase of capacity to 8,000 K. W. with the ultimate aim of a 15,000 Kb W. plant; that the Potomac Public Service Company and its subsidiary Maryland corporations have in recent years constructed a plant of 9,000 Kb W. capacity at Security, near Hagerstown, have more recently installed a first unit of 15,000 Kb W., with provisions for additional units, at Williamsport, have recently acquired the Cumberland plant of 9,000 Kb W.; have hydro-electric plants on the Potomac, and generating units on the Shenandoah 'and in West Virginia; that these plants of an approximately 50,-000 Kb W. capacity are now in process of interconnection; that the Hagerstown plant at present furnishes light and power for nmnicipal purposes, and also to customers in ancS around the said city in competition with the Potomac Public Service Company; that the latter company .appears from the investigation of the commissioner’s engineers to be selling considerably more electricity in Hagerstown than the municipal plant.

This appeal is from a decree dissolving the injunction in the earlier case and dismissing the bills of complaint in both cases.

In the preceding statement the questions involved have been fully set out. The most'important is that of the constitu tionality of chapter 48 of the Acts of 1924. The validity of that act is challenged as violating section 33 of article 3 of the Constitution, which provides: “And the Genera] Assembly shall pass no special law for any case for which provision has been made by an existing general law.”

That each of the exemptions made by said act is obnoxious to said constitutional inhibition is apparent, unless it operates upon all within a class, the members of which are all so situated as to require or at least justify legislation different from that applicable to others, and the basis of classification bears a reasonable relation to the subject-matter of the act.

“The true principle of classification requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. It must be formulated upon a necessity or propriety for legislation differing from the legislation appropriate to other classes, and this necessity or propriety must spring from some manifest peculiarities not only distinguishing one class from another, but demanding or a,t least justifying legislation for each class separately that would be useless or detrimental to the others. A statutory classification not grounded on any reasonable or practical necessity, and which effectuates an evasion of the constitution, will not be upheld.” 1 Dillon, Municipal Corporations (5th Ed.), sec. 148.

It is necessary therefore to test each of the three classifications made by said act by the rule above quoted from Dillon and recognized practically everywhere.

It is difficult to deal with the classifications separately, because it seems obvious that the single purpose in formulating each of them was to exempt Hagerstown from the operation of the Public Service ‘Commission Law. Else why should there be a separate classification for one city in such an act? And why should the basis of the other two classi fi cations be so narrow as to admit, at all, only one small town in addition to Hagerstown in the one case; and in the other, to provide, at the present time, for Hagerstown alone (assuming that- city has met its requirements) ? Indeed, the learned chancellor, in his opinion, ignores the other two and discusses only the classification which exempts Hagerstown by name. And that is the one which is considered at length by counsel for appellee.

It is the object to be accomplished and not the form of the act which . determines the validity of a classification. Thomas v. City of St. Cloud (Minn.), 90 Minn. 477 ; State v. Logan, 268 Mo. 169; 6 R. C. L., page 419 ; Baltimore v. United Rwys. Co., 126 Md. 39.

We will consider first, therefore, the exemption which expressly applies to Hagerstown alone.

Appellees rely upon Baltimore v. United Rwys. Co., 126 Md. 39. In that case it was said: “There is a wide difference between a special act, within the meaning of the 'Constitution, and an act for special purposes,” and “in considering the constitutionality of an act it is proper that we keep in mind the conditions existing at the time of its passage.”

And counsel for appellees in their brief set out the following as the unusual conditions surrounding Hagerstown and which, they argue, bring it within the ruling of the case relied on, viz:

(a) Duty imposed by Legislature by chapter 75 of the Acts of 1900 to light the streets and public places of the city only from a municipally owned plant.

(b) Alleged mandatory requirement of that act as to furnishing to the citizens of electric light service.

(c) Inadequacy of present plant to supply existing demands, and inability from that cause to obey the alleged legislative mandate.

(d) Lack of water supply to justify development of plant at present location.

(e) Absence of above legislative requirement as to any other city.

(f) Adaptability of proposed site, by reason of abnndantwater supply, and its location adjacent to the tracks of the Baltimore and Ohio- Railroad O'ompany.

(g) Expenditure of $30,000 by the city on said lot mailing preparation for the proposed new plant, before any objection was made.

(h) Necessity of legislation by reason of the refusal of the-Public Service Commission to grant authority.

(i) Demonstrated value of existing, plant to- the city and the citizens.

(j) Enjoyment by citizens of lower rates during the operation of said plant than those prevailing in towns and cities-in the vicinity.

(k) Saving" to the city in lighting streets and public places-of $-27,000 during the operation of the plant, this being the-difference between the actual cost of production of the current, and the amount of taxes levied for the plant.

