Constitutional 
 Limitations 
 
 UPON 
 
 SPECIAL 
 
 Legislation 
 
 Concerning 
 Municipalities 
 
 William Backus Guitteau 
 
Digitized by the Internet Ar_ 
 in 2007 with funding from 
 Microsoft Corporation 
 
 http://www.archive.org/details/constitutionalliOOguitrich 
 
Constitutional Limitations 
 
 UPON 
 
 Special Legislation 
 Concerning Municipalities 
 
 WILLIAM BACKUS GUITTEAU 
 
 Thesis Presented to the Faculty of Philosophy of the 
 
 University of Pennsylvania, in partial 
 
 fulfillment of the requirements 
 
 for the degree of Ph.D. 
 
 TOLEDO, 1905 
 

Table of Contents 
 
 CHAPTER I 
 
 Special Legislation — Its Origin, Growth and Evils 1 
 
 I Origin of Special Legislation . . 1 
 
 II Evils of Special Legislation ... 7 
 
 CHAPTER II 
 
 Constitutional Limitations Upon Legislative Control 
 
 of Municipalities . . . . . 11 
 
 CHAPTER III 
 
 History of Ohio's Attempt to Prevent Special 
 
 Municipal Legislation . . . . .17 
 
 I Constitutional Convention of 1851 . 17 
 II Constitutional Convention of 1873-1874 20 
 
 III Legislation in Ohio Under Constitutional 
 
 Limitations ..... 24 
 
 IV Decisions of the Supreme Court . . 31 
 
 CHAPTER IV 
 
 History of Pennsylvania'' s Attempt to Prohibit Special 
 
 Municipal Legislation . . . . .44 
 
 I Constitutional Convention of 1872-73 . 44 
 
 II Legislative Classification of Municipalities 49 
 
 III Decisions of the Supreme Court . . 50 
 
 CHAPTER V 
 
 How Shall the State Control Municipalities . .61 
 
 239383 
 
CHAPTER I. 
 
 Special Legislation— Its Origin, Growth 
 and Evils. 
 
 I.— ORIGIN OF SPECIAL LEGISLATION. 
 
 Special legislation for our cities is in part an inheritance from England, 
 where for many years legislative authority has been highly centralized. 1 This 
 centralization results in part from the fact that the British Parliament has 
 usually been very tenacious of its authority, and has consequently circum- 
 scribed local divisions within narrow limits, to be exceeded only by its own 
 permission, granted in special acts. From early times the theory has -pre- 
 vailed that, so far as public powers are concerned, municipal corporations 
 are merely the delegates of Parliament, which is the ultimate source of all 
 governmental power. 
 
 Hence it has naturally followed that the powers granted by Parliament 
 to municipalities have been carefully limited and minutely specified. Eng- 
 lish legislation has never attempted merely to announce principles, 
 leaving their application to some administrative official or local body; on the 
 contrary it endeavors to foresee all possible contingencies, and, by leaving 
 little room for the exercise of discretion on the part of governmental officers 
 or agencies, seeks to remove all excuse for arbitrary action.* The 
 English Municipal Code contains no such broad grant of power 
 as is conferred "by section 61 of the French Code of 1884, which de- 
 clares : "The municipal council regulates by its deliberations the affairs of 
 the commune." Thus the English cities, unlike those of continental Europe, 
 are and have always been authorities of enumerated, rather than of gen- 
 eral, powers, and special legislation has consequently been necessary in order 
 to meet new municipal needs. 3 
 
 Thus America received from England the conception of the city as a 
 corporate entity, created by the state for the better government of certain 
 
 1. Freund, American Administrative Law, Pol. Sci. Quar. IX, 403, 409. 
 
 2. Arminjon, L'Administration Locale de L'Angleterre, 253. 
 
 3. De Franqueville, Le Parlement et le Gouvernement Brittaniques, III, 206-7. 
 Concerning this point the author says: "Thus local authorities are obliged to have 
 
 recourse to the legislature just as soon as they wish to act outside of the compara- 
 tively narrow sphere of their ordinary powers. . . . Much is said, and with reason, 
 of the system of decentralization which leaves to local authority so much freedom of 
 action; but it is too often forgotten that there is a central control, that is, the power 
 which is reserved to the Legislature. A mayor is independent of the executive power 
 to a very large degree, but neither he nor his municipal council can authorize a company 
 to open a street of the city to put their gas or water pipes there. The Metropolitan 
 Board of Public Works of London could not place upon a pedestal an Egyptian obelisk 
 which was offered to it, nor bind itself to maintain this monument without obtaining a 
 private bill; and when it asked for authorization to accept in the future gifts of this 
 character, and the power to maintain them, Parliament absolutely refused its permission." 
 
 5 
 
: foetrofegg and possessing no inherent legislative power. Furthermore, in 
 passing upon the question of municipal powers, American courts 
 have accepted the rule of the English common law that grants of municipal 
 power (like all grants of corporate powers), are to be construed strictly, 
 doubtful questions of authority being resolved against the municipality. Ac- 
 cording to the highest authority 1 on this subject, "a municipal corporation 
 possesses and can exercise the following powers, and no others: First, 
 those granted in express words; second, those necessarily or fairly im- 
 plied in or incident to the powers expressly granted; third, those essential 
 to the declared objects and purposes of the corporation — not simply con- 
 venient, but indispensable. Any fair, reasonable doubt concerning the 
 existence of power is resolved by the courts against the corporation, and the 
 power, is denied." 2 
 
 Hence as a result of the legislative unwillingness to grant large powers 
 to cities, and of the legal doctrine of strict construction of municipal powers, 
 it has been necessary for cities, in order to meet new municipal needs caused 
 bj municipal growth and development, to apply to the legislature at nearly 
 every session for special acts, granting additional powers. 
 
 Especially have the cities been obliged to make frequent application for 
 additional financial powers. Taxation and loans are the two chief sources 
 of municipal revenue; and, as to the first of these, it is the settled rule of 
 the common law that without special authorization, no municipal corporation 
 may levy any tax. 3 As to the second source, while it is conceded that mu- 
 nicipal corporations may, without special authorization, incur indebtedness 
 to be paid out of current revenues, it is held by the weight of authority 
 that without legislative warrant they do not possess the power to borrow 
 money or issue bonds as evidences of indebtedness, since such a loan is in 
 reality a tax, and therefore requires prior legislative authorization.* 
 
 Thus in order to enlarge either of these two chief sources of income, 
 cities must, as a rule, apply to the legislature for authority. While the leg- 
 islatures have been unwilling to grant large discretionary powers to the cities 
 in this respect, they have usually been prodigal in passing special acts granting 
 cities the desired financial powers. 6 Ohio furnishes a good illustration of this 
 legislative policy. The "Act to provide for the organization of Cities and In- 
 corporated Villages," passed May 3rd, 1852, 6 was a general act for the govern- 
 ment of Ohio cities, passed in pursuance of constitutional provisions prohibiting 
 special legislation for municipalities. 7 Twenty-two sections of this act were 
 
 1. Dillon, Municipal Corporations, 3d ed., I, 115. 
 
 2. Smith v. Newbern, 70 North Car. 14; s. c, 16 Am. R. 766; Cook County v. 
 McCrea, 93 111. 236. Contra, City of Crawfordsville v. Braden, 130 Ind. 149, s. c, 30 
 Am. R. 214: a recent case which is a departure from the rule of enumerated powers 
 and strict construction. 
 
 3. Cooley, Taxation, 2nd ed., 329, and cases cited. 
 
 4. Nashville v. Ray, 19 Wallace 468; City of Brenham* v. German American Bank, 
 144 U. S. 173. 
 
 5. So prodigal, indeed, tfhat many state constitutions now contain important lim- 
 itations upon the power of the legislature in this respect. The legislative policy has 
 scarcely justified the view that central legislative control of the financial powers of cities 
 is necessary in the interests of the state as a whole, as a bulwark against municipal 
 extravagance. See the act of the Ohio legislature of May 4, 1869 (66 Ohio laws 80), 
 authorizing the city council of Cincinnati to borrow twenty million dollars to establish and 
 maintain a railroad. 
 
 6. 50 Ohio Laws, 223-259. 
 
 7. Constitution of Ohio, Art. II, Sec. 26; Art. XIII, Sec. 1, 6. 
 
devoted to a minute specification of the powers of cities. The power of tax- 
 ation and local assessment was narrowly limited, while the power to borrow 
 money was not granted at all (except in anticipation of the revenue of the 
 current fiscal year). Having been disinclined to grant adequate financial 
 powers to all cities by the act of 1852, the legislature, during the years that 
 followed, found itself obliged to pass many special acts conferring addi- 
 tional financial powers, the constitutional prohibition of special legislation to 
 the contrary notwithstanding. Thus from 1876 to 1892, both inclusive, the 
 Ohio legislature passed a total of 1202 special and local acts affecting mu- 
 nicipal corporations, 1 and of these, 1124, or 93^2% conferred financial powers. 
 Ohio's experience seems to show clearly that special legislation for cities is 
 unavoidable so long as the legislature is unwilling to entrust the cities 
 with large powers, especially with adequate financial powers. 
 
 It is true that in the earlier history of American municipalities, com- 
 paratively large powers were granted by the state to city councils, but an 
 increasing distrust of the latter bodies led to a gradual withdrawal of the 
 powers which they formerly possessed. At the present time not only have 
 most councils lost their former power of organizing and appointing the 
 official service of the city — a change which could be accounted for, at least 
 in part, by the democratic movement which characterized the second quarter 
 of the nineteenth century — but many of their earlier legislative and financial 
 powers have likewise disappeared. The powers thus forfeited by council 
 have inured to the benefit of the state legislature; for in the absence of a 
 system of central administrative control, when council control was dis- 
 credited, central legislative control became inevitable. 
 
 II.— EVILS OF SPECIAL LEGISLATION. 
 
 The evils of special legislation are numerous, and have been repeatedly 
 and forcibly presented. 2 One of the chief objections to such legislation is 
 the lack of adequate knowledge on the part of members of the state legis- 
 lature of the needs of the particular locality for which the special law is 
 designed. The result of this ignorance is that the great majority of legis- 
 lators manifest little legitimate interest in municipal legislation, and such 
 legislation is often passed perfunctorily upon the recommendation of the 
 members from the particular locality. Thus legislative duty is delegated to 
 local representatives who frequently act in combination with the sinister 
 elements in their constituencies. But this power for evil carries with it no 
 corresponding degree of responsibility, since the local members are usually 
 able to shift upon the legislature responsibility for improper measures. From 
 this condition of affairs log-rolling naturally results — the delegation from 
 one city supporting legislation brought forward by another local delegation, 
 in return for similar support to be given in time of need. 
 
 Moreover, even the most formal consideration of innumerable local bills 
 will of necessity detract greatly from the time and attention needed for 
 
 1. Wilcox, Municipal Government in Michigan and Ohio, 79; infra, p. 30. 
 
 2. Dillon, Municipal Corporations, 3rd ed., I, 59; Bryce, American Commonwealth. 
 I, 641; 40 N. J. L-, 1; 18 Albany Law J., 407; Debates and Proceedings of the Ohio 
 State Convention (1850), I, 306, 309; Proceedings and Debates of the Third Constitu- 
 tional Convention of Ohio (1873-74), I, 581, 594; II, part II, 1S18; Debates Pennsylvania 
 Constitutional Convention (1873), II, 589-622; V, 248-267; VII, 332-436. 
 
general legislation. Where special municipal legislation is not prohibited, 
 the legislature is usually obliged to pass upon a multitude of special meas- 
 ures relating to local affairs. Thus in Wisconsin at the session of 1885, there 
 were passed 500 acts relating to municipal affairs, filling 1342 pages of print, 
 while all other acts of that year fill but 600 pages. Kentucky in 1890 passed 
 176 public and 1752 private acts. New York in 1870 passed 808 acts, 212 of 
 which relate to cities and villages, and occupy over three-fourths of the 2,000 
 pages of the laws of that year. In the six years from 1884 to 1889, inclu- 
 sive, New York passed 1284' acts relating to the thirty cities of that state. 
 In one year, 1886, of the 681 acts on all subjects passed by the legislature, 
 280, or about forty per cent of the total number, were special acts conceriv 
 ing a particular city or village. 
 
 Furthermore, this multiplicity of special laws is itself an evil of serious 
 magnitude, since it greatly impairs the value of judicial construction. 1 A 
 decision in case of a special act affecting one city affords no safe precedent 
 in the case of a different act affecting another city. The result is that even 
 the most skilled lawyers are sometimes unable to declare what the law is 
 on important municipal subjects. 2 On this point Chief Justice Church 
 says : "It is scarcely safe for any one to speak confidently on the exact 
 condition of the law in respect to public improvements in the cities of New 
 York and Brooklyn. The enactments referring thereto have been modified, 
 superseded and repealed so often and to such an extent that it is difficult 
 to ascertain just what statutes are in force at any particular time. The 
 uncertainties arising from such multiplied and conflicting legislation lead to 
 incessant litigation with its expensive burdens, public and private." 
 
 Another of the serious evils of special legislation is the opportunity 
 thereby afforded for ripper legislation. 8 On this point the New York commis- 
 sioners of 1876 declared: "It may be true that the first attempts to secure 
 legislative intervention in the local affairs of our principal cities were made 
 by good citizens in the supposed interest of reform and good government, 
 and to counteract the schemes of corrupt officials. The notion that legislative 
 control was the proper remedy was a serious mistake. The corrupt cliques 
 and rings thus sought to be baffled were quick to perceive that in the busi- 
 ness of procuring special laws concerning local affairs they could easily out- 
 match the fitful and clumsy labors of disinterested citizens. The transfer of 
 the control of the municipal resources from the localities to the (State) 
 capitol had no other effect than to cause a like transfer of the methods 
 and arts of corruption, and to make the fortunes of our principal cities 
 the traffic of the lobbies. Municipal corruption, previously confined within 
 territorial limits, thenceforth escaped all bounds and spread to every quarter 
 cf the State. Cities were compelled by legislation to buy lands for parks and 
 places because the owners wished to sell them; compelled to grade, pave 
 and sewer streets without inhabitants, and for no other purpose than to 
 award corrupt contracts for the work. Cities were compelled to purchase, 
 at the public expense, and at extravagant prices, the property necessary for 
 streets and avenues, useless for any other purpose than to make a market for 
 
 1. Debates Ohio Convention (1850-51), I, 309. 
 
 2. Debates Ohio Convention (1873-74), I, 594. 
 
 3. Goodnow, Municipal Home Rule, 26-28. 
 
 8 
 
the adjoining property thus improved. Laws were enacted abolishing one 
 office and creating another with the same duties in order to transfer official 
 emoluments from one man to another, and laws to change the functions ot 
 officers with a view only to a new distribution of patronage, and to lengthen 
 the terms of offices for no other purpose than to retain in place officers 
 who could not otherwise be elected or appointed." 
 
 Another evil resulting from the constant amendment of city charters 
 has been to induce an undue reliance upon legislative mechanism as a 
 remedy for political ills. 1 It has been suggested that the frequent changes 
 in state constitutions constitute one reason why these instruments have not 
 teen as successful as the national constitution; and this reasoning applies with 
 even greater force to city charters, amended as they frequently are at every 
 legislative session. Thus it becomes impossible for any framework of 
 municipal government to be fairly tested upon its merits; and furthermore, 
 citizens become too prone to rely upon legislative enactment to remedy 
 their own political heedlessness. 
 
 The last, and perhaps the most serious objection to special municipal 
 legislation is, that it almost inevitably involves destruction of home rule and 
 local autonomy. In controlling the affairs of cities, state legislatures have 
 usually failed to distinguish between the public and private character of the 
 municipal corporation. In its public or governmental character the municipal 
 corporation represents the state, by which it is entrusted with the perform- 
 ance in a particular locality of certain public or governmental functions — such 
 as certain police and taxing powers, the administration of justice and of the 
 schools, control of elections and of the public health and the support of the 
 poor. On the other hand, in its private or proprietary character the munici- 
 pality is an organ for the satisfaction of local needs — such as the construction 
 of sewers, paving, cleaning and lighting of streets, furnishing adequate 
 water supply, administration of parks, regulation of municipal transportation- 
 matters which interest the state only indirectly, but which are of vital local 
 concern and should be left to local regulation. But the state legislatures, ac- 
 customed habitually to regulate municipal corporations upon their public 
 side, have formed the habit of interfering upon their private side as well. 
 Upon this point Professor Goodnow says: "Our legislatures have made use 
 of their large powers over cities to regulate in detail all the actions of cities, 
 thus reducing them to the position of mere agents of general state ad- 
 ministration." 2 
 
 Such interference in affairs purely local is legally, if not morally, per- 
 missable; for while from the standpoint of their contractual obligations and 
 property rights, municipal corporations are in a quasi-private position, they 
 are not free from legislative interference and control within this sphere.* 
 That is to say, in their private character, municipalities are subject to the 
 liabilities of individuals, but they do not enjoy the benefit of the constitu- 
 tional protection afforded private rights. 
 
 As a result of this failure of the legislatures to grant municipalities a 
 sphere of independent action in local matters, central control has largely 
 
 1. Debates Ohio Convention, 1873-74, I, 590-592; idem, II, part II, 1319. 
 
 2. Goodnow, Municipal Problems, 81. * 
 .3. Except by specific constitutional provision. 
 
 9 
 
destroyed local autonomy. Thus state legislatures habitually interfere to 
 control municipal parks, to regulate transportation within cities, to grant 
 valuable municipal franchises, regulate the salaries of municipal officers, and 
 to provide for the paving of certain streets and the construction of specific 
 sewers. Laws have even been sustained compelling municipalities to pay 
 debts which had been declared not legally binding, 1 as well as measures 
 obliging them to incur debts against their will, and that too, for non- 
 municipal purposes, such as the aiding of railroads.* Against this last evil 
 the cities of some states are protected by constitutional provisions forbid- 
 ding them to incur debts for any purpose beyond a certain amount, usually 
 a percentage of the assessed value of the property within their limits, and 
 prohibiting them from incurring any debts at all in aid of any private cor- 
 poration.' 
 
 The result of this condition of affairs is well described in the report of 
 the Fassett Committee: 4 "The situation then is as follows: That it is fre- 
 quently impossible for the legislature, the municipal officers, or even for the 
 courts, to tell what the laws mean ; that it is usually impossible for the legis- 
 lature to tell what the probable effect of any alleged reform in the laws is 
 likely to be ; that it is impossible for any one, either in private life or in pub- 
 lic office, to tell what the exact business condition of any city is, and that 
 municipal government is a mystery even to the experienced; that municipal 
 officers have no certainty as to their tenure of office; that municipal 
 officers can escape responsibility for their acts or failures by securing amend- 
 ments to the law; that municipal officers can escape responsibility to the 
 public on account of the unintelligibility of the laws, and the insufficient 
 publicity of the facts relating to municipal government; that local author- 
 ities receive permission to increase the municipal debt for the performance 
 of public work which should be paid for out of taxes; that the conflict of 
 authority is sometimes so great as to result in a complete or partial par- 
 alysis of the service; that our cities have no real local autonomy; that local 
 self-government is a misnomer; and that consequently so little interest is felt 
 in matters of local business that in almost every city in the state it has fal- 
 len into the hands of professional politicians." 
 
 1. Lycoming v. Union, 15 Pa. St. 166; Hasbrouck v. Milwaukee, 21 Wis. 217; New 
 Orleans v. Clark, 95 U. S. 644; People v. Lynch, 51 Cal. 15; People v. Supervisors, 70 
 N. Y. 228; Nevada v. Hampton, 13 Nev. 441. 
 
 2. See Perkins v. Slack, 86 Pa. St. 283; People v. Batchellor, 53 N. Y. 128; Du- 
 anesburgh v. Jenkins, 57 N. Y. 177; Cooley, Taxation, 699. 
 
 3. Const. o£ New York. Art. VIII, Sec. 10. 
 
 4. Report made in 1891 on the government of cities in New York: Senate Com- 
 mittee's Report, V, 13. 
 
 10 
 
CHAPTER II. 
 
 Constitutional Limitations upon Legislative 
 Control of Municipalities. 
 
 Recognizing the evils of excessive legislative intervention in local af- 
 fairs, and the desirability of safe-guarding certain rights of local self-govern- 
 ment, most of the states have placed in their constitutions provisions de- 
 signed to accomplish these ends. The most important of these constitutional 
 limitations may be classified under the following heads. (i) Those for- 
 bidding the incorporation of cities (and frequently also of towns) by special 
 act. (2) Requiring the legislature specifically to pass general acts of in- 
 corporation for municipalities (a provision frequently found in conjunction 
 with the foregoing). (3) Forbidding the legislature to enact certain meas- 
 ures concerning municipalities, or prohibiting them from acting, in specified 
 cases, by local or special law. (4) Forbidding the delegation to special com- 
 missions of power to control municipal affairs, and ensuring the local election 
 of local officers. (5) Limiting the number of classes of cities which may 
 be created. (6) Preventing frequent changes in the structure of city gov- 
 ernment by enacting, in the state constitution, a frame-work of municipal 
 government. (7) Granting cities of a certain population the right to frame 
 and amend their own charters. 
 
 (1) Twenty-three states have adopted the first type of the above en- 
 umerated constitutional provisions, and have forbidden their legislatures to 
 pass special acts for the incorporation of cities, (and frequently, of towns 
 also). These states are Alabama, 1 Arkansas, 2 California, 8 Illinois, 4 Indiana, 8 
 Iowa, 6 Kansas, 7 Kentucky, 8 Louisiana, 9 Mississippi, 10 Missouri, 11 Nebraska, 1 ' 
 New Jersey, 18 North Dakota, 14 Ohio, 16 Pennsylvania, 18 South Carolina, 17 
 
 1. Constitution, IV, Sec. 104, par. 5, also XII, Sec. 229. 
 
 2. Constitution, XII, Sec. 2. 
 
 3. Constitution, XI, Sec. 6. 
 
 4. Constitution, IV, Sec. 22. 
 
 5. Constitution, XI, Sec. 13. 
 
 6. Constitution, III, Sec. 20. 
 
 7. Constitution, XII, Sec. 1. 
 
 8. Constitution, Sec. 59, par. 17. 
 
 9. Constitution, Sec. 48. This excepts municipal corporations of less than 2,500 in- 
 habitants, and levee districts and parishes. 
 
