when a city attained to the population of the class above it, it should, upon the filing of a certain certificate of the fact by the governor, pass at once into the new class, and that its corporate powers and the number, character, powers and duties of its officers should remain the same, except as otherwise provided in the general act. It is held that on the transition of a city to a new class all special laws pertaining to the city in conflict with the general law for such cities are left behind.49

It is held that an act relating to a class of cities, which is to operate only in the cities which adopt it, tends to produce diversity and is void.50

§ 210. Same-Other states.-The courts of the various states, as a general rule, sustain the right of the legislature to classify cities according to population, where the classification is based upon substantial differences in population and is so made as to include cities afterwards attaining the requisite population. "The classes cannot be made so numer

Rep. 801. The court says: "Classification, therefore, is based on difference of municipal affairs, and so long as it relates to and deals with such affairs, the questions of where the lines shall be drawn and what differences of system shall be prescribed for differences of situation are wholly legislative. What is a distinction without a difference is largely matter of opinion. No argument, for example, could be more plausible than there is no real difference in municipal needs between a city of 99,000 and one of 100.000 population. It is a sufficient answer that the line must be drawn somewhere, and the legislature must determine where. So long as it is drawn with reference to municipal and not to irrelevant or wholly local matters,

the courts have no authority to interfere." p. 545.

49 Commonwealth v. Macferron, 152 Pa. St. 244, 25 Atl. 556.

50 Commonwealth v. Reynolds, 137 Pa. St. 389, 20 Atl. 1011. See ante, § 201.

51 Crovatt v. Mason, 101 Ga. 246, 28 S. E. 891; Owen v. Sioux City, 91 Iowa, 190, 59 N. W. 3; Tuttle v. Polk, 92 Iowa, 433, 60 N. W. 733; Cummings v. Chicago, 144 Ill. 563, 33 N. E. 854; Indianapolis v. Navin, 151 Ind. 139, 47 N. E. 525, 41 L. R. A. 337; Smith v. Indianapolis St. Ry. Co., 158 Ind. 425, 63 N. E. 849; State v. Standley, 76 Iowa, 215, 40 N. W. 815; Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; Newman v. Emporia, 41 Kan. 583, 21 Pac. 593; Preston v. Louisville, 84 Ky. 118: Brown v. Holland, 97 Ky. 249, 30

ous that it would require a separate statute for each separate corporation; nor could any supposed class be so specifically named or defined that only one particular corporation could come within such name or definition; for in either such case the statute itself would be special and not general.” 52

The constitution of Kentucky of 1891 provides as follows: "The cities and towns of this commonwealth, for the purpose of their organization and government, shall be divided into six classes. The organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same power and be subject to the same restrictions." The constitution designates the six classes by population, and provides that the general assembly shall assign the cities and towns of the state to the classes to which they respectively belong and shall change the assignments made as the population may increase or decrease. The legislature assigned Pineville to the fourth class, which embraced cities of from 3,000 to 8,000 inhabitants. The census of 1890 gave it but 1356. It was held that only the legislature could change the assignment, and that its right to an organization under the law for cities of the fourth class could not be tried in a quo warranto proceeding. Where an act applies to all cities having a certain population, it is prospective and will embrace cities thereafter attaining that population.55

54

As to the province and effect of classification acts the

S. W. 629; Nichols v. Walter, 37 Minn. 264, 33 N. W. 800; Allen v. Pioneer Press, 40 Minn. 117, 41 N. W. 936; Cobb v. Bord, 40 Minn. 479, 42 N. W. 396; Rutherford v. Hamilton, 97 Mo. 543, 11 S. W. 249; State v. Stuht, 52 Neb. 209, 71 N. W. 941; People v. Squire, 14 Daly, 154; Reading v. Savage, 124 Pa. St. 328, 16 Atl. 788; Beaver Co. v. Indexes, 6 Pa. Co. Ct. 525; Cook v. State, 90 Tenn. 407, 16 S. W. 471, 13 L. R. A. 442; Johnson v. Martin, 75 Tex. 33,

12 S. W. 321; Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603; Wait v. Santa Cruz, 75 Fed. 967; Wait v. Santa Cruz, 89 Fed. 619.