The question is: Do any of these conditions, or all of them together, put Hagerstown in a position by reason of which it can reasonably be held that, taking into consideration the purposes of the general law, legislation applicable-to Hagerstown alone is necessary or justifiable ?

As to (a) there is nothing in the record to indicate that any enlargement of the present plant is necessary to enable-it to produce an abundance of current for purely municipal, purposes.

(b), (c), (d) and (e). Even if it could be held that the Legislature had the power to compel a municipality to furnish light to its citizens, an entirely non-governmental function (and such power seems to be inconsistent with the-principles announced in Revell v. Annapolis, 81 Md. 1 ; County Commrs. of Talbot County v. County Commrs. of Queen Anne County, 50 Md., at page 258; Balto. & Eastern Shore R. Co. v. Spring, 80 Md. 510 ; Gulowski v. Baltimore, 127 Md. 502 ; Wallace v. Baltimore, 123 Md. 638), it certainly could not compel it to do so heyond the-capacity authorized. Re Ohio Fuel Supply Co., Pub. Util. Rep. 1921A, 628 ; Brown v. Gerald, 100 Me. 351 ; Wyman on Public Service Corporations, sec. 271. The contention that the city is entitled to special legislation in order to enable it to fulfill a duty imposed upon it by chapter 75 of the Acts of 1900 seems to be disposed of by what was said in Hagerstown v. Hagerstown Rwy., 123 Md., at page 197. It was there held that “there is nothing in that act to indicate any intention of the Legislature to give the city the exclusive right to furnish electric light and power to private consumers in the city * * See also Hagerstown v. Littleton, 143 Md., at page 143.

(a), (b), (c), (d) and (e) being disposed of, there does not seem to be' anything in the other alleged conditions which have such relation to the subject-matter of the legislation, or, indeed, so to distinguish Hagerstown from other cities, as to justify a separate classification.

That it has an excellent site for the proposed plant; or that the commission refused to grant authority; or that the present plant has demonstrated it value to the municipality and its citizens by giving them low rates; or’ even that the •city had spent $30,000 on the site of the proposed new; plant before objection was made (there being no element of estoppel in this case), or all these facts together, do not seem to furnish a valid basis for distinction or classification.

It is not that the classification now being considered includes only one city. That is permissible if (a) it stands alone in a matter which furnishes a reasonable basis for classification, and (b) the ba’sis has a reasonable relation to the .subject-matter of the act. There could be no doubt about the validity of such a classification in the instance considered by the Court in Baltimore v. United Rwys. Co., supra. But the trouble with the present case is that Hagerstown was not so situated.

The only reason that can even plausibly be urged by Hagerstown, that could not be easily acquired for itself and used as an argument for exemption by any other municipality, is that Hagerstown for a long time, and successfully, has been, running a municipal plant. But there is nothing to prevent its continuing to do so without any special legislation. According to the city’s own showing it is not hampered in any way in meeting economically all the purely municipal needs and a large private business besides. The only complaint it makes is that it is not permitted to spread out and do a much larger private business in conjunction with another plant already in existence, and abundantly equipped to furnish the additional service required, without anything to show that the other plant is not giving equally good and .economical service to those whom the city cannot serve by reason of its limited capacity. It is just such wasteful duplication which it is one of the principal functions of the Public Service Commission to prevent. However, if the commission acted arbitrarily and without justification, the city’s remedy was by resort to the courts and not to the Legislature.

The first and third classification will now be considered.

The first includes “such municipalities as owned, operated and maintained at and prior to the date of the creation of the Public Service Commission, and presently own, operate and maintain a gas or electric plant devoted in whole or in part to the supplying of the inhabitants of such municipalities with gas or electricity, for lighting or power purposes.”

It is agreed that only Hagerstown and Berlin are in this class. The classification in absolutely arbitrary and without a' reasonable basis. The only reason for it that might occur to any one (although that would not be a valid one) is that plants established before the commission was created ought not to be subject to its control. But the commission had no control of bond issues by a municipality owning1 an electric plant until section 413A was passed in 1914 (section 347 of article 23 of Code of 1924). Between the creation of the commission in 1910 and the enactment of section 413A in 1914, Oentreville and Thurmont erected electric light plants of the character mentioned in this classification; so that while they did not exist at the time of the creation of the commission, they did exist before the commission was given any control over the issuing of bonds by municipalities for the erection of such plants. But they were excluded from the class. Either they were improperly excluded or else the only even plausible basis for the classification did not enter into the consideration of the Legislature. Besides, the general law in force at the time of the enactment of chapter 48 of the Acts of 1924 included section 413A, which provided in part as follows: “Every municipal corporation of the state engaged in the business of manufacturing and supplying", or of supplying, gas and electricity for other1 than municipal purposes shall be included in the terms £Gas Corporation’ and ‘Electrical Corporation’ as defined in the next preceding section of this sub-title, and shall be subject, as other gas and electrical corporations are, to the provisions of this subtitle.” Any attempted classification, therefore, on the basis cf going concerns at a given date, including; only municipalities operating “a gas or electric plant, etc.,” at that date and excluding other corporations in similar1 circumstances, is an incomplete classification.