 10. Constitution, VII, Sec. 178. 
 
 11. Constitution, IV, Sec. 53. 
 
 12. Constitution, III, Sec. 15. 
 
 13. Constitution, Amend, of 1875, IV, Sec. 7, par. 9 and 11. 
 
 14. Constitution, II, Sec. 69, par. 33. 
 
 15. Constitution, XIII, Sec. 1. 
 
 16. Constitution, III, Sec. 7. 
 
 17. Constitution, III, Sec. 34, par. 3. 
 
 11 
 
South Dakota, 1 Tennessee, 2 Washington, 3 West Virginia, 4 Wisconsin/ 
 Wyoming. 6 
 
 This inhibition of local or special legislation is frequently expressed 
 in the following terms: "The general assembly shall not pass local or 
 special laws in the following cases : * * * For the incorporation of cities 
 and towns." 7 
 
 Of the twenty-three states which forbid the incorporation of cities by 
 special act, the constitutions of fifteen 8 specifically extended the prohibition to 
 include changes or amendments in city charters. Of these the provision 
 contained in the constitution of Nebraska is typical: "The legislature 
 shall not pass local or special laws in any' of the following cases, that 
 is to say : Incorporating Cities, Towns and Villages, or changing or amend- 
 ing the charter of any Town, City or Village." 9 
 
 As a rule, however, even when not specially prohibited, acts amend- 
 ing municipal charters are held by the courts to be within the scope of the 
 prohibition of special acts of incorporation. 
 
 In the constitutions of seven states, 10 instead of the prohibition of special 
 acts incorporating cities, there is a general limitation forbidding the con- 
 ferring of corporate power by special act. Thus the constitution of Kansas 
 provides: ''The legislature shall pass no special act conferring corporate 
 powers." 11 Generally the courts have held that the term "corporation" as 
 here used includes municipal as well as private corporations; and hence 
 this provision has the same effect as the more common one which specifically 
 forbids the incorporating of cities by special act. 12 
 
 (2) Twenty-three states, including many of those which have prohib- 
 ited special acts incorporating municipalities, have adopted the second type 
 cf limitation, requiring the legislature to pass general acts of incorporation 
 for municipalities. A typical provision is that in the constitution of South 
 Carolina : "The General Assembly shall provide by general laws for the 
 organization and classification of municipal corporations." 18 The states whose 
 constitutions contain this provision are: Alabama, 1 * Arkansas, 15 California, 1 * 
 
 1. Constitution, III, Sec. 23. 
 
 2. Constitution, XI, Sec. 8. 
 
 3. Constitution, II, Sec. 28, par. 8, also XI, Sec. 10. 
 
 4. Constitution, VI, Sec. 39, par. 8. 
 
 5. Constitution, Amend. IV, Sec. 31. 
 
 6. Constitution, III, Sec. 27. 
 
 7. Constitution of Iowa, III, Sec. 30. 
 
 8. Illinois, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Pennsylvania, 
 South Carolina, South Dakota, Tennessee, Texas, Washington, West Virginia, Wiscon- 
 sin, Wyoming. 
 
 9. Constitution, III, Sec. 15. 
 
 10. These are: Arkansas, Indiana, Kansas, Louisiana, New Jersey, Ohio, Ten- 
 nessee. 
 
 11. Constitution, XII, Sec. 1. 
 
 12. Atchison v. Bartholow, 4 Kansas 124; Wyandotte City v. Wood, 5 Kansas 603; 
 Topeka v. Gillett, 32 Kansas 431; The State ex rel. v. the City of Cincinnati, 20 Ohio 
 State 18; The State ex rel. v. Mitchell, 31 Ohio State, 592; see also State v. Newark, 
 40 N. J. Law, 550. 
 
 13. Constitution, VIII, Sec. 1. 
 
 14. Constitution, IX, Sec. 104, par. 5, also XII, Sec. 229. 
 
 15. Constitution, XII, Sec. 3. 
 
 16. Constitution, XI, Sec. 6. 
 
 12 
 
Colorado, 1 Idaho, 2 Iowa, 3 Kansas, 4 Kentucky, 6 Mississippi, 6 Missouri/ 
 Nebraska, 8 Nevada, 9 New Jersey, 10 North Dakota, 11 Ohio, 12 South Caro- 
 lina, 13 South Dakota, 14 Texas, 18 Virginia, 16 Washington, 17 W^st Virginia, 18 
 Wisconsin, 19 Wyoming. 20 
 
 (3) The constitutions of certain states either absolutely forbid the 
 legislature from enacting certain measures concerning municipalities, or 
 prohibit them from acting, in certain specified cases, by local or special law. 
 Thus the constitutions of California, 21 Illinois, 22 and Washington, 28 deny the 
 legislature the power to tax municipal corporations, or the inhabitants or 
 property thereof, for municipal purposes. 
 
 Another frequent limitation provides that the legislature may not, by 
 special acts, divide counties or change county seats; and frequently such 
 action is entirely forbidden without the consent of the electors of the 
 county. 24 Another inhibition frequently found is, that the legislature shall 
 not, by special act, open or vacate streets, or highways. Again, the abuse 
 by state legislatures of the franchise-granting power has led to the inser- 
 tion in many constitutions of a provision forbidding the granting of street 
 railway franchises by special act; or, frequently, forbidding such grant 
 without the consent of the local authorities. 25 
 
 (4) A fourth form of constitutional limitation seeks to secure for the 
 municipalities certain rights of local self-government either by forbidding, 
 the legislature to delegate control over municipal affairs to special com- 
 
 1. Constitution, XIV, Sec. 13. 
 
 2. Constitution, XII, Sec. 1. 
 
 3. Constitution, VIII, Sec. 1. 
 
 4. Constitution, XII, Sec. 5. 
 
 5. Constitution, Sec. 156. 
 
 6. Constitution, IV, Sec. 88, also VII, Sec. 178. 
 
 7. Constitution, IX, Sec. 7. 
 
 8. Constitution, XI, (*o), Sec. 1. 
 
 9. Constitution, VIII, Sec. 8. 
 
 10. Constitution, Article of Amend. IV, Sec. 7, par. 11. 
 
 11. Constitution VI, Sec. 130. 
 
 12. Constitution XIII, Sec. '6. 
 
 13. Constitution, VIII, Sec. 1. 
 
 14. Constitution, X, Sec. 1. 
 
 15. Constitution, XI, Sec. 4, 5. 
 
 16. Constitution, VIII, Sec. 117. 
 
 17. Constitution, XI, Sec. 10. 
 
 18. Constitution, XI, Sec. 1. 
 
 19. Constitution, Amend, IV, Sec. 32. 
 
 20. Constitution, XIII, Sec. 1. In Wyoming, as in Massachusetts and South Car- 
 olina, the consent of a majority of the electors of the district is required for its incor- 
 poration as a municipality. 
 
 21. XI, Sec. 12. 
 
 22. XIX, Sec. 10. 
 83. XI, Sec. 12. 
 
 24. Arkansas, XIII, Sec. 3, 4; California, XI, Sec. 2; Colorado, XIV, Sec. 3; 
 Georgia, XI, Sec. 1, par. 3, 4; Idaho, XVIII, Sec. 3; Illinois, X, Sec. 2; Iowa, III, 
 Sec. 30; Kansas, XIX, Sec. 1; Kentucky, Sec. 64. 
 
 25. These states are: Alabama, XII, Sec. 220; Colorado, V. Sec. 25, and XV, Sec. 
 11; Georgia, III, Sec. 7, par. 20; Idaho, XI, Sec. 11; Illinois, IV, Sec. 22, and XI,. 
 Sec. 4; Kentucky, Sec. 59, par. 19; Louisiana, Art. 48; Mississippi, Sec. 90 (r); Mis- 
 souri, IV, Sec. 53; Montana, VI, Sec. 26; Nebraska, III, Sec. 15, and XI (b), Sec. 2; New 
 Jersey, IV, Sec. 7, par. 11; North Dakota, II, Sec. 69, par. 20; Pennsylvania, III, Sec. 
 7; South Carolina, VIII, Sec. 4; South Dakota, X, Sec. 3; Virginia, VIII, Sec. 124?. 
 West Virginia, XI, Sec. 5; Wyoming, XIII, Sec. 4, and III, Sec. 27. 
 
 13 
 
missions or boards, or by providing for the election of all or certain local 
 officers by the people of the localities. 1 Thus Philadelphia's interesting 
 experience with the City Hall Building' led to the insertion in Pennsyl- 
 vania's present constitution of a provision typical of that found in many 
 other state constitutions: "The General Assembly shall not delegate to any 
 special commission, private corporation or association, any power to make, 
 supervise or interfere with any municipal improvement, money, property or 
 effects whether held in trust or otherwise, or to levy taxes or perform any 
 municipal function whatever."* 
 
 One of the most interesting decisions upon the right of local self-govern- 
 ment, in which it was held to be beyond the power of the state legislature to 
 create a special municipal commission with plenary power to compel a city 
 to issue its bonds for park purposes, is the leading case of People ex ret. 
 Park Commrs. v. Common Council of Detroit.* The statute whose con- 
 stitutionality was involved in this case created a Board of Park Commission- 
 ers for the city of Detroit, and also named the commissioners, invested them 
 with power to purchase the necessary lands, at a cost not exceeding 
 three hundred thousand dollars, and imperatively required the city council to 
 provide money therefor by the issue and sale of city bonds. The Supreme 
 Court held that the city could not be compelled, against the will of its council, 
 to issue the bonds; and the decision was based upon the ground that a park 
 was purely a matter of local, as distinguished from state, concern; and that it 
 was beyond the power of the legislature to compel a municipality to contract 
 a debt for local purposes. 
 
 In the opinion rendered by Cooley, J., the court declared: "It is a 
 fundamental principle in this state, recognized and perpetuated by express 
 provision of the constitution, that the people of every hamlet, town and city 
 of the state are entitled to the benefits of local self-government. But au- 
 thority in the legislature to determine what shall be the extent of the 
 capacity in a city to acquire and hold property is not equivalent to, and 
 does not contain within itself, authority to deprive the city of property 
 actually acquired by legislative permission. As to property it thus holds 
 for its own private purposes, a city is to be regarded as a constituent in 
 state government, and is entitled to the like protection in its property rights 
 
 1. Limitations of this type are found in the following constitutions: Arkansas, 
 VII, Sec. 17, 19, 24, 29, 38, 46, 47; California, IV, Sec. 25, par. 9, XI, Sec. 13; Col- 
 orado, V, Sec. 35, XIV, Sec. 6, 8, 11; Connecticut, Amendments X, XXI, XXVIII; 
 Florida, V, Sec. 15, 16, VIII, Sec. 6; Georgia, XI, Sec. 2, par. 1; Idaho, III, Sec. 19, 
 VII, Sec. 6, XVIII, Sec. 6; Illinois, IV, Sec. 22, X, Sec. 6, 8; Indiana, IV, Sec. 22, 
 VI, Sec. 2, 3, 4; Kansas, III, Se,c. 5, 7, 8, 9; Kentucky, Sec. 97 to 100, and 160; Mary- 
 land, IV, Sec. 44, VII, Sec. 1; Massachusetts, Articles of Amendment, XIX; Michigan, 
 X, Sec. 3, XI, XV, Sec. 14; Minnesota, XI, Sec. 4; Mississippi, VI, Sec. 170, 171, 
 Missouri, IX, Sec. 10; Montana, V, Sec. 26, 36, XVI, Sec. 2-5; Nebraska, III, Sec. 15, 
 X, Sec. 4; Nevada, IV, Sec. 20, 26, 32; New Hampshire, Art. 71; New Jersey, IV, Sec. 
 7, par. 11; New York, X, Sec. 1, 2; North Carolina, IV, Sec. 24, VII, Sec. 1 to 7; 
 North Dakota, II, Sec. 69, par. 32, 34; Ohio, X; Oregon, VI, Sec. 6, VII, Sec. 15, 16, 
 17; Pennsylvania, III, Sec. 7, 20, V, Sec. 11; XIV, XV, Sec. 2; South Carolina, V, 
 Sec. 27, 29, 30; South Dakota, IX; Tennessee, VIII, Sec. 1, 2; Texas, III, Sec. 56, 
 V, Sec. 20, 21, 23, VIII, Sec. 14, XVI, Sec. 44; Vermont, Articles of Amendment, 
 14-18; Virginia, VII, Sec. 110, 111, VIII, Sec. 118-121; Washington, XI, Sec. 5, 12; 
 West Virginia, IX, Sec. 1, 2; Wisconsin, VI, Sec. 4, VII, Sec. 12, 14, 15, XIII, Sec. 9; 
 Wyoming, III, Sec. 27, XII, Sec. 5. 
 
 2. On the subject of this commission, see Dillon, Municipal Corporations, 4th ed., 
 I, p. 128; also the ruling of the Supreme Court in Perkins v. Slack, 86 Pa. St., 283. 
 
 3. Pennsylvania Constitution, III, Sec. 20. 
 
 4. 28 Mich, 228; s. c, 15 Am. Rep. 202. 
 
 14 
 
as any natural person who is also a constituent. The right of the state 
 is a right of regulation, not of appropriation. It cannot be deprived of 
 such property without due process of law. And when a local convenience 
 or need is to be supplied, in which the people of the state at large, or any 
 portion thereof outside the city limits, are not concerned, the state can no 
 more by process of taxation take from the individual citizens the money to 
 purchase it, than they could, if it had been procured, appropriate it to state 
 use. * * * From the very dawn of our liberties the principle most un- 
 questionable of all has been this: "That the people shall vote the taxes they 
 are to pay, or be permittted to choose representatives for the purpose." 
 
 As to the local election of certain officers, most state constitutions pro- 
 vide that there shall be elected in each county, by the qualified voters thereof, 
 certain local officers — those most commonly named being the county sheriff, 
 constable, prosecuting attorney, justice of the peace, coroner, probate judge, 
 clerk of court, treasurer, auditor, etc. 1 
 
 (5) The failure of the first type of constitutional provision described 
 above to prevent legislative interference with cities, partly owing to the 
 narrow interpretation given by the courts to the term "special act,"* has 
 led several states to insert in their constitutions a provision limiting the 
 number of classes which the legislature may create. To this limitation is 
 added the restriction that "the powers of each class shall be defined by 
 general laws, so that all municipal corporations of the same class shall pos- 
 sess the same powers, and be subject to the same restrictions." 3 Thus the 
 constitutions of Colorado, 4 Missouri, South Dakota, 6 and Wyoming, 7 limit 
 the maximum number of classes to four. Kentucky 8 places the limit at six, 
 New York 9 at three; and the constitutions of both these states also fix the 
 population included within the various classes. 
 
 (6) In two states frequent changes in the structure of municipal 
 government have been avoided to a certain extent by inserting in the state 
 constitution a framework of municipal organization. Thus Virginia^ devotes 
 nearly six pages of her state constitution 10 to a detailed plan for the structure 
 of municipal government, providing for the election and term of municipal 
 officers, the powers and duties of the mayor, the election and term of mem- 
 bers of council, the mode of enacting ordinances and granting franchises, 
 etc. Similarly the constitution of Maryland contains several provisions re- 
 
 1. Under a constitutional provision that "judicial officers of cities and villages 
 shall be elected and all other officers shall be elected or appointed at such time and in 
 such manner as the legislature may direct" (Const, of Mich., XV, Sec. 14), the Su- 
 preme Court held that the legislature was restrained from itself directly appointing 
 municipal officers whose duties and authority were plainly and exclusively local, such 
 as the board of water commissioners for a particular city. People v. Hurlbut, 24 Mich. 
 44; s. c, 9 Am. Rep. 48. Similar decisions are: Chicago v. Wright, 69 111. 326; Peo- 
 ple v. Draper, 15 N. Y. 543; Speed v. Crawford, 3 Met. (Ky.) 207. 
 
 2. The courts have held that an act is not special which at the time of its pass- 
 age includes but one city, providing others may eventually be included within its 
 scope. See infra, p. 39. 
 
 3. Constitution of Colorado, XIV, Sec. 13. 
 
 4. Constitution, XIV, Sec. 13. 
 
 5. Constitution, IX, Sec. 7. 
 
 6. Constitution, X, Sec. 1. 
 
 7. Constitution, XIII, Sec. 1. 
 8.1 Constitution, Sec. 156. 
 
 9. Constitution, XII, Sec. 2. 
 10. Constitution, VIII, Sec. 116-128. 
 
 15 
 
 
lative to the mayor and council of the city of Baltimore. 1 
 
 (7) Certain states, realizing that the supposed necessity for special 
 municipal legislation results from imperfections in the legislative grant of 
 power to cities, have concluded that the remedy for this condition is in 
 granting larger powers to the municipalities. Accordingly five states- 
 California, Colorado. Minnesota, Missouri and Washington — have inserted' 
 in their constitutions provisions allowing cities of a certain size to frame 
 and amend their own charters, provided such charters and amendments are 
 consistent with the constitution and general laws of the state. 2 
 
 Thus the constitution of California, whose provisions are typical in 
 this respect, provides that any city containing a population of over 3,50a 
 inhabitants 8 may frame a charter for its own government consistent with 
 and subject to the constitution and laws of the state. At any general or 
 special election, the qualified voters of such city may elect a board of 
 fifteen freeholders, who must have been for at least five years qualified 
 electors of the city. It is the duty of this board within ninety days after 
 its election to prepare and propose a charter for the city. Such proposed 
 charter is then to be published, for at least twenty days, in two daily news- 
 papers of general circulation in the city; and within not less than thirty- 
 days after such publication, it must be submitted to the electors of the city 
 at a general or special election. If ratified by a majority of the electors, 
 it is then submitted to the legislature 4 for approval or rejection as a whole, 
 power of alteration or amendment being denied that body. If approved by 
 the legislature it then becomes the charter of the city, and the courts are re- 
 quired to take judicial notice thereof. 
 
 Provision is made for the amendment of the charter thus adopted at in- 
 tervals of not less than once in two years. Upon petition of fifteen per cent, 
 of the qualified voters, it is the duty of the legislative authority of the city to 
 submit to the voters the amendments petitioned for. Such amendments are 
 then published and voted upon, and if accepted by the electors of the city,, 
 and subsequently ratified by the legislature, they become an integral part 
 of the charter. 
 
 In none of these five states, so far as can be ascertained, have state 
 interests in any way suffered through the large degree of self-government 
 granted to the cities. In Minnesota ten cities have formed charters under 
 this constitutional provision — these cities being Ely, Willmar, Fairmont, 
 Fergus Falls, Austin, Duluth, St. Paul, Blue Earth, Moorhead and Barnes- 
 ville. In Oregon a proposed constitutional amendment permitting cities and 
 towns to frame charters for their own government was adopted by the legis- 
 lative assemblies of 1901 and 1903, but no provision has been made for its 
 submission to the voters for final adoption or rejection. 6 
 
 1 Constitution, XI, Sec. 1-9. 
 
 2. California, XI, Sec. 8-8J4; Colorado, XX, Sec. 4-6; Minnesota, IV, Sec. 36; 
 Missouri, IX, Sec. 16-17; Washington, XI, Sec. 10. 
 
 3. In Colorado this privilege is granted to first and second class cities; in Mis- 
 souri to cities with over 100,000 inhabitants; in Washington to cities with over 20,000' 
 inhabitants. 
 
 4. Colorado, Minnesota, Missouri and Washington do not require legislative ac- 
 ceptance of the charter adopted. 
 
 5. For a further discussion of this topic, see infra, p. 62. 
 
 16 * 
 
CHAPTER III. 
 
 History of Ohio's Attempt to Prevent 
 Special Municipal Legislation. 
 
 I— CONSTITUTIONAL CONVENTION OF 1851. 
 
 Ohio's first constitution, adopted in 1802, placed no restrictions upon 
 legislation for municipalities, except that a certain measure of home rule 
 was assured by Sections i and 3 of Article 6, guaranteeing the inhabitants 
 of counties, towns and townships the right to elect their own officers. In 
 the early part of the century the population of the state was so largely rural 
 that municipalities and their governing was a comparatively unimportant mat- 
 ter. But by the middle of the century conditions were changing. Ohio's 
 population of 50,000 at the beginning of the century had increased to almost 
 2,000,000. With the development of industry, new towns were coming into 
 existence. By 1850 there were eleven towns of over 5,000 inhabitants, and 
 their aggregate population was 205,354. Each town was incorporated by a 
 special act or charter, and from time to time supplementary special acts would 
 be passed, designed to advance its interests. By the middle of the century 
 the attention of the legislature was being largely occupied with municipal af- 
 fairs — thus at the session of 1849-50, 73 acts were passed relating to towns 
 and cities. 
 
 Corporate enterprises were likewise developing with great rapidity. 
 Railway companies, canal companies, turnpike companies — companies of 
 every description were being promoted, each of which sought to obtain 
 advantageous charter privileges from the state legislature. At the ses- 
 sion of 1849-50, a total of 545 local and special lacts were passed, 78 of 
 which related to turnpike roads, 75 to plank roads, and 67 to railway com- 
 panies. Such a development of corporate enterprises was of course ex- 
 cessive, and since it involved the commmunity at large in serious financial 
 loss, the people all over the state conceived a most profound distrust of 
 corporations and of corporate undertakings. 
 
 Moreover, in addition to the power to create corporations by special 
 act, the state legislature possessed the power to construct works of internal 
 improvement through the agency f private corporations. Counties, cities and 
 towns could also be authorized to construct internal improvements of a local 
 character, by subscribing to the stock of private corporations, for which 
 purpose debts might be contracted and taxes levied to pay them. The 
 
 17 
 
legislation authorizing local governmental agencies to subscribe to the stock 
 of private corporations was usually passed without investigation or reflec- 
 tion, whenever desired by the representatives of the localities affected. As a 
 result, private property was in effect placed at the mercy of irresponsible 
 local majorities, and the municipal divisions of the state became involved in 
 all the frauds and disasters of the private companies to whose stock they had 
 subscribed. Wasteful expenditure, impaired public credit, a large debt, 
 and a heavy burden of taxation were the results of this unrestricted legis- 
 lative power. A strong sentiment was created in all parts of the state in 
 favor of summoning a constitutional convention which should check these 
 growing evils by an effectual reduction of the powers of government and 
 unequivocal limitations upon its future capacity for action. 
 
 The second Ohio Constitutional Convention assembled at Columbus, May 
 6, 1850. The first session lasted from May 6 to July 9, 1850, when the 
 convention adjourned to reassemble at Cincinnati, where the final session 
 lasted from December 2, 1850, to March 10, 1851. 
 
 Of the 108 members composing the convention, 30 were born in Ohio, 
 25 in Pennsylvania, 20 in New England, 9 in New York, 8 in Virginia, while 
 4 were of foreign birth. Forty-two of the members gave their occupation 
 as that of lawyer, 34 that of farmer. In their political affiliations a majority 
 of the members were Democrats, the vote for President of the Convention 
 standing: William Medill, Democrat, 60; Joseph Vance, Whig, 38; other 
 candidates, 5. 
 
 Standing committees were appointed May 14, 1850, the subject of cor- 
 porations being assigned to two committees, one on banking corporations, 
 the other "on Corporations other than Corporations for Banking." The lat- 
 ter committee presented its first report June 1, 1850, two important sections 
 of which were as follows : 
 
 "Section i. The legislature shall pass no special act conferring cor- 
 porate powers. 
 
 "Section 6. It shall be the duty of the legislature to provide for the 
 organization of cities and incorporated villages by general laws," etc. 
 
 This report was read, ordered printed, and on June 8, was taken up for 
 discussion. In explaining the reason for adopting section 1, Mr. Norris, 
 chairman of the committee, said: "Some of the state constitutions con- 
 tained an exception, so far as municipal corporations were concerned. 
 There was no very definite conclusion come to on the part of the committee, 
 whether this exception should be named or not; but they concluded, however, 
 unanimously to make this report, without a section of that nature. They 
 believed that all the corporations of the state could be as well regulated by 
 general as by special acts of incorporation— by some classification in cities 
 —by the number of inhabitants, or by some other means which might be 
 thought prudent by the legislature." 1 
 
 Mr. Stanton, another member of the committee, said in support of 
 the report: "The consideration of a general law always induced caution 
 and care with respect to every provision, because it was to operate all 
 over the state. But now, when an application is made to the legislature for 
 
 1. Debates Ohio Convention, 1850-51, Vol. I, 304. 
 
 18 
 
an act of incorporation for a town or city, it was a purely local matter — 
 interesting, perhaps, to none but the corporators themselves, and the mem- 
 ber for a single county, and nobody else caring anything about it — it 
 passes without examination, because it does not operate over the whole 
 state." 1 
 
 Another member of the convention, Mr. Taylor, dwelt upon the im- 
 portance of judicial construction in the case of every law. The value of 
 judicial construction was impaired when the laws lacked uniformity, since 
 the decision in the case of an act affecting one city could afford no safe 
 precedent in the case of a different act affecting another city. On the other 
 hand, "if corporations, municipal and private, were framed and regulated 
 by general laws, then a mooted point in any locality, instead of being a 
 special and temporary case, would immediately become practical and useful 
 matter of reference in all quarters of the state." 2 
 
 Opposing the report, Mr. Hitchcock argued that special legislation 
 could not be dispensed with. "He doubted very much whether there could 
 be a general law devised which would apply to all the diversified require- 
 ments of our municipal corporations. It seemed to his mind that the same 
 charter which would apply to the city of Cincinnati would not be a suitable 
 measure for a village that did not contain more than 500, or perhaps not 
 more than half that number of inhabitants." 3 
 
 Mr. Hawkins and Mr. Reemelin both replied to this argument, declar- 
 ing that there was no necessary difficulty about legislating by general law 
 upon the subject of municipal corporations. 
 
 Mr. Stanbery then proposed to amend Section 1 to read: "Provided 
 that the legislature shall pass no special act conferring corporate privileges 
 except for municipal purposes, and where, in their judgment, the objects 
 can be better attained than under a general law." This amendment was 
 rejected by a vote of 50 to 30. 
 
 No other amendments were offered, and the report, practically in the 
 form first presented by the committee, was adopted by the convention. Thus 
 the three sections of the constitution of 1851 (which is still the fundamental 
 law of the state) referring to municipal corporations read as follows: 
 
 (1) "All laws of a general nature shall have a uniform operation 
 throughout the state." 4 
 
 (2) "The General Assembly shall pass no special act conferring cor- 
 porate powers." 5 
 
 (3) "The General Assembly shall provide for the organization of 
 cities and incorporated villages by general laws; and restrict their power 
 of taxation, assessment, borrowing money, contracting debts and loaning 
 their credit, so as to prevent the abuse of such power." 6 
 
 The convention having completed its labors, adjourned March 10, 
 185 1. The new constitution was adopted by a majority of 16,288, and Wil- 
 liam Medill, president of the convention, was chosen governor. 
 
 1. Debates Ohio Convention, 1850-51, Vol. I, 306. 
 
 2. Debates Ohio Convention, 1850-51, Vol. I, 309. 
 
 3. Debates Ohio Convention, 1850-51, Vol. I, 310. 
 
 4. Constitution, Art. II, Sec. 26. 
 
 5. Ibid, Art. XIII, Sec. 1. 
 
 6. Ibid, Art. XIII, Sec. 6. 
 
 19 
 
II.— CONSTITUTIONAL CONVENTION 
 OF 1873-4. 
 
 The constitutional convention of 1873-4 assembled at Columbus, May 
 13, 1873, and after an adjournment completed its labors at Cincinnati in 
 1874. The 105 members included 62 lawyers, 16 farmers, 7 merchants, 
 6 physicians, and 14 others of miscellaneous occupations. The conven- 
 tion chose for its President a Republican, Morrison R. Waite, subsequently 
 Chief Justice of the United States. Although the constitution then drawn 
 up was rejected by the people, the study of the convention debates throws 
 much light upon the history of special legislation in Ohio. 
 
 On June 25, 1873, the committee on municipal corporations submitted 
 a report in five sections which it recommended for insertion in the new 
 constitution. 'Section one of this report reads as follows: 
 
 "The General Assembly shall, by general laws, provide for the organi- 
 zation and classification of municipal corporations; the number of such 
 classes shall not exceed six, and the powers of each class shall be defined 
 by general laws, so that no such corporation shall have any other powers, or 
 be subject to any other restrictions, than other corporations of the same class. 
 The General Assembly shall restrict the power of such corporations to levy 
 taxes and assessments, borrow money and contract debts, so as to prevent 
 the abuse of such power." 1 
 
 Mr. Hoadly of Cincinnati, as chairman of the committee, opened the 
 debate, and in a speech of marked ability explained the motives which had 
 governed the committee's action. The object of this section, Mr. Hoadly 
 declared, was to fortify and throw additional bulwarks around the present 
 constitution, so that its provisions denying the power of special legislation 
 with regard to municipal corporations could not thereafter be evaded. 
 After giving an interesting account of special legislation in Ohio up to 
 date, Mr. Hoadly said: "That nearly all of these statutes are unconstitu- 
 tional and void, as being special legislation, I imagine all lawyers would 
 admit. It is not classification to single out a city having a particular popula- 
 tion, or a village of 5,641, and say that any village having that population, as 
 published in that book, and no more, shall have authority to build head of 
 division and car shops." 2 
 
 The chief objections to such special legislation, according to Mr. Hoadly, 
 were two: First, that a law for the benefit of a particular city has the at- 
 tention only of the representatives from that city, receiving no adequate 
 consideration from the legislature as a whole; and second, that special 
 legislation is peculiarly productive of omnibus and log-rolling legislation. 8 
 
 Mr. Hoadly next pointed out that in the committee's opinion, it was im- 
 possible to govern all cities and villages on the same stereotyped system, on 
 account of differences in population ranging from 200 to 200,000. In sug- 
 gesting six classes he was aware that they were trespassing upon the province 
 of legislation, but they must either do this or give up the matter altogether. 
 
 1. Debates Ohio Convention, 1873-74, Vol. I, 578. 
 
 2. Debates Ohio Convention, 1873-74, Vol. I, 581. 
 
 3. Ibid, Vol. I, 581. 
 
 20 
 
"Six classes would be sufficient to allow the real divisions of corporations 
 to be recognized by law, and yet the number would be so small that ficti- 
 tious and unnecessary provisions would not prevail." 1 
 
 The first important speech against the committee's report was made by 
 Mr. John W. Herron, of Cincinnati, on July 9, 1873. The chief points made 
 by Mr. Herron were as follows: 
 
 (1) The cities of Ohio were as carefully and as prudently managed 
 prior to 1851 under special laws as they have been since that date. 
 
 (2) If cities are to borrow money, they should be compelled to apply 
 to the legislature for that power. It is unsafe to entrust the power to bor- 
 row money under general laws io the city councils, where the rings have 
 most power. 
 
 (3) Special legislation is often necessary to protect the people of 
 cities from rings which have gained control of the city's government. 
 "Look at the acts which have been passed since 1851 and you will find that 
 a large number of them have been for the special purpose of protecting 
 the people from the persons in whose power they had placed the control of 
 the municipal corporation; and if you take from the legislature this power, 
 then you leave the people completely helpless. There will arise under gen- 
 eral laws, circumstances which will require the legislature to step in and 
 protect the people by some kind of special legislation, from the corporate 
 authorities that have obtained control of the cities." 2 
 
 (4) With a single exception, 3 the many instances of special legisla- 
 tion since 185 1 have never been questioned in a judicial proceeding. This 
 shows that the people have been thoroughly satisfied with special legisla- 
 tion and that they acquiesce in its necessity. 
 
 (5) This necessity is so real that whatever prohibitions or restrictions 
 are adopted will be evaded. 
 
 (6) The growth and prosperity of cities will be checked by the rigid 
 features of the proposed classification.* 
 
 In his speech against the report, Mr. Alexander of Van Wert made the 
 following objections to the adoption of the proposed plan: (1) Contin- 
 gencies now unforeseen may arise which will make special legislation an 
 absolute necessity. (2) A comparison of the laws of 1850 and 1870 shows 
 that the operation of the present constitution has been valuable, and that 
 special legislation, so far as it is an evil, has been remedied. (3) The 
 division of cities into six classes would increase the evil of negligence on 
 the part of the legislators as to all matters which do not pertain to the 
 class to which their constituency belongs. (4) The proposed plan usurps 
 legislative functions, and is based upon an unwarrantable distrust of the 
 legislature. 8 
 
 Supporting the committee's report, Mr. Scribner of Toledo pointed out 
 that from 185 1 to 1868, over 200 statutes had been passed, special in their 
 nature but general in form, and as a result the laws concerning municipal 
 
 1. Debates Ohio Convention, 1873-74, Vol. I, 582. 
 
 2. Debates Ohio Convention, 1873-74, Vol. I, 590. 
 
 3. State v. Cincinnati, 20 Ohio St., 18. 
 
 4. Speech of Mr Herron, Debates Ohio Convention, 1873-74, Vol. I, 590-92. 
 
 5. Debates Ohio Convention, 1873-74, Vol. I, 593-94. 
 
 21 
 
corporations were in almost inextricable confusion. 1 
 
 The most effective speech against the committee's report was pro- 
 bably that of Mr. Rufus King, a delegate from Cincinnati, and president of 
 the convention after the resignation of Mr. Morrison Waite. Mr. King 
 said: "The convention of 1851 attempted an impossibility. It sought to 
 force uniformity upon the cities and villages of Ohio, by the passage of 
 this Thirteenth Article on corporations. * * * What I object to in the 
 existing constitution and in the proposition now before us, is this idea of 
 governing cities and villages upon the same principle that you regulate banks, 
 railroads, cotton factories and private corporations of every sort; thus as- 
 suming to place the people of our cities or towns upon the same footing in 
 respect to the great functions of municipal government upon which you ad- 
 minister the dollar and cent operations of private corporations, created for 
 mere trade and commerce. ****** 
 
 "The Convention of 1851 found the state enjoying, in a high degree, the 
 privileges and benefits of municipal independence. * * * I mean, inde- 
 pendence of the various cities from any control or interference of each 
 other. * * * Of all this independence, which the people of Ohio were 
 thus enjoying, the Constitution of 1851 deprived us. It repealed at one 
 stroke, and so far as I can discover, without debate or murmur, the inde- 
 pendent charters under which all our cities and towns were enjoying, each 
 their own little system of organization and management. * * * * It 
 undertook to amend every charter of every city and town in Ohio and to 
 compel the legislature to put them all under general and uniform laws. 
 
 "But, sir, it has proved a total failure. The Chairman of the Committee 
 admits that it is a failure. The people of the State, the Legislature and the 
 courts, have virtually repealed it, long since, by evasions directly in viola- 
 tion of its letter and spirit. It could not be kept. It was an impracticability 
 — a mere abstraction. The only object which it was to subserve was to get 
 rid of special legislation; but it has rather served to multiply such legisla- 
 tion, and has introduced confusion far worse than any that can be found 
 under the legislation prior to 1851. Legislation has become so special and 
 intricate, under these 'general laws,' that it is now almost impossible for any 
 man, except he be a lawyer, and it is difficult, even, for many of them, to 
 
 tell what the law is with regard to many points in municipal government. 
 
 * * * * 
 
 "It is said there was once a monarch named Procrustes, who by a general 
 law decreed every man in his kingdom to be of the same size, and he put 
 them in a uniform machine which cut off their heads or their feet, just as 
 the circumstances required. It seems very much like the same thing when 
 we require municipal governments in Ohio to be all of one and the same 
 organization. It has proved a failure. The Legislature and the Supreme 
 Court have disregarded it, and the people of Ohio are living in plain violation 
 of their Constitution. They cannot live under it; and the proposition now 
 brought forward by the Committee as a substitute is, in my judgment, cal- 
 culated to make the evil worse than it already is. For, sir, while the Legis- 
 lature and the courts have driven a coach and four through this uniformity 
 
 1. Debates Ohio Convention, 1873-74, Vol. I, 594. 
 
 22 
 
clause in the present constitution, by a system of classification and circum- 
 locution which has become the laughing stock of the people of the state, it 
 is now proposed to amend by dividing all the cities, towns and villages in 
 Ohio into six classes, and to hedge in each of these classes by a cast-iron 
 provision of the Procrustean sort, so terrible as to defy opposition." 1 
 
 In the latter part of his speech Mr. King laid much emphasis upon the 
 strife between various cities which, he declared, would result from the pro- 
 posed plan. "The objection to the whole system is this, that it compels the 
 different cities which must thus be grouped together into one class, to be 
 perpetually interfering with each other, engaging in a constant internecine war 
 with each other, with regard to all of the small details of their home gov- 
 ernment. It necessarily puts them at war with each other upon every di- 
 versity which either or any of the class may seek from the Legislature in 
 organization, power or liabilities." 2 
 
 The argument that the proposed plan would destroy local autonomy was 
 answered by several delegates, who pointed out that general laws could be 
 passed establishing the outlines of municipal organization, leaving details to 
 be regulated by each city in accordance with its own needs. "We should 
 give them," declared Mr. Powell, "the utmost liberties to have their own 
 institutions managed in their own way, as they deem right and proper; and 
 yet have general laws, applicable to the several cities of the same class, that 
 would be all alike, giving sufficient liberty within that for any special by-laws 
 to regulate their own municipal corporations." 8 
 
 iMr. Griswold and Mr. Townsend likewise argued that the Legislature, 
 after classifying cities, might grant large powers by general laws, leaving 
 the cities to avail themselves of these powers or not as they saw fit* To 
 this Mr. Neal replied that in many cases it would not foe prudent to leave 
 such a decision to the voters of a city. "A law is passed," said he, "author- 
 izing cities of a certain class to borrow money to the amount of fifty thous- 
 and dollars for the purpose of improving the streets. Very well; take the 
 town of Ironton still as an illustration. A large number of men there sup- 
 port their families by laboring on the streets at this present time; and 
 though the town may be badly in debt, they can go to the polls and compel 
 the taxpayers to borrow the money." 5 
 
 In his remarks closing the debate, Mr. Hoadly clearly re-stated the 
 object of the new plan as follows: "If we can only reduce the classes to a 
 number so small as to require, substantially, a rule of classification for the 
 state, you break up the mischief practised under special legislation of govern- 
 ing cities from without; and by requiring that all cities, towns and villages 
 of the same class shall have the same powers, you compel the Legislature to 
 establish a general system, under the organic law, for all corporations of the 
 same class ; and then the people under that 'Constitution, within that organic 
 law, may govern themselves, and there will be no possibility of the Legisla- 
 ture taking away those powers which those people ought to exercise, unless 
 
 1. Debates Ohio Convention, 1873-74, Vol. II, part II, 1300-01. 
 
 2. (Debates Ohio Convention, 1873-74, Vol. II, part II, 1301. 
 
 3. Debates Ohio Convention, 1873-74, Vol. II, part II, 1303. 
 
 4. Ibid, pp. 1306-7; 1309. 
 
 5. Debates Ohio Convention, 1873-74, Vol. II, part II, 1309. 
 
 23 
 
they take them also from the other cities of the same class at the same 
 time." 1 
 
 To Mr. Herron's argument that it was frequently necessary for the state 
 legislature to intervene in the affairs of a particular city to remedy its bad 
 government, Mr. Hoadly replied: "I do not believe you can cure intestine 
 disorder by outside application. You must begin where the disease is. If 
 the (people are able to govern themselves, they ought to be allowed — through 
 their own agencies — to correct their follies and mistakes, and return to the 
 better way. You cannot cure them by external application." 1 
 
 The contest in the convention resulted in a victory for the opponents of 
 special legislation, a test vote showing 52 delegates in favor of the commit- 
 tee's report, and 27 opposed to it. Accordingly, the committee's report,* sub- 
 stantially as made, was incorporated in the proposed constitution. While this 
 constitution failed of ratification at the polls (leaving that of 1851 still in 
 force), the convention's discussions constitute an important contribution to 
 the study of special legislation, as well as to the general subject of munic- 
 ipal government.* 
 
 Ill —LEGISLATION IN OHIO UNDER CONSTITU- 
 TIONAL LIMITATIONS. 
 
 By the constitution adopted in 1851, special acts conferring corporate 
 power were forbidden, and it was made the duty of the legislature to pro- 
 vide for the organization of cities and incorporated villages by general laws. 
 Accordingly, on May 3rd, 1852, the Ohio legislature passed a general munic- 
 ipal corporations act, 5 one of the first of its kind passed in the United 
 States. 6 
 
 The first section of this measure repealed all special acts for the govern- 
 ment of municipal corporations, and extended its provisions to existing cor- 
 porations as well as to those which should thereafter be created. The powers 
 and privileges of municipal corporations were then specified with great 
 minuteness, twenty sections of the act being devoted to this purpose (Sec 
 18-39). 
 
 The next division of the act (Sec. 40-43), established the classes into 
 which municipal corporations were divided. Cities with more than 20,000 
 inhabitants were to constitute the first class, and cities with from 5,000 to 
 20,000 inhabitants the second class. Municipal corporations with less than 
 5,000 inhabitants were divided into incorporated villages, and incorporated 
 villages for special purposes (i. e., special road districts). 
 
 In the year following each federal census, it was to be the duty of the 
 Governor, Auditor and Secretary of State to ascertain what cities and vil- 
 
 1. Debates Ohio Convention, 1873-74, Vol. II, part 11, 1318. 
 
 2. Debates Ohio Convention, 1873-74, Vol. II, part II, 1319. 
 
 3. For section I of this report, see supra, p. 20. 
 
 4. See Debates Ohio Convention, 1873-74, Vol. I, 578-95: Vol. II. oart II 1288- 
 1441; Vol. II, part III, 2861-67; 3433-34. 
 
 5. 50 Ohio_ Laws, 223-259. 
 
 6. Missouri passed a general act for the incorporation of towns in 1845; Penn- 
 sylvania in 1851, for the regulation of boroughs thereafter incorporated; Indiana on 
 June 18, 1852, a general municipal corporation act, which did not apply to existing 
 corporations unless they chose to come under its provisions; Iowa adopted the Ohio 
 act, with modifications, in 1860; North Carolina in 1854, a general act applying to all 
 incorporated towns when not inconsistent with special charters or acts referring thereto 
 
 24 
 
lages were entitled to be advanced to a higher class. A statement to that 
 effect was then to be published at Columbus and also in the municipality af- 
 fected, and at its next annual election such municipality was to organize ac- 
 cording to its new grade. 
 
 Incorporated villages were to be governed by one mayor, one recorder, 
 and five trustees, elected annually; the mayor, recorder and trustees consti- 
 tuting the village council, any five of -whom formed a quorum. The corporate 
 authority of cities was vested in the mayor, the board of trustees (two from 
 each ward, who, with the mayor, composed the city council) ; and also in 
 such other officers as were mentioned in the act or created by its authority. 
 
 Sections 89 to 98 of this act relate to the revenues and debts of municipal 
 corporations. Narrow limitations were placed on the taxing and borrowing 
 powers. Loans could only be made in anticipation of the revenues of the 
 current fiscal year, and then only in the following amounts : for cities of the 
 first class, $100,000; second class, $50,000; villages, $5,000; special road dis- 
 tricts, $1,000. The tax limits for general and incidental expenses were fixed 
 for the four classes of municipalities at five, three, three, and two and a half 
 mills on the dollar, respectively. In addition to the amount thus authorized 
 for general purposes, there could be levied to create a special fund for the 
 purpose designated, and to be applied to no other: for police department, 
 first class cities, two mills ; second class, one mill ; fire department, both 
 classes, one mill; for creation of sinking fund, both classes, one-half mill; 
 payment of interest on debt, both classes, not over two mills ; and in first 
 class cities only, for workhouse, one and one-half mills; for water-works, 
 one-half mill ; for school purposes, two mills, and for city infirmary, two 
 mills. 
 