In State v. Wood, 49 N. J. L. 85 (affirmed in 50 N. J. L. 175), it is said: “A law is to be regarded as general when its provisions apply to all objects of legislation distinguished alike by qualities and attributes which necessitate the legislation, or to which the enactment has manifest relation. Such law must embrace all, and exclude none, whose condition and wants render such legislation equally necessary or appropriate to them as a class.” See also Thomas v. City of St. Cloud, 90 Minn. 477 ; State v. Logan, 268 Mo. 169 ; Philadelphia County v. Sheehan, 263 Pa. 449 ; Township of Lodi v. State, 51 N. J. L. 402, 6 L. R. A. 56.

That municipalities supplying public utilities are to be considered just as are other public service corporations similarly engaged, in relation to the Public Service Commission Law, is established by Crisfield v. Chesapeake and Potomac Telephone Co., 131 Md. 444 ; Westminster v. Consolidated Public Utilities Co., 132 Md. 374 ; Hagerstown v. Littleton, 143 Md. 591. See also Wyman on Public Service Corpor ations, vol. 1, sec. 218.

The third classification is as follows: “Such municipality or municipalities having a population in excess of 20,000 and an assessable basis in excess of $15,000,000’ when the majority of voter’s of such municipality or municipalities, at a duly held election, shall vote in favor of municipal ownership of lighting or power plant.”

It -looks like an arbitrary classification to say that cities with over 20,000 population and an assessable basis of $15,-000,000 may issue bonds without authority of the commission, and those with half that population and assessable basis may not. A small issue of bonds in the smaller city would seem to be as safe as a relatively larger bond issue would be in the larger city; and the regulation against duplication of service would seem to be as necessary in the one case as in the other.

But, however that may be, there certainly can be no reason for a' distinction (which has any relation to exemption from commission regulation) between cities voting for municipal ownership and those not so voting, all being duly authorized to erect and maintain electric light plants. Apart from any other reason, such unreasonable discrimination invalidates the classification.

“A classification of cities, towns and villages by population cannot be arbitrarily adopted as a ground or reason for investing some of them with powers denied or not granted to others, if, though there be a difference in population, there is no difference of situation or circumstances of the municipalities placed in the different classes, and the difference in population has no reasonable relation to the purposes and objects to be attained by the statute * * *. When population is but one of two or more incidents which are used in combination in the construction of a class, the classification is usually held to be invalid.” 19 R. C. L., pages 743 and 744. See also People v. Fox, 247 Ill. 402 ; Lowry v. Scott, 110 Minn. 98 ; State v. Simon, 53 N. J. L. 550 ; Wilson v. Ram sey, 86 N. J. L. 263 ; Ashworth v. Pittsburgh Railways Co., 231 Pa. 539 ; Dillon, Municipal Corporations (5th Ed.), sec. 151.

After the most careful examination and consideration we can find no reasonable basis, for any of the classifications. It seems to be simply a case where, not having obtained what it desired at the hands of the commission, the city appealed to the Legislature to exempt it from the control which all other public, service corporations, including all municipalities (except Baltimore City) operating such plants, are by the express provisions of the general law obliged to submit to. If the city conceived that the commission acted arbitrarily, or exceeded its authority, it could have sought relief in the courts.

We do not find any merit in the contention of appellees, that the repeal and re-enactment of a general law with an amendment prevents the amendment being a special law in violation of the constitutional provision, where, as here, the momentary repeal of the general law is manifestly for the purpose of immediately passing the amendment, and where the amendment would not have been constitutional if passed as a separate proposition without the repeal. To hold otherwise vrould be to. permit in any case a virtual disregard of the constitutional inhibition by indirection.

If the Mayor and ‘Council of Hagerstown had been excepted in the original act, as was the Mayor and City Council of Baltimore, a different question would be presented. At that time there was in force no general law on the subject.

The conclusion we have reached on the questions already considered makes it unnecessary to decide several other questions suggested by appellants.

Decree reversed and- case remanded that a decree may be passed in accordance with the vieius expressed in the aforegoing opinion, with costs to appellants.

Offutt and Digges, JJ., dissent.