 Such, in outline, was Ohio's first general law for municipalities. In the 
 following year, 1853, a supplementary and amendatory act 1 was passed, con- 
 sisting of thirty-four sections. The most important of these related to the 
 advancement of municipalities, delimited their financial powers, and gave 
 city councils full power to fix or alter ward boundaries. It was now pro- 
 vided that no city or incorporated village should 'be advanced to a higher 
 grade, until its trustees, by resolution addressed to the secretary of state, 
 should signify the municipality's acceptance of such advanced grade. Addi- 
 tional financial powers were granted by the act, but these were as strictly 
 limited as in the act of 1852. 
 
 These acts of 1852 and 1853 form the framework for the municipal leg- 
 islation passed in subsequent years. It is noteworthy that the plan of class- 
 ification was introduced by the first law passed, and that the second made 
 advancement optional with each city — thereby making it possible for the 
 legislature, by creating additional classes for new corporations, to allow 
 each important municipality to remain a class by itself.* Thus classification 
 became isolation; and the Supreme Court of Ohio sanctioned the plan by 
 declaring constitutional a law which applied to all members of a class, even 
 though but one city was included in the class at the time of its enactment, 
 providing other cities might eventually, by increase in population and ad- 
 vancement in grade, come within its terms. 3 
 
 1. 51 Ohio Laws, 360-374 (March 11, 1853). 
 
 2. For illustration of the working of this policy, see infra, p. 29. 
 
 3. Infra, p. 39. 
 
 25 
 
Moreover, unlike the Pennsylvania court, the Ohio court left the creation 
 of additional classes wholly to legislative discretion — and the result was a 
 confusing mass of special legislation, made general in form by means of the 
 most elaborate plan of municipal classification — more properly, municipal 
 isolation — ever devised. 
 
 One of the earliest examples of special acts put in the form of a general 
 law was the law of April 5, 1856, 1 which applied to cities of the first class with 
 a population of less than 80,000 at the last, or any succeeding, census. This 
 measure, which effected radical changes in the municipal machinery of Cleve- 
 land, was put in this form so that it would not apply to Cincinnati, also a 
 city of the first class. Another special act 8 of the same year authorized a 
 higher limit of taxation in cities of the first class which at the last federal 
 census had a population exceeding 100,000. In the following year, 1857, the 
 act establishing the rate of taxation for city and village purposes excepts 
 Cincinnati by name from its operation 8 . A law of 1859 4 conferred certain 
 powers upon city councils in cities of the first class then having a population 
 of less than 80,000 and more than 35,000, Cleveland being the city affected. 
 In 1861 several important changes in the city government of Cleveland were 
 made by two acts, 5 each of which applied "only to such cities of the first class 
 having a population less than 80,000 inhabitants as are of that class at the 
 time it takes effect." By another law* of the same year, cities of the second 
 class with a population of not less than 12,000 were authorized to fund their 
 debts and issue bonds to the amount of $25,000. 
 
 By the year 1863 the full tide of special legislation had set in. During 
 the nine years from 1853-1862, a total of 29 special acts affecting municipal- 
 ities had been passed; in the seven years following, or from 1863 to 1869, 
 99 such acts were passed. Many special and temporary classifications were 
 now used. Thus the act of March 25, 1863, 7 authorized the erection of a 
 work-house in second class cities whose population exceeded 13,000. Three 
 cities, Columbus, Dayton and Toledo, came within this category. By an act 
 passed in 1864, 8 any second class city having over 13,000 and less than 
 20,000 inhabitants at the last federal census (Columbus and Toledo), was 
 authorized to borrow not over $30,000 for cemetery purposes. From time to 
 time the population limit in laws intended for Cincinnati was increased so as 
 to shut out Cleveland; thus in 1864 and following years Cincinnati was re- 
 ferred to as "any city of the first class whose population exceeded 100,000 
 at the last federal census." Toledo was singled out in several palpably special 
 acts — one of which was the act of April 5, 1866, 9 which applied to "any sec- 
 ond class city having a population under 14,000 at the last federal census 
 and having within its limits a canal," etc. Dayton was carefully identified 
 by the law of February 27, 1867, 10 as "any city with a population of 20,081 at 
 the last federal census;" again as "all cities of the second class having over 
 
 1. 53 Ohio Laws, 57. 
 
 2. 53 Ohio Laws 214 (April 11, 1856). 
 
 3. 54 Ohio Laws 234 (April 17, 1857). 
 
 4. 56 Ohio Laws 127 (April 4. 1859). 
 
 5. 58 Ohio Laws 25 (March 1, 1861) ; and 58 Ohio Laws 39 (March 21, 1861). 
 
 6. 58 Ohio Laws 103 (April 23, 1861). 
 
 7. 60 Ohio Laws 45. 
 
 8. 61 Ohio Laws 72 (March 28, 1864). 
 
 9. 63 Ohio Laws 120. 
 
 10. 64 Ohio Laws 26 (Feb. 27, 1867). 
 
 26 
 
20,000 population;" 1 and still again as "any city having a population of less 
 than 25,000 and more than 20,000 at the last federal census." 2 Equally special 
 were many of the laws affecting Cincinnati. Thus the first section of the act 
 of April 13, 1868,* declared: 'The city council of any city of the first class 
 having a population exceeding 150,000, shall have the power to issue the 
 bonds of such city, in any sum not exceeding $150,000 to be used for the 
 purpose of completing the Eggleston avenue sewer." Section 3 continued: 
 "Whenever any of the bonds herein provided for shall be for sale, not less 
 than ten days' previous notice Of said sale shall be advertised in Cincinnati." 
 In the following year, 1869, another act* was passed referring to Cincinnati, 
 likewise palpably special: "The city council of any city of the first class 
 having a population of 150,000 inhabitants, wherein a public avenue of not 
 less than one hundred feet in width is now projected, to be known as 'Gil- 
 bert Avenue', is hereby authorized to issue the bonds of said city in any 
 sums not exceeding $150,000. for improving such avenue," etc. 
 
 A general view of the special municipal legislation passed by the legis- 
 lature during the seventeen years from 1853-1869, both inclusive, may be 
 obtained from the accompanying table. Of the 128 special acts passed dur- 
 ing this period, 71, or 55.47 per cent, gave to the municipalities special finan- 
 cial powers, either to borrow money or levy taxes. The history of this 
 legislation would seem to warrant the conclusion that special legislation is 
 inevitable so long as the state insists upon a strict control of the financial 
 powers of the municipalities. 6 
 
 Local and Special Acts of the Ohio Legislature Concerning Municipali- 
 ties 1853-1869. 
 
 Year 
 
 Total 
 
 Number 
 
 Acts 
 
 Conferring 
 
 Financial 
 
 Power 
 
 To Borrow 
 Money 
 
 To Levy 
 Tax 
 
 Conferring 
 
 Power 
 (other than 
 Financial) 
 
 Defining 
 Duties of 
 Officers 
 
 Changing 
 Framework 
 of Govern- 
 ment 
 
 1853 
 
 1 
 
 
 
 
 
 
 1 
 
 1854 
 
 1 
 
 
 
 
 
 
 1 
 
 1855 
 
 
 
 
 
 
 
 
 1856 
 
 4 
 
 "i 
 
 
 "2 
 
 
 
 3 
 
 1857 
 
 2 
 
 2 
 
 i 
 
 1 
 
 "i 
 
 ..„ 
 
 
 1858 
 
 2 
 
 
 
 
 
 
 "i 
 
 1859 
 
 5 
 
 "l 
 
 
 i 
 
 "2 
 
 
 2 
 
 1860 
 
 3 
 
 2 
 
 i 
 
 1 
 
 1 
 
 i 
 
 
 1861 
 
 7 
 
 6 
 
 3 
 
 3 
 
 
 1 
 
 "2 
 
 1862 
 
 4 
 
 2 
 
 
 2 
 
 
 2 
 
 
 1863 
 
 10 
 
 7 
 
 "'4 
 
 3 
 
 "2 
 
 
 i 
 
 1864 
 
 13 
 
 6 
 
 4 
 
 2 
 
 7 
 
 
 
 1865 
 
 7 
 
 4 
 
 2 
 
 2 
 
 1 
 
 "2 
 
 
 1866 
 
 13 
 
 7 
 
 2 
 
 5 
 
 5 
 
 
 "i 
 
 1867 
 
 25 
 
 14 
 
 8 
 
 6 
 
 9 
 
 
 2 
 
 1868 
 
 21 
 
 9 
 
 8 
 
 1 
 
 8 
 
 "4 
 
 
 1869 
 
 10 
 
 9 
 
 9 
 
 
 
 1 
 
 
 1853-69 
 
 128 
 
 71 
 
 42 
 
 29 
 
 36 
 
 13 
 
 14 
 
 64 Ohio Laws 122 (April 10, 1867). 
 
 64 Ohio Laws 123 (April 10, 1867.) 
 
 65 Ohio Laws 86. 
 
 66 Ohio Laws 130 (May 6, 1869). 
 For a table of special acts affecting cities passed by the legislature from 1876 
 
 to 1892, see infra, p. 
 
 27 
 
On May 7, 1869, the municipal code of 1869 was passed, consisting of 61 
 chapters and 732 sections. 1 The object was to codify the general laws, with 
 no pretense of putting an end to special legislation — in fact, the code itself 
 excepts Cleveland and Toledo from the operation of the provisions of its 
 police act; and on the very day of its enactment, special acts were passed 
 referring to Cincinnati' and Toledo." 
 
 The legislation in the years following 1869 shows a constant increase in 
 the number of special acts. Notwithstanding the decision in the case of The 
 State v. The City of Cincinnati,* where a special act enlarging the bound- 
 aries of Cincinnati was declared unconstitutional and void, the legislature 
 continued to enact special laws. Thus in three acts 8 in the year 1872, Cleve- 
 land, whose population was 92,829, was the only city included within the dif- 
 ferent limits 50,000 to 100,000, 80,000 to 100,000 and 90,000 to 150,000. In 
 the same year, by a law 8 which authorized the erection of car shops, Dela- 
 ware was identified by the circumlocution "villages or cities contain- 
 ing a population of 5,641, and no more, by the federal census of 1870, pub- 
 lished in the last volume of the Ohio Statistical Report." Xenia was de- 
 scribed as "any city of the second class having a population at the last fed- 
 eral census not exceeding 6,400, nor less than 6,30a 7 Another law affected 
 all cities through which the National Road passed. 8 
 
 In 1876, Cincinnati was given a new police board by an act 9 which pro- 
 vided that "in all cities of the first class, having at the last federal census 
 a population of 200,000 and over, the police powers and duties shall be in- 
 vested in and exercised by a board of five members to be appointed by the 
 governor." In the case of The State v. Covington, 10 the Supreme Court 
 upheld this act on the ground that the powers conferred by the legislature 
 upon the board of police commissioners were not "corporate" powers within 
 the meaning of Art. XIII, Sec. 1 of the constitution. Local laws, the court 
 asserted, were not prohibited by the constitution unless they confer corporate 
 r powers or unless they are of general nature. 
 
 On May 14, 1878, a new municipal code 11 was enacted, in which new re- 
 finements were introduced in the classification of municipalities. Cities were 
 divided into two classes, as before, but each class was subdivided into four 
 grades in accordance with the following plan: 
 
 138. 
 
 1. 
 
 66 Ohio Laws 145-286. 
 
 2. 
 
 66 Ohio Laws 337. 
 
 3. 
 
 66 Ohio Laws 346. 
 
 4. 
 
 20 Ohio Laws 18. 
 
 5. 
 
 69 Ohio Laws 13, 128, 
 
 G. 
 
 69 Ohio Laws 70. 
 
 7. 
 
 70 Ohio Laws 116. 
 
 8. 
 
 70 Ohio Laws 153. 
 
 9. 
 
 73 Ohio Laws 70. 
 
 10. 
 
 29 Ohio State 102. 
 
 11. 
 
 75 Ohio Laws 161-419. 
 
 28 
 
Classification of Ohio Cities by the Municipal Code of 1878. 
 
 Grade 
 
 Population Basis of 
 Classification 
 
 Name of City 
 
 Population in 
 1870 
 
 1st J 2 
 Class | 3 
 
 u 
 
 200,000+ 
 
 Cincinnati 
 
 216,239 
 
 90,000-200,000 
 
 Cleveland 
 
 92,829 
 
 31,500-90,000 
 
 Toledo 
 
 31,584 
 
 To be composed 
 
 of cities advanced from 
 
 second class 
 
 
 ri 
 
 30,500-31,500 
 
 Columbus 
 
 31,274 
 
 
 2 
 
 20,000-30,500 
 
 Dayton 
 
 30,473 
 
 
 3 
 
 10,000-20,000 
 
 Hamilton 
 
 Springfield 
 
 Zanesville 
 
 Portsmouth 
 
 Akron 
 
 11,081 
 12,652 
 10,001 
 10,592 
 10,006 
 
 
 4 
 
 5,000-10,000 
 
 Delaware 
 
 Xenia 
 
 Steubenville 
 
 5,641 
 6,377 
 8,107 
 
 2nd 
 
 
 
 Ironton 
 
 5,686 
 
 Class 
 
 
 
 Newark 
 
 6,698 
 
 
 
 Youngstown 
 
 8,075 
 
 
 
 
 Piqua 
 
 5,967 
 
 
 
 
 Mansfield 
 
 8,029 
 
 
 
 
 Chillicothe 
 
 8,920 
 
 
 
 
 Fremont 
 
 5,455 
 
 
 
 
 Tiffin 
 
 5,648 
 
 
 
 
 Canton 
 
 8,660 
 
 
 
 
 Massillon 
 
 5,185 
 
 
 
 
 Marietta 
 
 5,218 
 
 
 
 
 Wooster 
 
 5,419 
 
 
 • 
 
 
 Springfield (HamiltonCo.) 
 
 6,548 
 
 This classification put each of the five chief cities of the state in a grade 
 (practically a class) by itself, so that any one of them could he easily identi- 
 fied without being named. Thus Columbus would be described in legis- 
 lative acts as "all cities of the first grade of the second class." Five cities 
 were included in the third grade of the second class; hence special acts re- 
 ferring to one of these cities would have to make use of other means of 
 identification, such as "cities of the third grade, second class, with a popula- 
 tion of 10,592 at the last federal census." 1 
 
 The following table gives a general view of the special acts affecting 
 municipalities passed during the seventeen years from 1876 to 1892, both in- 
 clusive. Comparing this table with the one on page 2y, also covering a 
 seventeen year period (1853-1869), it will be noted that the number of special 
 laws during the second period is nearly ten times as great as in the earlier 
 period : while the percentage of laws conferring financial powers has also in- 
 creased — since of the 1202 acts passed during this second period, 1124, or 
 93-5 per cent, conferred financial powers, as compared with 55.47 per cent 
 during the earlier period. 
 
 75 Ohio Laws 541. 
 
 29 
 
Xocal and Special Acts of the Ohio Legislature Conferring Powers Upon 
 Municipal Corporations, 1 876-1 892. * 
 
 Year 
 
 Total Number 
 Acts 
 
 Conferring 
 
 Financial 
 
 Powers 
 
 To Borrow 
 Money 
 
 To Transfer 
 Funds 
 
 To Levy 
 Tax 
 
 1876 
 
 11 
 
 7 
 
 3 
 
 1 
 
 3 
 
 1877 
 
 54 
 
 49 
 
 25 
 
 15 
 
 9 
 
 1878 
 
 41 
 
 35 
 
 22 
 
 9 
 
 4 
 
 1879 
 
 43 
 
 37 
 
 17 
 
 15 
 
 5 
 
 1880 
 
 24 
 
 20 
 
 6 
 
 10 
 
 4 
 
 1881 
 
 31 
 
 24 
 
 15 
 
 8 
 
 1 
 
 1882 
 
 24 
 
 24 
 
 9 
 
 4 
 
 11 
 
 1883 
 
 54 
 
 53 
 
 38 
 
 15 
 
 
 1884 
 
 56 
 
 52 
 
 26 
 
 24 
 
 2 
 
 1885 
 
 62 
 
 59 
 
 38 
 
 18 
 
 3 
 
 1886 
 
 66 
 
 61 
 
 31 
 
 27 
 
 3 
 
 1887 
 
 80 
 
 75 
 
 46 
 
 26 
 
 3 
 
 1888 
 
 117 
 
 109 
 
 51 
 
 56 
 
 2 
 
 1889 
 
 176 
 
 168 
 
 105 
 
 58 
 
 5 
 
 1890 
 
 126 
 
 121 
 
 56 
 
 62 
 
 3 
 
 1891 
 
 156 
 
 151 
 
 72 
 
 77 
 
 2 
 
 1892 
 
 81 
 
 79 
 
 34 
 
 45 
 
 
 ] 876-92 
 
 1,202 
 
 1,124 
 
 . 594 
 
 470 
 
 60 
 
 The following classification 2 of cities was in force at the time when the 
 system was finally declared unconstitutional (June 26, 1902) : 
 
 Grade 
 
 Population Basis of 
 Classification 
 
 City 
 
 1st \\ 
 Class J « 
 
 200,000+ 
 90,000-200,000 
 31,500-90,000 
 
 Cincinnati 
 Cleveland 
 Toledo 
 
 
 '1 
 2 
 3 
 
 30,500-31,500 
 20,000-30,500 
 10,000-20,000 
 
 Columbus 
 
 Dayton 
 
 Sandusky, Akron, Ports- 
 
 2nd 
 
 Class i 
 
 3-a 
 3-b 
 4 
 
 .4-a 
 
 28,000-33,000 
 
 16,000-18,000 
 
 5,000-10,000 (except 
 
 those with from 8,330-9,050) 
 
 8,330-9,050 
 
 mouth, Zanesville 
 Springfield 
 Hamilton 
 
 About thirty municipal- 
 ities 
 Ashtabula 
 
 In the decisions 3 which overthrew the system of classification, the 
 court granted stay of execution until October 2, 1002, to enable the legisla- 
 ture to provide a new frame-work of municipal government. Accordingly 
 
 1. This table is taken from Wilcox, Municipal Government in Michigan and 
 Ohio, p. 79. 
 
 2. .Revised Statutes of Ohio (1898) Sec. 1546-1551. 
 
 3. The 'State of Ohio ex rel. Knisely et al. v. Jones et al, 66 Ohio State. 453. 
 The State of Ohio ex rel. the Attorney General v. Beacom et al., 66 Ohio State, 491. 
 
 30 
 
the legislature assembled in extraordinary session on August 25, 1902, and 
 proceeded to adopt a new municipal code 1 of 231 sections. This code wis 
 declared by the Supreme Court to be a general and constitutional law.* 
 Municipalities were classified into cities and villages, 3 the line being drawn at 
 five thousand population, and no other classification was attempted. The ag- 
 gregate of taxes allowable in municipalities was ten mills on each dollar 
 of valuation ; 4 but an additional levy might be made if the proposition was 
 submitted to the electors of the corporation and approved by two-thirds of 
 those voting upon the same. 6 Council was to have power to borrow money 
 in anticipation of the general revenue fund, but not exceeding the amount 
 estimated to be received at the next semi-annual settlement of tax collec- 
 tions. 6 Deficiency bonds could be issued by council to an amount not ex- 
 ceeding one per cent of the total assessed value of the property in the cor- 
 poration, provided the issuance of such bonds was approved by two-thirds 
 of all members elected to council, and also by a vote of two-thirds of all 
 the electors voting upon the proposition at a regular or special election to 
 be provided by council. 7 
 
 IV.-DECISIONS OF THE SUPREME COURT. 
 
 Appropriate Local Legislation Not Prohibited. 
 
 Section 26 of Article II of the Constitution of 185 1 provides that "All 
 laws of a general nature shall have a uniform operation throughout the state." 
 It will be noted that this provision does not prohibit appropriate local legis- 
 lation. It does not require that all enactments of the legislature shall be 
 of a general nature, and it is therefore entirely competent for the legislature 
 to pass local acts on subjects of a local nature. 8 On subjects of a general 
 D&ture, however, all laws must operate uniformly throughout the state. 
 
 This Provision Mandatory, Not Merely Directory. 
 
 The whole matter, then, hinges on the question whether the particular 
 act is local or general in its nature. This is eventually a question for the 
 court to decide: in other words, the character of the subject matter of a 
 law, whether general or special, is independent of legislative declaration. 9 
 The reason why the decision on this point should ultimately be left for the 
 court is well stated by Judge Minshall in the case of ■Silberman et al. v. 
 Hay: 10 "As to the nature of the subject-matter, the legislature is not the ex- 
 clusive judge. If it were otherwise, then this important provision of the 
 
 1. 96 Ohio Laws 20-106; passed Oct. 22, 1902, became effective November 15, 1902. 
 
 2. Zumstein v. Mullen et al., 67 Ohio State, 382. 
 
 3. Section 1. 
 
 4. This is exclusive of the levy for county and state purposes, for schools and 
 school-house purposes, for free public libraries and library buildings, for university and 
 observatory purposes, for hospitals and for sinking fund and interest. 
 
 5. Sec. 33-34. 
 
 6. Sec. 95. 
 
 7. Sec. 99. 
 
 8. Cricket et al. v. the State of Ohio, 18 Ohio State, 9; Ohio ex rel. v. Covington 
 et al., 29 Ohio State, 10"2 ; Hart v. Murray, 48 Ohio State, 605; Metcalf, Auditor, v. 
 
 the State ex rel., 49 Ohio State 586. 
 
 9. Falk, Exp., 42 Ohio State, 638; Costello v. Wyoming, 49 Ohio State, 202; Gay- 
 lord et al. v. Hubbard, Treasurer, 56 Ohio State, 25. 
 
 10. 59 Ohio State, 582. 
 
 31 
 
constitution would be little more than directory, instead of mandatory as it 
 undoubtedly is. The greatest respect will always be given the determina- 
 tion of the legislature in enacting the law, but where its validity is prop- 
 erly challenged on this ground, it is the duty of the court to pass on it, and 
 if clearly satisfied that the provision has been violated in making that a 
 local, which should have been, if enacted at all, a general law, it is within 
 the power of the court, and its duty, to declare it invalid." 
 
 Special Act Cannot be Made General by Any Form it May be Made to 
 
 Assume. 
 
 In deciding whether a certain act is general or special, the court will 
 consider the substance of the act, and not the mere form it may be made 
 to assume. Thus in an early case 1 the court declared: "The constitutional- 
 ity of an act is to be determined by its operation, and not by the mere form 
 it may be made to assume." This principle the court has repeatedly af- 
 firmed.* 
 
 Subject Matter as Determining Character of a Law. 
 
 According to the principle laid down by Judge Scott in Kelly v. The 
 State of Ohio,' and repeatedly affirmed in later decisions, the character of a 
 law, whether general or special, depends largely upon the character of its 
 subject matter. "If that be of a general nature, existing throughout the 
 state, in every county, a subject-matter in which all the citizens have a 
 common interest — if it be a court organized under the constitution and laws, 
 within and for every county of the state, and possessing a legitimate jur- 
 isdiction over every citizen, then the laws which relate to and regulate it 
 are laws of a general nature, and by virtue of the prohibition referred to 
 must have a uniform operation throughout the state." 
 
 Definition and Illustration of General Law. 
 
 In Heck v. The State, 4 the following definition of general law is 
 given : "A law is general and uniform that applies to all persons and 
 things coming within its provisions throughout the state. Its uniformity 
 consists in the fact that no person or thing, of the description of any 
 person or thing affected by it, is exempt from its operation." 
 
 The following are illustrations of acts which the Ohio Supreme Court has 
 declared to be of general nature, requiring, therefore, uniformity of opera- 
 tion throughout the state: an act relating to the jurisdiction of the Court 
 of Common Pleas; 6 affecting the right of trial by jury; 6 regulating the or- 
 ganization and management of common schools; 7 punishing by fine and im- 
 
 1. The State ex rel. v. the Judges of the Court of Common Pleas of the First 
 Judicial District, 21 Ohio State, 1. 
 
 ft. Ohio ex rel. v. Covington et al., 29 Ohio State, 102; The State ex rel. v. 
 Mitchell, 31 Ohio State, 592; the State v. Powers, 38 Ohio State, 54; The State v. 
 Pugh, 43 Ohio State, 98. 
 
 3. 6 Ohio State, 269. 
 
 4. 44 Ohio State, 536. 
 
 5. Kelley v. The State of Ohio. 6 Ohio State, 269. 
 
 6. Silberman et al. v. Hay, 59 Ohio State, 582. 
 
 7. The State v. Powers, 38 Ohio State, 54. (Overruled in State ex rel. v. 
 Shearer et al, 46 Ohio State, 275). 
 
 32 
 
prisonment any person found with burglar tools in his possession; 1 requir- 
 ing fire-escapes on buildings over three stories in height; 2 authorizing 
 the construction and improvement of streets and sidewalks; 3 providing for 
 the support of the poor; 4 providing for the appointment of a board of 
 equalization and assessment. 6 
 
 As will be seen later 6 in discussing the question of classification, the 
 court has uniformly held that a law relating to certain municipal corporations 
 as a class, and having a like effect upon all within that class, is general. 7 
 
 Illustrations of Local Acts. 
 
 The following are instances of acts which the court has held to be 
 local in their nature and which therefore need not be uniform in opera- 
 tion throughout the state: regulating the compensation of local officers;' 
 detaching territory from a municipal corporation; 9 regulating the mode of 
 selecting jurors; 10 dividing territory into school districts. 11 
 
 Object of Article XIII, Section I. 
 
 The motives which led the constitutional convention of 1851 to adopt 
 Section 1 of Article XIII have been indicated in discussing the history of 
 that convention. 12 In a case 13 decided in 1864 the Supreme Court of Ohio 
 declared that the object of this provision of the constitution was "to cor- 
 rect an existing evil, and to inaugurate the policy of placing all corpora- 
 tions of the same kind upon a perfect equality as to all future grants of 
 power." Again in 1870 in interpreting the same section, the court declared 
 it to have been the aim of the convention "to cut up by the roots, at once 
 and forever, all capacity of the general assembly to confer by special act 
 any powers whatsoever upon any corporate body whatsoever." 14 
 
 This Provision is Restrictive and Mandatory. 
 
 In the same case the court declared Section 1 of Article XIII to be, not 
 directory, but restrictive and mandatory. In other words, this provision 
 does not depend for its observance solely upon the good faith and con- 
 science of the legislature; it constitutes a direct limitation upon the legis- 
 lative power, and subjects the action of the legislature upon this subject to 
 
 1. Falk, Exp., 42 Ohio State, 638. 
 
 2. City of Cincinnati v. Steinkamp, Trustee, 54 Ohio State, 285. 
 
 3. Costello v. Wyoming, 49 Ohio State, 202; Hixson v. Burson et ah, 54 Ohio 
 State, 470; Mott et ah v. Hubbard, Treas., et ah, 59 Ohio State, 199. 
 
 4. The State ex reh v. Bargus et ah, 53 Ohio State, 94. 
 
 5. Gaylord et ah v. Hubbard, Treas., 56 Ohio State, 25. 
 
 6. Infra, pp. 36-37. 
 
 7. McGill v. The State, 34 Ohio State, 228; The State v. Powers, 38 Ohio State, 
 54; Bronson v. Oberlin, 41 Ohio State, 476; The State ex reh v. Hawkins, 44 Ohio 
 State, 98; The State ex reh v. Hudson, 44 Ohio State, 137; Marmet v. The State, 45 
 Ohio State, 63; State ex reh v. City of Toledo, 48 Ohio State, 112; The State ex rel. 
 v. Smith et ah, 48 Ohio State, 221. 
 
 8. Cricket et ah v. The State of Ohio, 18 Ohio State, 9; The State ex reh v. 
 The Judges, 21 Ohio State, 1; Hart v. Murray, 48 Ohio State, 605. 
 
 9. Metcalf, Auditor, v. The State ex reh, 49 Ohio State, 586. 
 
 10. McGill v. Tbe State, 34 Ohio State, 228. 
 
 11. State ex reh v. Shearer, 46 Ohio State, 275 (Overrules The State v. Powers 
 38 Ohio State, 54). 
 
 12. Supra, pp. 17-19. 
 
 13 Atkinson v. The Marietta and Cincinnati Railroad 'Co., 15 Ohio State, 21. 
 14. The State ex reh v. The City of Cincinnati, 20 Ohio State, 18. 
 
 33 
 
judicial review. 1 To this doctrine the court has uniformly adhered in a 
 long line of decisions. In reviewing enactments on this subject, the court 
 has, however, invariably shown the greatest deference toward the legislature. 
 It has repeatedly declared that acts will not be set aside as special unless 
 they clearly contravene the provisions of the constitution;* and further, 
 that constitutional objections are not to be raised officiously, and will not 
 ordinarily be considered by the court unless they are presented in the peti- 
 tion.* 
 
 Applies to Municipal as Well as Private Corporations. 
 
 In the case of The State ex rel. v. The City of Cincinnati 4 the court 
 laid down two principles of great importance in defining the scope of Sec- 
 tion i, Article XIII. The first of these was, that the term "corporation" 
 as used in this section includes municipal as well as private corporations. 
 Counsel for the city had argued that this section did not apply to municipal 
 corporations, a contention which was clearly untenable in view of the 
 wording of the section and the circumstances attending its adoption. The 
 decision on this point was subsequently affirmed in the case of The State 
 v. The City of Cincinnati, 5 The State ex rel. v. Mitchell, 8 and has since been 
 accepted as conclusive. 
 
 Applies to Amendments of Charter as Well as to Original Act of 
 
 Incorporation. 
 
 A second principle laid down in The State ex rel. v. The City of Cin- 
 cinnati, 7 further defined the scope of Section i, Article XIII. The court 
 declared that this section not only forbade the creation <by special act of 
 a new corporation, but also precluded the conferring oi additional powers 
 upon a corporation already existing. The point of the decision was sub- 
 sequently affirmed in The State v. The City of Cincinnati, 8 reaffirmed in 
 The State ex rel. v. Mitchell, 9 and has been followed in all subsequent cases. 
 What Are Corporate Powers? 
 
 No formal definition of corporate power has ever been given by the 
 Supreme Court, but the numerous decisions on this subject show with fair 
 precision the sort of powers included within this class. Until the recent 
 decision in the case of The State ex rel. Knisely et al v. Jones et al. 10 the 
 court has usually made the decision as to what are corporate powers de- 
 pend largely upon the character of the body upon which they are conferred. 
 This distinction is well illustrated in the leading case of The State v. 
 Pugh. 11 This was a case brought to test the constitutionality of an act 
 reorganizing the city government of Columbus. The act authorized the 
 
 1. The same principle is asserted by the Supreme Court of Pennsylvania in Ayar's 
 Appeal, 122 Pa. State, 266. See infra, page 53. 
 
 2. The State ex rel. v. Hawkins, 44 Ohio State, 98; The State ex rel. v. Wall 
 et al., 47 Ohio State, 499; The State ex rel. v. Baker et al., 55 Ohio State, 1. 
 
 3. The State ex rel. v. Mitchell, 31 Ohio State, 592; The State v. Pugh, 43 Ohio 
 State, 98. 
 
 4. 20 Ohio State, 18. 
 
 5. 23 Ohio State, 445. 
 
 6. 31 Ohio State, 592. 
 
 7. 20 Ohio State, 18. 
 
 8. 23 Ohio State, 445. 
 
 9. 31 Ohio State, 592. 
 
 10. 66 Ohio State, 453; infra, p. 42. 
 
 11. 43 Ohio State, 98. 
 
 34 
 
trustees of the city's sinking fund to redistrict the city into wards, and 
 also authorized the city council to appoint three members of a board of 
 control. The court held that the powers conferred upon the sinking fund 
 trustees were not corporate powers; while on the other hand, the authority 
 conferred upon council to appoint three members of a board of control was 
 a grant of corporate power, and the act being special, it was consequently 
 unconstitutional. "What constitutes corporate powers" said the court 
 "depends largely upon whom the powers in question are conferred. The 
 conferring of certain powers upon an existing corporation may bring them 
 within the designation of 'corporate powers,' while conferring the same duties 
 or functions upon individuals, fails to impart to them the attributes of cor- 
 porate powers/ * 
 
 When powers are conferred upon a corporate body, the presumption is 
 that these are corporate powers. "The fact alone that the General Assembly 
 has undertaken to confer power on a corporate body raises a strong pre- 
 sumption that the power thus sought to be conferred is intended to be cor- 
 porate power, and in the absence of a clear showing to the contrary, the 
 presumption stands." 2 By the act involved in this case, the village councils 
 of Norwood and Pleasant Ridge were authorized to nominate two freehold- 
 ers to act as trustees in making certain improvements, and the measure 
 was held unconstitutional as an attempt to confer corporate power by 
 special act. It was contended by counsel that if corporate power was con- 
 ferred upon any one by this act, it was upon council alone, and not upon 
 the municipality. The court quickly disposed of this contention by declaring 
 that inasmuch as council is the governing body of the corporation, power 
 given in terms to council is in effect given to the municipality. 
 
 The annexation of territory to a city has likewise been held to be an 
 exercise of corporate power, inasmuch as such annexation gives the muni- 
 cipality additional powers of municipal government, police regulation, judi- 
 cial jurisdiction and assessment and taxation. Hence a special act which 
 annexes territory is void. 3 On the other hand, detaching territory from 
 a municipality does not confer corporate power and may be accomplished 
 by special act. 4 
 
 The following are other instances of powers which the Supreme Court 
 has held to be corporate powers, and the acts granting them, being special, 
 were therefore unconstitutional: giving the city council of Cincinnati power 
 to approve the regulations adopted by the trustees of the Cincinnati Com- 
 mercial Hospital; 5 authorizing the city council of Columbus to direct street 
 improvements and issue bonds for same; 6 authorizing the city of Akron 
 through its electors to choose a police judge, and through its mayor and 
 council to appoint a prosecuting attorney and clerk of court; 7 and empower- 
 ing certain villages to dedicate their property to the county for road pur- 
 poses. 8 
 
 1. The State V. Pugh, 43 Ohio State, 98 (110). 
 
 2. 'Commissioners v. The State ex rel., 50 Ohio State, 653 (657). 
 8 The State ex rel. v. Commissioners, 54 Ohio State, 333. 
 
 4.' Metcalf, Auditor, v. The State ex rel., 49 Ohio State, 586. 
 
 5. The State v. The City of Cincinnati, 23 Ohio State, 445. 
 
 6. The State ex rel. v. 'Mitchell, 31 Ohio State, 592. 
 
 7. The State ex rel. v. Anderson, 44 Ohio State, 247. 
 
 8. The State ex rel. v. Commissioners, 54 Ohio State, 333 
 
 35 
 
Classification of Cities Held Proper. 
 
 The manner in which the plan of classification inaugurated in the act 1 
 of May 3, 1852, was subsequently developed into the most elaborate of muni- 
 cipal classification systems has been discussed. 2 The judicial attitude toward 
 classification was first shown in the case of Welker v. Potter and Wife.* 
 In this case the court based its conclusions upon two assumptions: (1) 
 that it is proper for the legislature to classify the cities of the state; and 
 (2) that a law relating to all members of a class is general and not special. 
 The particular act upheld by this decision operated upon "all cities of the 
 first class having a population less than 100,000 at the last federal census."* 
 When originally passed, this act applied only to Cleveland, but at the time 
 of this decision Toledo was also included within the class thus defined. 
 
 In The State v. Powers 8 while it was held that laws regulating the 
 common schools were of a general nature and must have a uniform opera- 
 tion throughout the state, the power of classification was distinctly recog- 
 nized. The court declared: "On subjects concerning which uniformity is 
 required * * * judicious classification and discrimination between classes 
 will not destroy the required uniformity." 
 
 In The State v. Brewster, 6 the court held that the classification pro- 
 vided for in sections 1546-1550, Revised Statutes of Ohio, was authorized 
 by the constitution. The court said: "The validity of that classification 
 has been repeatedly recognized in this court, and the reasons for adhering 
 to that construction of the constitution are cogent and satisfactory. Hence 
 we hold that statutory provisions with respect to any such class are for 
 governmental purposes, general legislation, and not in conflict with Article 
 2, Section 26, nor with Article 13, Section 6 of the constitution." 
 
 The Doctrine of Stare Decisis. 
 
 From this decision on the court based its conclusions in regard to 
 the power of classification upon the doctrine of stare decisis. Thus in the 
 case of The State ex rel. v. Hudson, 7 the court declared: "The peace and 
 prosperity of these cities, and the best interests of the state, require that 
 this system of classification be regarded as stare decisis and settled." 
 Again in the case of The State ex rel. v. Cincinnati, 8 it was stated that 
 classification "has become so firmly established that it is no longer open 
 to controversy." 
 
 Classification Upheld on Ground of Necessity. 
 
 In explaining the reasons which led the court to sanction the legisla- 
 ture's power to classify, Judge Minshall said in The State ex rel. v. Baker 
 
 1. An act to provide for the organization of Cities and Incorporated Villages: 
 50 Ohio Laws, 223. 
 
 2. Supra, pp 24-31. 
 
 3. 18 Ohio State, 85; idem, State v. Graham, 16 Neb. 74; Pritchett v. Stanislaus 
 Co , 73 Cal. 310. For other leading cases on classification, see 70 N. Y. 327; 77 Pa. 
 State, 338; 40 N. Y. Law, 1, 123; 70 111. 388; 94 U. S. 155. 
 
 4. Act of Apr. 5, 1866 (63 Ohio Laws 133). 
 
 5. 38 Ohio State, 54. 
 
 6. 39 Ohio State, 653. 
 
 7. 44 Ohio State, 137. 
 
 8. 52 Ohio State, 419. 
 
 36 
 
et al. 1 "It is not to be supposed that * * * it was intended that 
 the cities and villages of the state were to be governed by one uniform 
 system of laws, applicable alike to each and every city and village in the 
 state. It would be impossible to do so, and adequately provide for all the 
 necessities of the various cities of the state, differing as they do in popula- 
 tion, pursuits and locality; and it is fair to presume that this was as well 
 understood by those who made and adopted the constitution as by those 
 of the present time. * * The power of the General Assembly to classify 
 cities and enact laws applicable to particular classes so formed, cannot now be 
 successfully questioned. It should be regarded as stare decisis." 
 
 Classification Must be Based Upon Reasonable Grounds. 
 
 Where classification legislation has been upheld under constitutional 
 restrictions similar to those found in the Ohio constitution, the courts 
 have generally insisted that the classification adopted by the legislature 
 must be based upon reasonable grounds. Thus in the case of The State 
 v. Hammer, 2 the court says: "The mark of distinction on which the 
 classification is founded must foe such, in the nature of things as will, in 
 some reasonable way at least, account for or justify the restriction of the 
 legislature." 
 
 The same rule is laid down by the Minnesota court in the case of 
 Nichols v. Walter, 3 which declares that "the true practical limitation of 
 the legislative power to classify is that the classification shall be upon 
 some apparent natural reason — some reason suggested by necessity, by 
 such a difference in the situation and circumstances of the subjects placed 
 in different classes as suggests the necessity or propriety of different legis- 
 lation with respect to them." 
 
 What are Proper Bases for Classification? 
 
 In Ohio a similar rule obtains and it will be noted that under this 
 rule, population is not the only proper basis for classification.* Thus in 
 the case of Bronson v. Oberlin the court held it competent for the legis- 
 lature to pass an act affecting "incorporated villages having within their 
 limits a college or university," and authorizing such villages "to provide 
 against the evils resulting from the sale of intoxicating liquors therein." 
 The court said: "The classification must be just and reasonable, and not 
 arbitrary. In the act under consideration the classification is just and rea- 
 sonable. It groups in a class all incorporated villages in the state having 
 within them a college or university. There are many of these and they 
 are located in all sections. * * The value of their property and their 
 greater value as suitable resorts for the education of youth, depend upon 
 such villages being kept free from the unrestrained traffic in intoxicating 
 liquors. These considerations and many others which could be enumerated 
 show the just and substantial character of the classification made in this 
 law, and the wisdom of the General Assembly in making it." 
 
 1. 55 Ohio State, 1. 
 
 2. 42 N. J. Law, 485. 
 
 3. 37 Minn. 264 
 
 4. Contra, Commonwealth v. Patton, 88 Pa. State, 258. Infra, p. 53. 
 
 5. 41 Ohio State, 476. 
 
 37 
 
The doctrine of Bronson v. Oberlin was affirmed in State ex rel. v. 
 Cincinnati 1 where the court declared: "Nor is the power of classification 
 confined to that based upon population * * * It is settled that proper 
 classification may be based upon the peculiar situation of municipalities, 
 their conditions, internal and surrounding, which render different legisla- 
 tion with respect to them necessary, or especially appropriate." 
 
 An illustration of what the court deemed an improper basis of classi- 
 fication was an act* applying only to those cities "in any county contain- 
 ing cities of the first grade of the first class" (Hamilton County) which 
 had failed to construct sidewalks under a previous act. In the case* hold- 
 ing this measure unconstitutional, the court declared: "The requirements 
 for village classification * * * will not be satisfied by adopting any 
 common mark or feature that will serve to classify * * * The objects 
 grouped for classification should be distinguished by characteristics suf- 
 ficiently marked and important to make them a class by themselves. * * * 
 The case at bar presents to us a new and unique classification of villages 
 founded on an incident or characteristic, arbitrary and restrictive, un- 
 reasonable and illusory." 
 
 Classification Must be Operative From Time to Time, So As to Permit 
 Other Cities to Enter Classes Established. 
 
 Population has invariably been considered a proper basis of classi- 
 fication by the Ohio court, provided the plan of classification is so arranged 
 that, without additional legislation, other cities may enter the classes estab- 
 lished. The theory is that under a classification " a law applying to a cer- 
 tain class of cities, fixed by previous legislation, into which other municipal 
 corporations may enter, and from which they may pass into other clasess by 
 increase of population, is not special but general, since the grade of any 
 particular city is not designated by the act, but depends upon its growth in 
 population, as it may, by such growth, pass from one grade or class to 
 another." 4 If, however the act is so worded that it could never apply to 
 more than one city, it is special and unconstitutional. 'On this ground 
 the act reorganizing the city government of Columbus was held uncon- 
 stitutional in State v. Pugh, 6 as the court upon examining the terms of the 
 act, declared it to be "logically and physically impossible that any of the fore- 
 going provisions can ever, in the history of the state, apply to any other 
 city than Columbus." 
 
 For the same reason, the act creating a board of city affairs in cities 
 of the first grade, first class (Cincinnati) was held unconstitutional in The 
 State V. Smith. 6 The act in question required the bond of each member 
 of this board to be approved by the judges of the Superior Court. The 
 Supreme Court held that under existing legislation this measure could not 
 possibly apply to any other city than Cincinnati, since no other city had 
 
 1. 52 Ohio State, 419. 
 
 2. Act of April 16, 1891 (88 Ohio Laws 311). 
 3 Costello v. Wyoming, 49 Ohio State, 202. 
 
 4. The State ex rel. v. Hawkins, 44 Ohio State, 98; see also State ex rel. v. 
 Cincinnati, 52 Ohio State, 419. 
 
 5. 43 Ohio State, 98. 
 
 6. 48 Ohio State, 211. 
 
 38 
 
a Superior Court. The act was therefore adjudged special and uncon- 
 stitutional. 
 
 Other cases which lay down this same principle are: State ex rel. v. 
 Schwab, 1 City of Kenton v. State, 8 and The Pittsburg, Fort Wayne and 
 Chicago Railway Co. v. Martin.' 
 
 Classification May be Valid Though Only One City is Included in a 
 
 Given Class. 
 
 It is not fatal to an act general in its terms that at the time of its 
 passage it affects but one city, provided it is so framed that other cities 
 may in the future enter the class designated, and so come within its opera- 
 tion.* This point is clearly brought out in the leading case of The State 
 v. Pugh,* in which the doctrine of classification is thus stated: "It is 
 not to be urged against legislation, general in form, concerning cities of 
 a designated class and grade, that but one city in the state is within the 
 particular classification at the time of its enactment. 
 
 "Nor is it fatal to the act in question that the belief or intent of the 
 individual members of the General Assembly who voted for the act was that 
 it should apply only to a particular city. * * * Although it is admitted 
 that no other city than Columbus is within, or can before July next, come 
 within the class and grade contemplated by the act, yet, if any other 
 city may, in the future, by virtue of its increase in population and the 
 action of municipal authorities, ripen into a city of the same class and 
 grade, and come within the operation of the act, it is still a law of a 
 general nature and is not invalid, even if it confer corporate powers. 
 
 "On the other hand, if it is clear that no other city in the state can in 
 the future come within its operation without doing violence to the manifest 
 object and purpose of its enactment, and to the clear legislative intent, it 
 is a local and special act, however strongly the form it is made to assume 
 may suggest a general character." 
 
 The same rule is clearly stated both in The State ex rel. v. Smith," and 
 the State ex rel. v. Baker, 7 in the following language: "It is the possibility 
 that other cities may enter a certain grade of a class, and not the certainty 
 that they will, that gives to a law creating the grade a general character." 
 
 Advancement of Cities Not Compulsory. 
 
 Mere increase of population is not alone sufficient to raise a city from 
 one grade or class to another without some affirmative action on the part 
 of the city in question. 8 Unless this action is taken by the municipal 
 authorities, the city continues in its old grade and class — the advancement 
 to a higher grade or class not operating of itself. 9 In the case of Hays 
 
 1. 49 Ohio iState, 229. 
 
 2. 52 Ohio State, 59. 
 
 3. 53 Ohio State, 386. 
 
 4. The same rule is laid down in Wheeler v. Philadelphia, 77 Pa. State, 338. 
 
 5. 4i3 Ohio State, 98. 
 
 6. 48 Ohio State, 211 (218). 
 
 7. 55 Ohio State, 1 (11). 
 
 8. On the subject of advancement, see supra, p. 25, infra, p. 41, 50. 
 
 9. The State ex rel. v. Wall et al., 47 Ohio State, 499. 
 
 39 
 
and Son v. The City of Cleveland, the court declared that "the advancement 
 of a city from the second grade to the first grade of its class could be 
 prevented by the action of the city council declaring it inexpedient to do so." 
 Finally the matter of advancement was placed absolutely under muni- 
 cipal discretion by a statute passed April 15, 1892, 2 which forbade advance- 
 ment "unless the council should first by a two-thirds vote of all members 
 declare a change of grade or class to be expedient." This act was sus- 
 tained in the case of Brady v. The State,* when the court declared: "This 
 amendment worked a complete change in the policy of the law in relation to 
 changing the grades and classes of municipal corporations. Before, the 
 general policy was to have a municipal corporation advance or change its 
 grade, etc., by operation of law alone, unless its council should declare 
 it inexpedient to do so, but by the amendment before noted the policy 
 was changed so that municipalities would remain in their existing grades 
 and classes, notwithstanding a change of population, unless the council by 
 a two-thirds vote of all its members should decide to have it changed." 
 
 Classification Overthrown in Recent Decisions. 
 
 Several years prior to 1902, when the entire system of classification 
 was overthrown, the Supreme Court had indicated its distrust of classifica- 
 tion. Thus in the case of The State ex rel. v. Wall et a/., 4 (decided in 
 1890), the court said: ^Grave doubts may well be entertained as to the 
 constitutionality of this method of classifying cities for the purpose of 
 general legislation." Again in the following years, in the case of The 
 State ex rel. v. Smith et a/., 5 the court said : "It must be conceded that 
 the method of classifying cities for the purpose of legislation has been 
 carried to the very verge of constitutional authority." At the January term 
 of 1896 in the case of The City of Cincinnati v. Steinkamp, Trustee, 6 the 
 court said: "Realizing, as every observer must, the growing tendency to 
 render this limitation on legislative power directory merely, and to treat it 
 as if it were devoid even of moral obligation, by resorting to local legisla- 
 tion upon matters which, if of importance, concern the people of all parts 
 of the state, we are impelled by duty, whenever such acts are brought be- 
 fore us for review and their invalidity appears clear, to so declare." In 
 the case of Hixson v. Burson et a/., 7 the court spoke still more strongly: 
 "The doctrine of classification has nearly wiped out the limitation as to 
 general laws in section six of article thirteen of the constitution, and 
 should itself be overruled, so as to enable us to get back to the whole- 
 some provisions of that section." 
 
 In the case of The City of Cincinnati v. Taft et al., 8 (decided in 1900), 
 the court discussed the doctrine of stare decisis with reference to classifica- 
 tion legislation, and declared that when classification became merely isola- 
 
 1. 55 Ohio State, 117. 
 
 2. 89 Ohio Laws, 302. 
 
 3. 59 Ohio State, 546. 
 
 4. 47 Ohio State, 499. 
 
 5. 48 Ohio State, 211. 
 
 6. 54 Ohio State, 285. 
 
 7. 54 Ohio State, 470. 
 
 8. 63 Ohio State, 141. 
 
 40 
 
tion, stare decisis should not prevail. The particular act in question was 
 sustained under the rule requiring stability of judgments, but the court 
 intimated that similar acts would not be upheld in other cases, and also 
 hinted at its opinion that the classification contained in the constitution 
 was an exclusive one. 
 
 In the year 1901, in the case of The State ex rel. Sheets v. Cowles 
 et al., 1 the court laid down four important propositions: (1) That 
 classification was originally upheld in the belief that ultimately other cities 
 would come under the operation of laws applying to all of a class — instead 
 of which classification has become mere isolation: (2) Since the effect of 
 this doctrine became apparent, the cases sustaining classification have been 
 followed without approval; (3) The doctrine of classification is not to be 
 extended; and (4) An attempted classification in order to evade section 
 26, Article II, of the constitution, is not valid. 
 
 These earlier decisions paved the way for the decision rendered in 1902 
 in the case of The State ex rel. Knisely et al v. Jones et al.? which finally 
 destroyed the whole system of classification. This was a case in mandamus 
 in which the relators, who claimed to be the police commissioners of Toledo 
 under authority of the act of April 27, 1902, demanded possession of the 
 books and property of the police department, held by the defendants, who, 
 denying the validity of said act, claimed to be the legal commissioners. 
 The act in question, following the usual formula of classification legislation, 
 had provided: "All police powers and duties connected with and incident 
 to the appointment, regulation and government of a police force in cities 
 of the third grade of the first class, shall be vested in and exercised by a 
 board of police commissioners, to be appointed by the governor." 
 
 In its opinion holding this law unconstitutional, the court pointed out 
 that the doctrine sustaining the original classification of cities did not sus- 
 tain the classification involved in the present case. 3 Originally, "by an un- 
 varying rule the characteristic of population was made the basis of the 
 classification, and it was made inevitable that every city attaining a popula- 
 tion of twenty thousand should advance and become a city of the first class ; 
 and that every village attaining a population of five thousand should become 
 a city of the second class. * * * Two things were true and they were 
 of the essence of the doctrine. Advancement was by a rule of unvarying ap- 
 plication, and every municipality might become subject to the operation of 
 every statute conferring corporate power upon its own or a higher class. 
 * * * Sections 1546 to 1552 of the Revised Statutes relate exclusively 
 to the subject of classification. The first of these sections now provides 
 that cities of the first class shall be of three grades, and cities of the sec- 
 ond class shall be of eight grades. In the present view grades of classes 
 are but added classes. In these eleven classes the eleven principal cities of 
 the state are isolated, so that an act conferring corporate power upon one 
 of them by classified description, confers it upon no other. They have been 
 isolated under the guise of classification, as their growth promised realiza- 
 tion of the belief which was the foundation of the judicial doctrine of classi- 
 
 1. 64 Ohio State, 162. 
 
 2. 66 Ohio State, 453. 
 
 3. Concerning advancement, see supra, pp. 25, 39. 
 
 41 
 
fication, viz: that their advancement under the unvarying rule of popula- 
 tion would give a wider operation to acts conferring corporate powers. * * * 
 The judicial doctrine of classification was, that all cities having the same 
 characteristic of a substantial equality of population, should have the same 
 corporate power, although another class might be formed upon a sub- 
 stantial difference in population. The classification now provided affords no 
 reason for the belief that it is based upon such substantial difference in 
 population as the judicial doctrine contemplated. * * * The increas- 
 ingly numerous classes of municipalities show that even when a difference 
 in population is made to appear as the basis of classification, the differences 
 in population are so trivial that they cannot be regarded as the real basis. 
 * * * In view of the trivial differences in population, and of the nature 
 of the powers conferred, it appears from such examination, that the present 
 classification cannot be regarded as based upon differences in population, 
 or upon any other real or supposed differences in local requirements. Its 
 real basis is found in the differing views or interests of those who promote 
 legislation for the different municipalities of the state. An intention to do 
 that which would be violative of the organic law should not be imputed up- 
 on mere suspicion. But the body of legislation relating to this subject shows 
 the legislative intent to substitute isolation for classification, so that all the 
 municipalities of the state which are large enough to attract attention shall 
 be denied the protection intended to be afforded by this section of the con- 
 stitution. The provisions of the section could not be more clear or 1 im- 
 perative, and relief from the present confusion of municipal acts and the 
 burdens which they impose would not be afforded by its amendment. Since 
 we cannot admit that legislative power is in its nature illimitable, we must 
 conclude that this provision of the paramount law annuls the acts relating 
 to Cleveland and Toledo, if they confer corporate power. 
 
 "Counsel for the relators, in support of the act relating to Toledo, urge 
 the conclusion that even though the act should be regarded as special, it is 
 not repugnant to this section of the constitution, because, in their view, 
 it does not confer corporate powers. * * * Though it might be dif- 
 ficult to give a conceptual definition of corporate powers which would be 
 found complete and accurate in all cases, an accurate descriptive definition 
 readily occurs, and it is sufficient for present purposes. They are such 
 powers as are usually conferred upon corporations. In the present aspect of 
 the subject they are such powers as are usually conferred upon municipal 
 corporations. They are classified by Judge Dillon as follows: 
 
 " 'If we analyze the complex powers usually conferred upon a municipality 
 in this country we shall discover that these are of two general classes, 
 viz.: (i) Those which relate to health, good government, efficient police, 
 etc., in which all the inhabitants have an equal interest and ought to have 
 an equal voice. (2) Those which directly involve the expenditure of 
 money and especially those relating to local improvements the expense of 
 which ultimately falls upon the property owners.' 
 
 "Surely we shall not err if we regard the phrase 'corporate powers,' as 
 embracing all the powers which, within the observation of those who 
 framed and adopted the constitution, were conferred upon and exercised 
 
 42 
 
by all the cities of the state.* Of these powers perhaps none is more con- 
 spicuously exercised than that of maintaining the public order and enforcing 
 municipal ordinances." 
 
 After fifty years of special legislation, the Supreme Court had at last 
 announced its determination to give effect to the constitutional limitations 
 upon this subject. Under the view of classification and the broad definition 
 of corporate powers in this case, the government of practically every muni- 
 cipality in the state was clearly invalid. The act of March 16, 1891,' organiz- 
 ing the city government of 'Cleveland, was declared unconstitutional upon 
 the same ground as the case just cited, and the decision* was announced 
 on the same day, June 26, 1902. Judgment of ouster was granted against 
 the city officials, but execution of that judgment was suspended until 
 October 2, 1902, so as to give the legislature opportunity to provide new 
 municipal machinery for the cities of the state. 4 
 
 1. Compare with the narrower definition of corporate powers given in The State »► 
 Pugh, 43 Ohio State, 98, supra, p. 34. 
 
 2. 88 Ohio Laws, 105. 
 
 3. The State of Ohio ex rel. The Attorney General v. Beacom et al., 66 Ohio 
 State, 491. 
 
 4. Supra, pp. 30-31. 
 
 43 
 
CHAPTER* IV. 
 
 History of Pennsylvania's Attempt to Prohibit 
 Special Municipal Legislation. 
 
 I.— CONSTITUTIONAL CONVENTION 
 OF 1872-73. 
 
 The present constitution of Pennsylvania was drawn up by a con- 
 vention—the fourth in the history of the state — which assembled at Har- 
 risburg, Nov. 12, 1872. It was composed of 132 members who chose for 
 their president, William M. Meredith of Philadelphia. The organization hav- 
 ing been perfected, standing committees appointed and preliminary business 
 completed, the convention adjourned Nov. 27, 1872, to meet in Philadelphia 
 the following January — having accepted the invitation of the Philadelphia 
 council to meet in that city. The convention convened at Philadelphia 
 Jan. 7, 1873, and continued its sessions until July 15, when a recess was 
 taken until September. Again assembling September 16, the convention 
 continued its sessions until its work was completed on November 3, 1873, 
 -whereupon it adjourned to meet at Harrisburg, December 27, 1873, to 
 receive and count the returns. The vote on the constitution resulted: In 
 favor of adoption, 253,560; against adoption, 109,108; plurality in favor of 
 the constitution, 144,362. 
 
 The convention had been summoned largely in response to a popular 
 demand that certain grave abuses be checked by restricting the power of 
 the state legislature, 1 and throughout its work the convention kept this 
 purpose constantly in view. To those studying municipal government, 
 the chief interest in the convention debates lies in the proposed limitations 
 upon legislative control of cities. Two of the standing committees recom- 
 mended that the general assembly's power of control over municipal cor- 
 porations be limited by constitutional provision in three important respects : 
 (1) By forbidding the general assembly to pass any local or special law 
 regulating the affairs of cities. (2) By providing that the general assembly 
 should not delegate its power over municipal administration to any special 
 commission, private corporation or association. (3) By delimiting a sphere 
 01 local autonomy within which municipal corporations should have the 
 right to pass laws for their own regulation. The first two of these limita- 
 tions were recommended by the committee on legislation, as well as by 
 the committee on cities and city charters; the third limitation was recom- 
 mended only by the latter committee. 
 
 1. See Dickson, Development in Pennsylvania of Constitutional Restraints upon 
 the Power and Procedure of the Legislature, p. 24 et seq. 
 
 44 
 
On the advisability of prohibiting local legislation with reference to> 
 cities, the convention was practically a unit. The committee on legisla- 
 tion recommended the prohibition of special or local laws upon a num- 
 ber of subjects, including measures "regulating the affairs of counties, cities,. 
 townships, wards, boroughs, or school districts." 1 This part of the com- 
 mittee's report prohibiting special or local laws upon some twenty-six dif- 
 ferent subjects was discussed by the convention, section by section;* but 
 the particular section quoted above, prohibiting special or local laws con- 
 cerning cities, was passed without discussion, so unanimous was the senti- 
 ment in its favor. 8 A similar provision was recommended by the com- 
 mittee on cities and city charters, 4 but this part of their report was stricken 
 out, the matter having been already provided for by the adoption of the 
 section as recommended by the committee on legislation. 8 
 
 The strong sentiment in the convention against special legislation is 
 well illustrated by the speech of Mr. Mantor, 6 who pointed out that in the 
 seven years from 1866 to 1872, both inclusive, the legislature had passed 
 475 general laws and 8,775 private acts. 7 Continuing, he said: "But, Mr. 
 Chairman, what a fearful commentary is this on the abuses of special leg- 
 islation ! * * * What sort of justice, I ask, can there be that will allow 
 the law-making power in this state to change at each and every session 
 of the legislature, some act, because a few favored citizens desire it? * * * 
 Necessary legislation is greatly retarded, the expenses to the common- 
 wealth are greatly enlarged, the assumption of such rights degrades the 
 dignity of any legislative body, and withal impairs the efficiency of legisla- 
 tion for good to the whole people. * * * 
 
 "The people all over the state are asking that we shall circumscribe 
 the acts of our legislature by incorporating in this constitution a section 
 like this, that will make all laws general. I am one of those who believe 
 that nearly all objects for legislation can be equally accomplished under 
 general law. * * * It will not be denied that there is a fevered anxiety 
 about the abuses growing out of special privileges. We should meet this 
 matter at the threshold and grapple it with the strong arms of the Con- 
 stitution, only looking to the best interests of the present and the neces- 
 sities of the future." 
 
 Equally unanimous was the sentiment of the convention against the 
 delegation of legislative power to municipal commissions. Accordingly, 
 
 1. Constitution of Pennsylvania, Art. Ill, Sec. 7. 
 
 2. Debates Pennsylvania Constitutional Convention, II, 589-622; V, 248-267; VII, 
 332-436. 
 
 3. Ibid, II. 593. 
 
 4. Debates Penn. Constitutional Convention, II, 35. 
 
 5. Ibid, VI, 225. 
 
 6. Ibid, II, 590. 
 
 7. These acts were distributed as follows: 
 
 Year General laws. Special laws. 
 
 1866'. 50 1096 
 
 1867 86 1392 
 
 1868 73 1150 
 
 1869 77 1276 
 
 1870 54 1276 
 
 1871 81 1353 
 
 1872 ... 54 1232 
 
 Total, 1866-1872 475 8775 
 
 45 
 
with a view to restrict legislative power in this respect, the Committee on 
 Legislation reported a provision as follows: "The General Assembly shall 
 not delegate to any special commission, private corporation or association, 
 any power to make, supervise, or interfere with any municipal improve- 
 ment, money, property or effects whether held in trust or otherwise, or to 
 levy taxes or perform any municipal function whatever." 1 
 
 In discussing this section, Mr. Newlin of Philadelphia pointed out 
 that in that city the legislature had created a commission not a single 
 member of which was elected by the people, and none of whose proceedings 
 could be reviewed by any other body, which had increased the debt of the 
 city by thirteen million dollars." 
 
 An able speech in favor of the provision was made by Mr. Worrell, 
 who declared such a limitation to be one of the most necessary reforms 
 presented for the consideration of the convention. "If we leave with the 
 legislature the power to create commissions, which shall absorb and exercise 
 the proper and legitimate functions of the various municipalities, it would 
 be wise not to attempt to reform municipal governments, and not to take 
 any action affecting cities and city charters. * * * If the legislature be 
 vested with the right of quartering upon a city, without its consent, irresponsi- 
 ble commissions, to exercise any or all of the powers and functions of 
 the municipal departments, it will practically nullify any provision intended 
 to secure intelligent, independent and responsible government of the various 
 political districts of the Commonwealth. No legislation has been more gen- 
 erally condemned than that which restrains a municipality in the exercise of 
 the powers of local government. 
 
 "Mr. Chairman, no local public improvement should be authorized or 
 directed until the municipality has determined that such improvement is 
 needed, and that the condition of the city finances will warrant the proper 
 expenditure on that account; and unless these considerations are determined 
 affirmatively by the municipality, the people should not be subjected to bur- 
 densome taxation by the legislature or any other body, for the purpose 
 of erecting unneeded improvements, or those which the public treasury will 
 not justify." 3 
 
 Mr. Gowen of Philadelphia declared himself in favor of going even 
 further than was proposed by the committee, and accordingly presented an 
 amendment making it the duty of the Legislature, in all cases where such 
 commissions had been created, to provide for vesting all such power directly 
 in the local authorities. 4 This amendment was rejected and the original 
 provision was then adopted. 
 
 One of the most interesting features of the convention was the unsuc- 
 cessful effort made to secure the adoption of a constitutional provision 
 delimiting a sphere of local autonomy within which municipalities should be 
 free from legislative interference. Such a provision was recommended in 
 the following terms by the committee on cities and city charters in the 
 latter part of Section 4 of its report: "Every municipality shall have 
 
 1. Constitution of Pennsylvania, Art. HI, Sec. 20. 
 
 2. Debates, II, 697. 
 
 3. Debates, II, 698 et seq. 
 
 4. Debates, II, 699. 
 
 46 
 
ower to pass laws for its own regulation not repugnant to the Constitu- 
 ion of the United States or of the Commonwealth." 1 
 
 Mr. Dallas of Philadelphia proposed to amend this section by inserting 
 le word "exclusive" so that the provision would read, "Every municipality 
 hall have exclusive power," etc. Supporting his amendment, Mr. Dallas 
 aid : "The purpose I had in view in proposing to insert the word 'exclusive' 
 r as simply to give to the local authorities of a city the exclusive power to 
 overn its own internal affairs, my view being that for every local com- 
 munity there should be local self-government in all those matters which 
 ffect only the locality meaning thereby their interior regulations." 2 
 
 Similar views were voiced by Mr. Littleton of Philadelphia who de- 
 iared: "I hope that the Convention will see that there is some propriety 
 1 giving the local authorities of large cities absolute control over matters 
 urely local in their nature. Why should we have to go to the Legislature 
 nd ask acts of Assembly to be voted upon by men living two or three 
 undred miles away from a city like Philadelphia to regulate its local af- 
 iirs? Of course, those members are not able to know the particular 
 eeds and wants of the city."* 
 
 The first speaker in opposition to the amendment was Mr. Armstrong of 
 /illiamsport who stated that if this were a question that affected Phila- 
 elphia alone he would be disposed to follow the judgment of the delegates 
 ho represented that city; but that he believed it would be highly danger- 
 us to extend such a power to cities all over the state.* 
 
 Mr. Ewing of Pittsburg also declared himself opposed to the provision 
 n the ground that it was an unnecessary restriction upon the legislature's 
 ower, and a dangerous grant of power to city councils. "We may well 
 ?ave the government of the cities to be determined by the Legislature under 
 le restrictions which we have already laid down for the Legislature. We 
 ave provided that they shall only pass general laws ; we have hedged in 
 leir power and authority and their manner of passing laws, so that I think 
 re can fairly trust them to delegate to the municipal governments the nec- 
 ssary power to regulate their own internal affairs. * * * I suppose if 
 re finally pass the article on Legislation, which has already passed on sec- 
 nd reading, it will be utterly impossible for the Legislature to enforce the 
 ind of acts that have been complained of — local and special laws affecting 
 articular localities in the different cities." 
 
 Continuing, Mr. Ewing further urged that councils were unworthy to be 
 ntrusted with so great a power. "As a matter of experience in our region 
 f the state and in our city, the very worst legislation we have ever had 
 -i relation to the city has been that which was asked and demanded of the 
 ,egislature by the city council — I mean special local legislation — and fre- 
 uently the Legislature has stood guard between the people and the city 
 Quncils, and has refused to pass legislation that was asked by the city coun- 
 ils and which would have been very injurious to the people of the city." 5 
 
 47 
 
 1. 
 
 Debates, 
 
 II, 
 
 35. 
 
 2. 
 
 Debates, 
 
 VI, 
 
 227. 
 
 8. 
 
 Deibates, 
 
 VI, 
 
 228. 
 
 4. 
 
 Debates, 
 
 VI, 
 
 228. 
 
 5. 
 
 Debates, 
 
 VI, 
 
 229. 
 
This speech was ably answered by Mr. Bardsley of Philadelphia, who 
 urged that city councils could properly be clothed with the proposed 
 powers. "The members of the city councils are the direct representatives 
 of the people of the city. They come from their own neighborhoods; they 
 come there elected by their immediate friends and constituents; and the 
 power is held by the people once every year to turn out of office those 
 who will not study the interests of the whole community. The experience 
 of the cities with their members of the Legislature is such as to make the 
 people earnest and anxious in the desire that this Convention shall make a 
 ladical reform in the particular now under consideration. What we ask 
 in this city, for example, is that we shall be allowed to pass such laws as 
 will best conduce to the comfort and prosperity of our people* * * We 
 ask that we may be allowed to use our own judgment, that we may 
 be allowed to be instructed by our own people as to what 
 legislation is needed and required for the cities, and I hope that this Con- 
 vention will approve and endorse the section now under consideration." 1 
 
 Mr. Minor of Titusville declared the proposed provision unnecessary, 
 since by prohibiting special acts for cities, the evil of legislative inter- 
 ference had been removed. Further, he believed that councils could not be 
 safely trusted with such large powers of local autonomy. "It is wrong 
 for us for all time to * * * say that there shall be vested in the coun- 
 cils exclusive, paramount power, perhaps even beyond the courts them- 
 selves. Councils, knowing that they have the power, will use it. Power 
 possessed draws to itself power. There is always an inducement to abuse 
 when you cannot appeal to any other authority to check it." 2 
 
 Mr. Biddle, the only Philadelphia delegate who opposed the provision, 
 said: "I agree with the gentleman from Crawford (Mr. Minor) * * * 
 that there might be a great many things under the generality of this 
 language attempted by the municipal governments which would be wrong to 
 the last degree." 3 
 
 The debate closed with the speech of Mr. De France opposing the pro- 
 vision. "If you make the power exclusive, the Legislature could not annul 
 any act of the city council * * * because the cities would have the ex- 
 clusive power of governing themselves just as much as the State of 
 Pennsylvania has the power of governing herself. 
 
 "Although I want the cities to have some power in the first place, I 
 believe the city councils would perhaps commit as great outrages as the 
 Legislature and perhaps more if they had the exclusive power of deter- 
 mining how they should be governed." 4 
 
 The amendment to the provision, as well as the committee's original 
 recommendation, was rejected by the convention, and thus ended the 
 attempt to delimit, by constitutional provision, a sphere of local autonomy. 
 Subsequent events have proven that those who opposed this section were 
 mistaken in thinking that by reason of Article III, Section 7, legislative inter- 
 ference in the affairs of a particular city would be thenceforth impossible. 
 
 1. Debates, VI, 230. 
 
 2. Debates, VI, 231. 
 
 3. Debates, VI, 231. 
 
 4. Debates, VI, 231. 
 
 48 
 
Whether they .were right in their other argument that such large powers 
 over local affairs could not be safely entrusted to councils has never, in 
 Pennsylvania been put to the test of experience. 1 
 
 IL— LEGISLATIVE CLASSIFICATION OF 
 MUNICIPALITIES. 
 
 The first legislature meeting under the new constitution proceeded up- 
 on the theory that it had power to classify the cities of the state, and 
 that a law applying to all the members of a class (even though such class 
 included but one city) was not a special, but a general law, 2 and hence not 
 in violation of Article III, Section 7. Accordingly the Act of May 23, 1874, 
 was passed, 3 dividing the cities of the state into three classes. (1) Those 
 containing a population of over 300,000; (2) those with a population over 
 100,000 and less than 300,000; (3) those with a population exceeding 10,000 
 and less than 100,000. The act then specifies, at considerable length, the 
 powers and organization of the municipal government of each class. 
 
 This act was upheld by the Supreme Court of the state in the leading 
 case of Wheeler v. Philadelphia*. The decision in this case was based upon 
 three propositions, as follows : 
 
 (1.) The power of classification existed at the time of the adoption of 
 the constitution. It had been exercised by the legislature from the founda- 
 tion of the government, and its continued exercise is necessary to the pub- 
 lic welfare. Hence "the true question is, not whether classification is 
 authorized by the terms of the constitution, but whether it is expressly pro- 
 hibited." The constitution nowhere contains any such prohibition, but on the 
 contrary, the power of classification for certain purposes is expressly recog- 
 nized. 
 
 (2.) The Act of 1874 contemplates that other cities by increase of popu- 
 lation will enter the higher classes, and therefore it is not local or special. 
 
 (3.) If classification be not allowed, either the large cities would lose 
 needed legislation, or the small ones be overburdened by that adopted. 5 
 
 The classification of cities established by the Act of 1874 continued in 
 force for two years, or until the passage of the Act of April nth, 1876, 6 
 dividing the cities of the state into five classes as follows: 
 
 Class. Population. 
 
 1 300,000 or more 
 
 II 100,000 — 300,000 
 
 HI 30,000 — 100,000 
 
 IV 12,000 — 30,000 
 
 V Less than 12,000 
 
 1. For the states which have adopted constitutional provisions permitting cities to 
 frame their own charters, see supra, p. 16. 
 
 2. The generally accepted doctrine of classification; see supra, p. 36. 
 
 3. Pa. Laws, 230. 
 
 4. 77 Pa. St. 338. 
 
 5. For a further discussion of this case see infra, p. 54. 
 
 6. Pa. Laws, 20. 
 
 49 
 
The classification established by this act continued in force for eleven 
 years, or until the act of May 24th, 1887, 1 classifying the cities of the state 
 as follows : 
 
 Class. Population. 
 
 I 600,000 or more 
 
 II 150,000 — 600,000 
 
 III 75,000—150,000 
 
 IV 45,000 — 75,000 
 
 V 20,000 — 45,000 
 
 VI 10,000 — 20,000 
 
 VII All cities having less than 10,000 
 
 Both of the acts last named, that of April nth, 1876, and of May 24, 
 1887, were declared unconstitutional by the Supreme Court in Ayars' Ap- 
 peal, 8 as violating Section 7 of Article III of the Constitution. 3 
 
 The above decision, rendered in 1888, necessitated a new classification 
 act (the fourth since the adoption of the constitution), and this was accord- 
 ingly passed May 8, 1880. 4 This act divided the cities of Pennsylvania into 
 three classes, as follows: 
 
 Class. Population. 
 
 1 600,000 or more 
 
 II 100,000 — 600,000 
 
 III Less than 100,000 
 
 The act further provided that the population of a city should be de- 
 termined in accordance with the last Federal census, and made it the duty 
 of the governor to certify when a city should be entitled to advance, such 
 advance then being obligatory upon the city. 5 This act was sustained by 
 the Supreme Court in the case of Harris' Appeal. 8 
 
 Ill— DECISIONS OF THE SUPREME COURT. 
 This Provision to be So Construed as to Prevent the Mischief it Was 
 Designed to Remedy. 
 
 In interpreting the seventh section of Article III, the court has con- 
 sidered the causes which led to its adoption, and has then aimed to give 
 it such liberal construction as would prevent the mischief which it was 
 designed to remedy. Thus in Ayars' Appeal, 7 Sterrett, J., said : "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 Pittsburg, and for other municipal divisions of the state, about the same 
 proportion. This was by no means exceptional. The pernicious system of 
 
 1. Pa. Laws, 204. 
 
 2. 12>2 Pa. St. 2m. 
 
 3. Discussion of this case, infra, p. 56. 
 
 4. Pa. Laws, 133. 
 
 5. Contrary to the rule in Ohio, where advancement was optional with the city. 
 Supra, p. 39. 
 
 6. 160 Pa. St. 494. 
 
 7. 122 Pa. St. 266. 
 
 50 
 
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 
 promise any hope of relief. Doubtless, it was a proper appreciation of the 
 magnitude of these evils as much as anything else that called into exist- 
 ence the convention that framed the present constitution, and induced its 
 adoption by an overwhelming vote. One of the manifest objects of that in- 
 strument 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 seventh section of 
 Article III, and kindred provisions, without reaching that conclusion. That 
 section contains a schedule of nearly fifty prolific subjects of previous 
 special and local legislation, and ordains, '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, 'No local or special bill shall be passed unless notice 
 of the intention to apply therefor shall have been published/ etc. * * * 
 
 "The purpose of the provision under consideration was not to limit 
 legislation, but merely to prohibit doing, by local or special laws, that which 
 can be accomplished by general laws. 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." 1 
 
 In harmony with the foregoing is the broad construction which the court 
 has placed upon the word "affairs" as used in section seven. Thus in Mor- 
 rison v. Bachert, 2 Paxson, J., said: "It was held by the learned judge of the 
 court below, however, that an Act regulating the fees of the prothonotary 
 or other county officers was not a' law 'regulating the affairs of counties/ 
 and he defines the 'affairs of counties' to be such 'as concern counties in 
 their governmental and corporate capacity.' This will not do. It is 
 too narrow a construction of the constitution. That instrument 
 was intended for the benefit of the people, and must receive a liberal 
 construction. 'A constitution is not to receive a technical construc- 
 tion, like a common-law instrument or statute. It is to be interpreted so as 
 to carry out the great principles of government, and not to defeat them:' 
 Commonwealth v. Clark; 7 W. and S., 127. When it speaks of the affairs 
 of a county, it means such affairs as affect the people of that county."* 
 
 Limitations Upon Local and Special Legislation Apply Only to General 
 
 Assembly. 
 
 It should be noted that the constitutional restrictions upon local and 
 special legislation govern the General Assembly only, and do not constitute 
 limitations upon the legislative power of a municipality. A municipal ordin- 
 ance is not a law within the meaning of the constitutional limitation upon 
 
 1. See also Morrison v. Bachert, 112 Pa. St. 322; Scranton School District's Ap- 
 peal, 113 Pa. St. 176; City of Scranton v. Silkman, 113 Pa. St. 191. 
 
 2. 112 Pa. St. 322. 
 
 3. See also Montgomery v. Commonwealth, 91 Pa. St. 125. 
 
 51 
 
the passing of local and special laws. In Klingler v. Beckel, 1 the question 
 was as to the validity of a borough ordinance prohibiting the erection of 
 wooden buildings within certain prescribed limits, enacted under the pro- 
 visions of the Act of June 3, 1885.* The court below held that the ordin- 
 ance was invalid because it prohibited the erection of such buildings in only 
 a portion of the borough, and asserted that under the provision of the con- 
 stitution prohibiting special or local legislation, it was beyond the power 
 of the council as it was beyond the power of the Legislature to legislate for 
 only a portion of the borough. This decision was reversed by the Supreme 
 Court, and Paxson, J., declared: "It by no means follows that when the 
 Legislature by a general law confers upon a borough the power of regulating 
 its local affairs, it may not do so by ordinances that are special in their 
 character. The object of the constitutional provision was clearly to prevent 
 the Legislature from interfering in local affairs by means of special legis- 
 lation, and, if the town councils of cities and boroughs cannot regulate them, 
 they are in a bad way indeed. The principle contended for would prevent the 
 town councils of a city or borough from passing an ordinance to pave one 
 street, unless it also provided for the paving of all the other streets within the 
 limits of the municipality. In Baldwin v. The City of Philadelphia, 99 Pa. 
 [64, it was decided than an ordinance of the city was not a 'law* 
 within the meaning of that clause of the constitution which declares that 
 'no law shall extend the term of any public officer, or increase or diminish 
 his salary or emoluments after his election or appointment.' The reasoning 
 of that case applies equally to that section of the constitution prohibiting 
 special legislation."* 
 
 This Provision is Prospective. 
 
 This clause of Section 7, Article III, the Supreme Court has declared 
 to be prospective in its operation; and hence it does not repeal local or 
 special acts passed before the constitution went into operation. 4 Nor is 
 an act. otherwise constitutional, rendered invalid by a provision that it shall 
 not affect prior local or special ad 
 
 What is a Special or Local Law? 
 
 From the doctrines laid down by the court, a general law may be de- 
 fined as one which applies to, and operates uniformly upon, all members of 
 any class of persons, places or things. A special law, on the other hand, 
 is one applicable to less than a class of subjects; that is, it relates to particular 
 persons, places or things. 8 A local law is one that applies to less than a 
 class of places: that is, it is a special law of local application. 7 Thus laws 
 
 1. 117 Pa. St. 826. 
 
 2. Pa. L. 55. 
 
 3. See also Norristown V, Citizens' Passenger Railway Company, 148 Pa. St. 
 McCormiek Countv. 150 Pa. St. 191. 
 
 4. Harrison V. Couitriffht, 4 Luz. L. 'Roc. W7; Countv Of Allegheny V, Gib- 
 Son ami COy M Pa. St. 397; Countv of Crawford r. Nash, 99 Pa. St. 253; Comm. P. 
 Ralph. Ill Pa. St. 865. „, , 
 
 ;.. Brail V. Philippi. 117 Pa. St. 226; Comm. V, Sellers. ISO Ta. St. 32; Chelten- 
 ham Twp. Road, 140 Pa. St. 136; Lackawanna Twp. Harris' Appeal, 160 Pa St. 494. 
 This distinction is clearly made in Wheeler r. Philadelphia, 77 Pa. St. 388. 
 The principle of classification as affecting the character of a law is discussed 
 on p. 49 ct seq. 
 
 52 
 
changing the name of a certain person, or granting a divorce, or creating a 
 particular corporation, are instances of special laws; while acts regulating 
 the affairs of Pittsburg, or changing the location of the county seat, are 
 instances of local laws, (i. e., special laws of local application). 
 
 This distinction between 'general acts on the one hand, and special and 
 local acts on the other, is clearly set forth in many cases, and is well 
 stated by Williams, J., in Weinman v. Passenger Railway Company: 1 "The 
 subject of this statute is, therefore, street railway companies, which is a sub- 
 ject for general legislation, while the statute professes to deal only with 
 a limited number of these railways, and these are selected by reference to 
 their location in certain cities. Under the guise of a general law, we have 
 here one which is special, because it relates to a few members of the general 
 class of corporations known as street railway companies, and local because 
 its operations are confined to particular localities, viz., cities of the second 
 and third class. 
 
 What Is a Proper Classification Ultimately a Judicial Question. 
 
 While the subject of classification is legislative in the first instance, 
 and the presumption is that the legislative classification is valid and based 
 upon sufficient and proper grounds, yet the ultimate decision as to the con- 
 situtionality thereof is for the court. 2 This principle is clearly stated by Sterrett, 
 J., in Ayars' Appeal, 8 as follows : "It has also been suggested that the ques- 
 tion 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, in- 
 tended to invest their law makers with judicial power, and thus make them 
 final arbitrators of the validity of their own act, 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 these 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." 
 
 Proper Basis for Classification. 
 
 According to the doctrine laid down by the court in Commonwealth v. 
 Patton, 4 population is the only proper basis for the classification of cities 
 or counties. "The moment we resort to geographical distinctions we enter 
 the domain of special legislation, for the reason that such classification 
 
 1. 118 Pa. St. 192. 
 
 2. Same rule obtains in Ohio; supra, p. 31. 
 
 3. 122 Pa. St. 266. 
 
 4. 88 Pa. St. 258. 
 
 S3 
 
operates upon certain cities or counties to the perpetual exclusion of all 
 others." 
 
 It will be noted that the language of this decision, especially the declara- 
 tion that "there can be no proper classification of cities or counties except by 
 population" is broader than the particular point decided in this case, which 
 is, that geographical location is not a proper basis for classification. 1 
 Whether there may be other proper basis for classification besides popula- 
 tion, 2 is not settled by the decision in this case, the language used by the 
 learned court to the contrary notwithstanding. 
 
 Classification May be Valid Though Only One City be Included in a 
 
 Given Class. 
 
 The Pennsylvania court agrees with the Supreme Court of Ohio in hold- 
 ing that a classification of cities, otherwise proper, is not rendered invalid 
 by reason of the fact that but one city is included in a given class. 8 This 
 principle was clearly stated in the leading case of Wheeler v. Philadelphia, 4 
 which involved the validity of the Act of May 23, 1874. This act divided 
 the cities of the state into three classes, Philadelphia being the only 
 city included in the first class. In rendering this decision, Paxson, 
 J., said: "But it is contended, that even if the right to classify exists, the 
 exercise of it by the Legislature, in this instance, is in violation of the con- 
 stitution, for the reason that there is but one city in the state with a popula- 
 tion exceeding 300,000; that to form a class containing but one city is 
 in point of fact legislating for that one city, to the exclusion of all others, 
 and constitutes the local and special legislation prohibited by the constitution. 
 This argument is plausible but unsound. * * * 
 
 "Legislation is not only intended 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. The first man, Adam, 
 was as distinctly a class when the breath of life was breathed into him 
 as at any subsequent period. The word is used not to designate numbers, 
 but a rank or order of persons or things; in society it is used to indicate 
 equality, or persons distinguished by common characteristics, as the trad- 
 ing classes; the laboring classes; in science it is a division or arrangement, 
 containing the subordinate divisions of order, genius and species." 8 
 
 1. Contra, The State v. Hammer, 42 N. J. L. 485. 
 
 2. In Ohio other bases than population have been held valid; supra, p. 37. 
 
 3. 'The State v. Pugh, 43 Ohio St. 98; supra, p. 39 
 
 4. 77 Pa. St. 338; followed in Kilgore v. Magee, 85 Pa. St. 401; Nason v. Erie 
 County Poor Directors, 126 Pa. St. 445; Whitney v. Pittsburg, 138 Pa. St. 427. 
 
 5. For a further account of this case, see supra, p. 49. 
 
 54 
 
Classification Must Not be Pretended, False Nor Evasive. 
 
 The classification of cities upon which an act is based must be a real 
 classification, not a pretended or evasive one. A good example of sham 
 classification is afforded by the Act of April 18, 1878 (P. L., 29), entitled 
 "An act to provide for the holding of courts in certain cities of this Common- 
 wealth." By this act it was enacted "that in all counties of this Common- 
 wealth where there is a population of more than 60,000 inhabitants, and in 
 which there shall be any city incorporated at the time of the passage of this 
 Act with a population exceeding 8,000 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 * * * to make 
 an order providing for the holding of one week of court or more * * * 
 for the trial of criminal or civil cases in the said city." 
 
 The court held this act invalid as a local law under a false and pretend- 
 ed classification, and Paxson, J., after quoting the above, said: "This is 
 classification run mad. Why not say all counties named Crawford, with a 
 population exceeding 6o,ooo, that contain a city called Titusville, with a 
 population of over 8,000, and situate twenty-seven miles from the county 
 seat? Or all counties with a population over 60,000, watered by a certain 
 river, or bounded by a certain mountain?" 1 
 
 This act in modified form was again passed by the Assembly on June 
 12, 1879, 2 but was again held unconstitutional by the court as being a mere 
 evasion of the constitution. 8 
 
 The Act of June 8, 1891, 4 entitled "An Act to prevent the pollution of 
 the water of streams supplying cities of this Commonwealth," declared it to 
 be unlawful "hereafter to establish any cemetery upon lands located within 
 one mile from any city of this Commonwealth, the drainage from which 
 empties or passes into any stream from which the supply of water is obtain- 
 ed." This act the court held to be invalid, and Williams, J., said: "If 
 * * * we look into its provisions we shall find that they do not relate 
 to cities of the first class or any other class. They relate distinctly and 
 clearly to a strip of territory lying on the outside of the city of Philadelphia, 
 having a breadth of one mile, and a drainage into any stream from which 
 the water supply of the city is obtained. No municipal power, or duty, or 
 officer is the subject of legislative regulation by this act, but it lays its 
 hand on cemeteries and forbids their establishment within this narrow strip 
 of territory. * * * This act does not undertake to deal with cemeteries 
 within cities of the first class, but with those that are wholly outside of 
 them. It does not attempt to deal with all cemeteries that are outside, but 
 only with those that are within one mile from the city lines. * * * It 
 would be difficult to imagine a better example of a law both local and 
 special than this." 5 
 
 The Act of June 8, 1893, 6 authorizing the "taking of certain public 
 
 1. Commonwealth v. Patton, 88 Pa. St. 258. 
 
 2. P. L. 174. 
 
 3. Scowden's Appeal, 96 Pa. St. 422. 
 
 4. P. L,. 216. 
 
 5. Philadelphia v. Westminster Cemetery Co., 162 Pa. St. 105. 
 
 6. P. L. 42. 
 
 55 
 
burial places, under certain circumstances, for places of common school 
 education," was also adjudged invalid by the Supreme Court. In this case 
 the court said: "It is well known that this Act of Assembly was prepared 
 and its passage procured for this particular case, to enable this school board 
 to take this burial ground, and that this was done after a special law 
 avowedly for the same purpose had been vetoed by the Governor. It is 
 special legislation in the guise of a general law— the most specious and vic- 
 ious form that special legislation can assume." 1 
 
 An act is local, notwithstanding its general form, provided it relates 
 only to a particular building in a certain city. Thus, the Act of May 24, 
 1893, entitled "An act to abolish commissioners of public buildings, and to 
 place all public buildings heretofore under the control of such commissioners, 
 under the control of the department of public works in cities of the first 
 class," is a local act. It applies solely to Philadelphia, and to but one 
 particular building in that city, and regulates the affairs of that city by 
 placing a particular building in the control of the department of public 
 works. 2 
 
 Classification Must Not be Unnecessary Nor Excessive. 
 
 Classification was originally sustained on the ground of necessity, 3 and 
 is limited thereby: hence if the legislative classification appears to the court 
 to be unnecessary or excessive, the classification will be declared invalid. 
 The application of this principle marks the parting of the ways between the 
 Ohio and the Pennsylvania courts. Both courts originally sustained the 
 classification of cities on the ground of necessity, and declared the court to 
 be the final judge as to the existence of such necessity; but while the Ohio 
 court allowed the legislature large discretion in the creation of additional 
 classes (permitting the two original classes to be increased to eleven), the 
 Pennsylvania court has refused to allow the original three-class plan to be 
 extended. 
 
 The leading case in Pennsylvania on this point is Ayar's Appeal.* In 
 this case, the Act of May 24, 1887, 8 dividing the cities of the state into seven 
 classes, 6 and providing for the incorporation and government of cities of 
 the fourth, fifth, sixth, and seventh classes, was held invalid as being an un- 
 necessary and excessive classification. For the same reason this decision 
 also declared unconstitutional the Act of April 11, 1876/ (amending the 
 original Act of May 23, 1874 8 ), and increasing the number of classes of cities 
 
 to five. 9 
 
 In this case the court reviewed the decision in the case of Wheeler v. 
 
 Philadelphia 10 and Kilgore v. Magee, 11 and pointed out that in these cases the 
 
 1. City of York School District's Appeal, 169 Pa. St. 70. 
 
 2. Perkins v. Philadelphia, 156 Pa. St. 554. 
 
 3. Wheeler v. Philadelphia, 77 Pa. St. 338. 
 
 4. 122 Pa. St. 266; followed in Shoemaker V. Harrisburg, 122 Pa. St. 285; Berg- 
 haus, v. Harrisburg, 122 Pa. St. 289; Comm. v. Smoulter, 126 Pa. St. 137; Coram, v. 
 Miller, 126 Pa. St. 137; Meadville v. Dickson, 129 Pa. St. 1. 
 
 5. P. L. 204. 
 
 6. See supra, p. 50. 
 
 7. P. Iy. 20. 
 
 8. P. L. 230; supra, p. 49. 
 
 9. See supra, p. 49. 
 
 10. 77 Pa. St. 338. 
 
 11. 85 Pa. St. 401. 
 
 56 
 
original classification act dividing cities into three classes had been sus- 
 tained on the ground of necessity and was limited thereby. Continuing, 
 Sterrett, J., said: "Subsequent legislation clearly indicates that the scope 
 of the decision 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. Re- 
 peated and pointed admonitions of that fact were given in subsequent cases 
 involving the general subject. * * * 
 
 "The underlying principle of all the cases is that classification, with 
 the view of legislating for either class separately, is essentially unconstitu- 
 tional, unless a necessity therefor exists, — a necessity springing from mani- 
 fest peculiarities, clearly distinguishing those of one class from each of the 
 other classes, and imperatively demanding legislation for each class, separ- 
 ately, that would be useless and detrimental to the others. Laws enacted in 
 pursuance of such classification and for such purposes, are, properly speak- 
 ing, 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 characterized as either local or special. 
 
 "The Act of 1874 dividing the cities of the state into three classes 
 * * * was sustained as to such of its principles 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 ex- 
 isting 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 the 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 afterward to seven, and if the vicious prin- 
 ciple 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 classification is evasion 
 of the constitutional limitations, and as such it ought to be unhesitatingly 
 condemned." 
 
 Classification Must Not Work Exclusion. 
 
 A valid classification act must not be so framed as to exclude from its 
 provisions certain cities or counties, but it must be operative from time to 
 time so that it may be possible for other cities or counties, by increase of 
 population, to come within its operation. 1 It is for this reason that the 
 courts, by the great weight of authority, have declared a classification based 
 upon geographical conditions to be improper ; for geographical conditions be- 
 ing permanent, an act which is special in character at the beginning of its 
 
 1. The State v. Pugh, 43 Ohio St. 98; Topeka v. Gillette, 32 Kansas, 431. 
 
 57 
 
application, must always remain so. 1 For the same reason an act containing: 
 a proviso that it shall not apply to counties having over 200,000 inhabitants 
 is local, because by this proviso -certain counties are permanently excluded 
 from the operation of the act. In this case, 2 Mercer, J., said: "Within 
 reasonable limits and for some purposes classification is allowable. It has 
 been sustained on the basis of population of counties on the assumption that 
 those having a small population may ultimately have one much larger. 
 Here the larger are excluded. We cannot assume that their population will 
 ever be reduced to less than the number named. They are, therefore, practi- 
 cally and permanently excluded by the intent and purpose of this act, which 
 is special in its terms and local in its effect. 3 
 
 Legislation for Cities by Classes Must be Confined to Municipal Matters 
 
 Proper. 
 
 As already pointed out,* the three-class division of the cities of the 
 state is constitutional, and a law relating to all the members of a class is 
 general and not special; but, to be valid, such a law must pertain to a 
 municipal matter. Classification having been upheld on the ground of ne- 
 cessity and in order to permit legislation to be adapted to the diverse muni- 
 cipal needs of the cities of the state, it naturally follows that all legislation 
 based upon such classification must be within the purposes of the classifica- 
 tion: that is, it must relate to municipal affairs. "Classification of cities 
 and laws confined thereto are permissible only in matters relating to their 
 municipal government, but the rights of persons and property must be secured 
 by general laws, which must be uniform and in force everywhere through- 
 out the State." 5 
 
 The first decision based upon this distinction was that of Weinman v. 
 Passenger Railway Company, 8 involving the Act of March 19, 1879, 7 which 
 provided for the incorporation and government of street railway companies 
 in cities of the second and third classes. This act was held invalid as being 
 both local and special. In rendering the opinion, Williams, J., said: "It 
 is urged that this statute is sustainable under the decision of this court 
 recognizing the power of the Legislature to classify the cities of the Com- 
 monwealth for purposes of municipal government, but those cases rest upon 
 a very different principle from that involved in the present case. * * * 
 It has been found desirable to divide cities into classes upon the basis of 
 their population. * * * Each of these classes requires legislation peculiar 
 to itself, but such legislation must be applicable to all members of the class 
 to which it relates, and must be directed to the existence and regulation of 
 
 1. Commonwealth v. Patton, 88 Pa. St. 258; supra, p. 53. 
 
 2. Davis V. Clark, 106 Pa. St. 377. 
 
 3. Same principle laid down in Monroe v. Luzerne County, 103 Pa. St. 278; Lu- 
 zerne County v. Glennon, 109 Pa. St. 564; McCarty v. Commonwwealth, 110 Pa. St. 
 243; Morrison v. Bachert, 112 Pa. St. 322; City of Scranton v. Silkman, 113 Pa. St- 
 191; Commonwealth v. Wyman, 137 Pa. St. 508; Rymer v. Luzerne County, 142 Pa. 
 St. 108; Guldin v. Schuylkill County, 149 Pa, St. 210; Commonwealth v. Macferron, 152 
 Pa St 244; Perkins v. Philadelphia, 156 Pa St.. 554; Philadelphia v. Westminster 
 Cemetery Co., 162 Pa. St. 105; York City School Districts' Appeal, 169 Pa. St. 70. 
 
 4. 'Supra, p. 49. 
 
 5. Philadelphia v. Haddington Church, 115 Pa. St. 291. 
 
 6. 118 Pa. St. 192; supra, p. 53. 
 
 7. P. L. 9. 
 
 58 
 
municipal powers and to matters of local government. The supposed classi- 
 fication in the Act of 1879 is of a very different character. 
 
 "The Act provides for the incorporation and government of street rail- 
 way companies, but it does not affect all such companies. It selects such 
 companies as may be located in cities of the second and third class, and. 
 makes special provision for them, while all other street railway companies 
 remain under the operation of the general law. This is just what the con- 
 stitution declares shall not be done." 
 
 Another importa/nt case upon this point is In re Ruan Street. 1 This 
 case involved the Act of May 6, 1887, 2 which related to the improvement of 
 streets in cities of the first class, providing for the assessment and payment 
 of damages and benefits arising therefrom, etc. This act was held invalid 
 (except as to the first two sections), on the ground that it did not relate to 
 municipal purposes within the principle justifying the classification of cities. 
 In this -decision the court declared : "We come now to inquire what legisla- 
 tion remains forbidden to cities, notwithstanding classification. I reply that 
 all legislation not relating to the exercise of corporate powers, or to cor- 
 porate officers and their powers and duties, is unauthorized by classification. 
 * * * For example, there cannot be one rate of interest in cities of the 
 first class, another in those of the second or third, and still another for the 
 rest of the State, but the rate, when fixed by law, must apply to all parts and 
 divisions of the State alike. The same thing is true of the law of descent, 
 and so on, through the entire list of subjects upon which local and special 
 legislation is forbidden. If classification can relieve against the constitu- 
 tional prohibition as to one of these subjects, it can relieve as to all." 
 
 Again, in Shaaber v. Reading, 8 the decision in Ruan street was ex- 
 plained as follows: "What was denied was the right of the Legislature to 
 make the classification of cities the basis of legislation for them on sub- 
 jects not relating to the organization or administration of their municipal 
 governments, but to questions of public concern, such as the forms of pro- 
 cedure in the courts of the State; the rate of interest; exemptions of prop- 
 erty from levy and sale on legal process ; the mode of proceeding to secure a 
 citizen compensation for an entry on his property for public use by virtue 
 of the right of eminent domain, and the like. In other words, we held that 
 while the classification of cities authorizes all necessary legislation for them 
 as cities, in the management of their municipal affairs, it does not make three 
 separate States within the territorial limits of Pennsylvania, for each of 
 which there may be different laws, on subjects of a general character, from 
 those in force in the rest of the Commonwealth. On the other hand, while 
 cities may have the legislation needful to the proper regulation and dis- 
 charge of all municipal powers, they are, under the constitution, and they 
 must remain, a part of the State of Pennsylvania, for all purposes not muni- 
 cipal, and subject to the laws of the State upon all subjects not of municipal' 
 concern." 
 
 1. 132 Pa. St. 257. 
 
 2. P. L. 87. 
 
 3. 133 Pa. St. 653. 
 
 59 
 
This principle was also very clearly stated by Williams, J., in the opinion 
 in Wyoming street: 1 "Some confusion seems to exist, however, in regard 
 to the definition of a general law, and a theory has been advanced in several 
 recent cases, and has been contended for by the appellee in this case, that 
 the division of the cities of the state into classes by the Act of 1874, which 
 was recognized as a necessary classification in Wheeler v. Philadelphia, 77 
 Pa. St., 338, required us to hold any law to be general which embraces all 
 the cities of a given class, without regard to the subject to which it relates. 
 This theory overlooks the objects and purposes of classification, which are 
 very clearly set forth in the first section of the act which divides the cities of 
 the state into three classes. These are, to make provision for the municipal 
 needs of cities which differ greatly in population. Differences in population 
 make it necessary to provide different machinery for the administration of 
 'certain corporate powers,' and to make a difference in 'the number, character, 
 powers and duties of certain corporate officers,' corresponding with the 
 needs of the population to be provided for. An Act of Assembly that re- 
 lates to a subject within the purposes of classification, as they are thus de- 
 clared by law, is a general law, although it may be operative in a very 
 small portion of the territory of the state, if it relates to all the cities of a 
 given class. * * * 
 
 "The test, therefore, by which all laws may be tried is their effect. If 
 they operate upon the exercise of some power or duty of a municipality of 
 the given class, or relate to some subject within the purposes of classifica- 
 tion, they are general, otherwise they are local." 2 
 
 1. 137 Pa. St. 494. 
 
 2. Same principle laid down in Straub v. Pittsburg, 138 Pa. St. 356; Pittsburg's 
 Petition, 138 Pa. St. 401; Scranton v. Whyte, 148 Pa. St. 419; Reeves v. Philadelphia 
 Traction Company, 152 Pa. St. 153; Safe Deposit & Trust Company v. Fricke, 152 Pa. 
 St. 231; McKay v. Trainor, 152 Pa. St. 242; Commonwealth v. MacFerron, 152 Pa. St 
 244; McAskie's Appeal, 154 Pa. St. 24; Harris' Appeal, 160 Pa. St. 494; Bruce v. Pitts- 
 burg, 166 Pa. St. 152; Van Loon v. Engle, 171 Pa. St. 157. 
 
 60 
 
CHAPTER V. 
 
 How Shall the State Control 
 Municipalities ? 
 
 The experience of both Ohio and Pennsylvania shows that in these states 
 constitutional limitations upon special municipal legislation have failed to 
 accomplish their purpose of protecting cities against such legislation. The 
 reasons for this failure are twofold: (i) The legislative unwillingness 
 to grant the cities, by general law, adequate powers, especially adequate 
 financial powers. (2) The failure of the constitution to define "special act" 
 — thus making possible the judicial doctrine of classification, the practical 
 effect of which is to destroy the protection which the constitutional limita- 
 tion was designed to afford. 
 
 Hence there still remains for solution the problem of the best means 
 of avoiding the evil of constant legislative interference in local affairs. 
 Several conclusions seem warranted by past experience. 
 
 (1). The first step, clearly, is to utilize all the protection afforded by a 
 liberal construction of constitutional provisions. Although the term "special 
 act" is not defined in the constitution, the convention debates show con- 
 clusively that the framers of the constitution meant to prohibit all acts 
 which did not apply to all cities of the state. These provisions have not 
 been thus broadly construed : in their decision sustaining classification the 
 courts have seemed to lose sight of the doctrine that "constitutional pro- 
 visions are to be broadly construed so as to carry out the great principles of 
 government." An important step toward a proper construction of these 
 provisions has, however, been taken in both Pennsylvania and Ohio: in 
 Ohio, by the recent decisions 1 overruling the entire doctrine of classifica- 
 tion; and in Pennsylvania by the decision in Ayars' Appeal 1 laying down 
 the rule of exigency as a limit upon the number of classes that may be 
 created, and declaring that in the judgment of the court, three classes of 
 cities cover every conceivable necessity. While the Pennsylvania court has 
 never allowed the doctrine of classification to be carried to the extreme for- 
 merly sanctioned in Ohio, its decisions upon classification deny to the chief 
 city of the state the protection against special legislation which the framers 
 of the constitution intended to afford ; and the first desideratum in Penn- 
 sylvania would seem to be to follow the recent decision of the Ohio Su- 
 preme Court, and overrule the entire doctrine of classification. Classifica- 
 
 1. The State ex rel. Knisely et al. v. Jones et al., 66 Ohio State, 453; The State 
 of Ohio ex rel. The Attorney General v. Beacom et al., 66 Ohio State, 491. 
 
 2. 122 Pa. St. 266. 
 
 61 
 
V 
 
 C 
 
 ■», 
 
 tion forbidden, legislation must proceed by general law, and legislative inter- 
 ference in local affairs will at once greatly decrease. 
 
 (2). Another step which might be taken in conjunction with the fore- 
 going would be the adoption of a constitutional amendment permitting cities 
 to frame charters for their own government. 1 In 1875 Missouri took the 
 lead in this direction by adopting a constitutional provision permitting cities 
 with over 100,000 population to frame their own charters. California adopted 
 a similar provision in 1879, the provision being extended in 1890 to all cities 
 with over 3,500 inhabitants. In 1889 Washington was admitted as a state 
 with a constitution which extended this privilege to cities with more than 
 20,000 inhabitants. Minnesota extends the privilege to any city or village 
 in the state, and Colorado in 1902 extended the privilege to first and second 
 class cities. Such a provision is the most radical step which has yet been 
 taken in American politics in the endeavor to secure home rule for cities. 
 The objections to this plan are that it carries local autonomy to an extreme, 
 -and fails to recognize that the state has a direct and vital interest in the 
 governmental functions of the city, and hence may legitimately control the 
 city upon its public or governmental side. 
 
 (3). Another solution strongly urged by very high authority is the 
 introduction of a system of administrative control of cities in place of the 
 jpresent method of legislative control. 1 
 
 That legislative control of municipalities is discredited can scarcely be 
 controverted. The legislature being a partisan body controlled by a party 
 majority, frequently acts with reference solely to the partisan 
 advantages resulting from its control over local affairs, instead of 
 with reference to the welfare of the city. New and unnecessary municipal 
 offices have been created, cities have been redistricted, the mode of appointing 
 the police force has been changed, whenever such action seemed expedient 
 for party reasons. This interference for partisan ends has perhaps been 
 the greatest evil resulting from legislative control. 
 
 Moreover, legislative control is unintelligent control. The great ma- 
 jority of the legislators take no legitimate interest in municipal legislation, 
 and such legislation is usually passed perfunctorily upon the recommenda- 
 tion of the representatives from the particular municipality, receiving little 
 or no consideration from the legislature as a whole. Hence legislative con- 
 trol is also irresponsible control— the local representatives being usually 
 able to shift responsibility for improper measures upon the entire legislative 
 body. 
 
 Furthermore, legislative control is excessive. The legislature has almost 
 invariably shown itself unwilling to grant cities large discretion in local 
 matters, and has generally restrained the municipalities within such narrow 
 limits that they have been compelled frequently to address the legislature 
 for additional powers. The legislature has entirely overlooked the distinc- 
 
 1. Supra, p. 16. 
 
 2. The following books and articles discuss this subject: Goodnow, Frank J.: 
 Municipal Problems; Municipal Home Rule. Holls, F. W.: State Boards of Municipal 
 Control, Proceedings of the Fourth National Conference for Good City Government, 
 held in Baltimore, 1896, p. 226. Jenks, J. W.: A State Municipal Board. Shaw, 
 Albert: Municipal Government in Great Britain; Municipal Government in Continental 
 Europe. 
 
 62 
 
tion between local and general affairs, and has interfered almost as freely 
 in purely local matters as in those public ones which may properly be sub- 
 jected to state control, and hence local autonomy has been largely destroyed. 
 
 Finally, legislative control is inefficient control. The friends of special 
 legislation formerly urged that such legislation for cities was necessary 
 in the interests of the state as a whole, especially as a bulwark against 
 -municipal extravagance. Legislative control has, however, proven a very 
 inefficient bulwark, as the legislature has utterly failed in its role of guar- 
 dian of the financial interests of the city — on the contrary, it has frequently 
 ■countenanced raids upon the municipal treasury which local control would 
 never have suffered 1 . 
 
 The five chief counts in the indictment of legislative control, then, are 
 that such control is partisan, unintelligent, irresponsible, excessive and 
 inefficient. Legislative control of municipal affairs being discredited, what 
 is the remedy? Most writers have believed it to consist in: (i) a careful 
 distinction between those municipal functions which are private or local in 
 their nature and those which are public or governmental; (2) in granting 
 to the municipality unrestricted control of its local functions; and, (3) in 
 the establishment of a state municipal board as a means of controlling the 
 public or governmental functions of the municipality. 
 
 The establishment of a state municipal board is suggested by the suc- 
 cessful experience of England, France and Germany, where administrative 
 control of municipalities prevails. Thus in England the Local Government 
 Board at London exercises a large degree of control over the public or 
 governmental functions of municipalities. Poor relief, public health, con- 
 stabulary, education, expenditures, are all subjected to a central administra- 
 tive control. This control in England, as in France and Germany, has gen- 
 erally proven highly efficient. 
 
 What would be the advantages of the introduction in this country of 
 .a system of administrative control of municipal affairs? Advocating the 
 establishment of a Municipal Government Board in the state of New York, 
 Professor J. W. Jenks summarizes the advantages as follows : 
 
 "A Municipal Government Board then would tend: (1) to make clear 
 the true relations between the functions of state and local governments; 
 (2) to secure the efficient performance of state functions by local officials; 
 <3) to furnish to the public information regarding the performance of local 
 functions in such comparative form that it would be of great service to local 
 officials; (4) to do supervising work of such a nature that it would check 
 continual interference in local affairs by the legislature without checking 
 the legislature in the making of needed general laws; (5) to stimulate by 
 publicity and encouragement local pride and activity in affairs purely local 
 and to develop the spirit of local home rule; (6) to guide, by accurate and 
 full information, public opinion on the various questions arising in connec- 
 tion with city government. 
 
 "It is hardly too much to say that every authority on municipal govern- 
 ment in this country and Europe favors a central administrative super- 
 vision oi local governments along the lines here laid down. The demand 
 
 1. Such as acts compelling cities to create debts against their will; authorizing a 
 city to issue bonds to the amount of $20,000,000 to build a railroad, etc. 
 
 63 
 
for the reform of the evils of our city governments, and for the lessening 
 of legislative interference with them is strong; the best remedy seems to 
 be the one suggested. 
 
 "There is every reason to believe that from the money saved to the 
 state and municipalities by the supervision of the Board the expenses of 
 its administration would be paid many times over, while the general excel- 
 lence and efficiency of the government would be greatly increased. It is not 
 to be expected that any new board would work a revolution in our municipal 
 politics and give us an ideal system; but it does seem probable that no 
 other improvement, ordinarily suggested, in our methods of city govern- 
 ment would be likely to yield so large favorable immediate results as would 
 the establishment of a Municipal Government Board." 
 
 The advantages of this method of controlling cities upon their public 
 or governmental side appear clear. Such a plan would be, to a large extent, 
 an innovation in our political system ; but in most states £ome form or degree 
 of administrative control already exists in state boards of equalization, state 
 superintendents or commissioners of schools, state boards of health, etc. 
 But the proposed plan involves a great extension of administrative control, 
 and it must not be overlooked, as a question of practical politics, that a 
 strong prejudice against state boards now exists in the minds of many 
 voters. This prejudice is doubtless in part due to the fact that many such 
 boards have been created for improper objects — for purposes which threat- 
 ened the vital interests of the cities 1 . It would be necessary, then, to remove 
 this prejudice by convincing the voters that a state municipal board created 
 for the purpose of controlling the governmental functions of municipalities 
 would in no way threaten the legitimate interests of municipalities. At the 
 present time in many states the tendency seems to be away from any sort 
 of central control, and the conception of home rule held by many voters 
 would, if carried out, involve an abdication on the part of the state of prac- 
 tically all control over municipal affairs. Intelligent public opinion will con- 
 cede that the state has a legitimate interest in the control of the public 
 functions of the municipality; and, eventually, when a more clear concep- 
 tion prevails of the proper relation of the city to the state and of the real 
 meaning of home rule for cities, a plan of state administrative control may 
 be accepted as the best solution of the method by which the state may 
 efficiently control cities upon their governmental side, while leaving to the 
 cities themselves regulation of local affairs. 
 
 1. Such as the measure introduced in the Ohio General Assembly at the session of 
 1904 providing for the granting of all local franchises by a state board. 
 
 64 
 

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