52 Topeka v. Gillett, 32 Kan. 431, 434, 4 Pac. 800.

53 Const. 1891, sec. 156. 54 Green v. Commonwealth, 95 Ky. 233, 24 S. W. 610.

55 Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 723; Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603.

supreme court of New Jersey, referring to the classification act of that state, says: "It is a mere formula, a convenient method by which to avoid the repetition of words and numerals when legislating for or interpreting enactments concerning municipalities. Beyond this it is incapable of exercising any controlling effect upon either the legislature or the courts. It does not extend the power of the one, nor limit that of the other; it may be ignored without impairing legislation, and its employment will not in the least degree tend to legitimize legislation otherwise vicious in a constitutional sense. 9956

§ 211. For what purposes the classification of municipalities is permissible.-The question is thus answered by the supreme court of Pennsylvania: "This is, therefore, the test by which to determine the validity of a law relating to a given class of cities. If it relates to subjects of municipal concern only, it is constitutional, because operating upon all the members of the class it is a general law. If it relates to subjects of a general, as distinguished from a municipal, character, it is local, and therefore invalid, although it may embrace all the members of the class.57 In New Jersey it is held to be the settled law of the state that "with regard to structural forms of government and administration, the municipalities of the state may be distributed, for legislative purposes, into classes constructed on the basis of population;" and that it is only when legislation "relates to something manifestly foreign to the distinctive grade of

56 State v. Wescott, 55 N. J. L. 78, 80, 25 Atl. 269. To same effect, State v. Connelly, 66 N. J. L. 197, 48 Atl. 955, 88 Am. St. Rep. 469; Hudson County Freeholders v. Clarke, 65 N. J. L. 271, 47 Atl. 478. In the last case the court says: "If a classification would be illusory if it were based upon population definitely stated, it is equally illusory if based upon reference to the clas

sification act of cities and counties. The classification act is simply a method of convenient reference to counties by population, by refer ring to such act instead of designating in the statute itself the population of the counties or municipalities to which it is to apply." p. 276.

57 Scranton v. Whyte, 148 Pa. St. 419, 426, 23 Atl. 1043.

the cities to which it is applied," that it is special and void.58 Many other cases to the same effect will be found referred to in the preceding sections."9

The reason upon which classification is founded is that cities of widely different population have different needs and conditions which render necessary corresponding differences in their corporate powers and in the number, character, powers and duties of the officers by whom the municipal government is to be conducted and its necessities provided for.60 Where the reason ceases to operate classification by population ceases to be valid.

Acts relating to primary and general elections and the registration of voters may be made applicable to one or more classes of cities.61 So of acts relating to the election or appointment of municipal officers or boards, or to their terms of office, powers, duties or compensation. But the decisions do not seem to be uniform even in the same state.

58 State v. Caminade. 55 N. J. L. 4, 25 Atl. 933. Continuing the court says: "This principle leaves it to the legislature to create or to modify, in general, the institutions in each class of our cities as it may deem expedient, and such institutions may differ in all respects, or in some respects, from those exist ing in cities of other grades, provided the differentiation thus introduced is not demonstrably evasive of the constitutional provision under discussion." p. 6.

59 See also State v. Newark, 57 N. J. L. 298, 30 Atl. 543; Foley v. Hoboken, 61 N. J. L. 478, 38 Atl. 833; Ruan Street Opening, 132 Pa. St. 257, 19 Atl. 219, 7 L. R. A. 193; Wyoming Street, 137 Pa. St. 494, 21 Atl. 74; Commonwealth v. Moir, 199 Pa. St. 534, 49 Atl. 351, 85 Am. St. Rep. 801.

60 Ruan Street Opening, 132 Pa.

62

St. 257, 19 Atl. 219, 7 L. R. A. 193;
State v. Caminade, 55 N. J. L. 4, 25
Atl. 933.

61 State v. Fleming, 147 Mo. 1, 44 S. W. 758; State v. Mason, 155 Mo. 486, 55 S. W. 636; Ladd v. Holmes, 40 Ore. 167, 66 Pac. 714; Cook v. State, 90 Tenn. 407, 16 S. W. 471, 13 L R. A. 442.

62 Crovatt v. Mason, 101 Ga. 246, 28 S. E. 891; State v. Mason, 153 Mo. 23, 54 S. W. 524; In re Haynes, 54 N. J. L. 6, 22 Atl. 923; State v. Fury, 55 N. J. L. 1, 25 Atl. 934; State v. Caminade, 55 N. J. L. 4, 25 Atl. 933; State v. Gibson, 55 N. J. L. 11, 25 Atl. 935; State v. Delaney, 55 N. J. L. 9, 25 Atl. 936; State v. Ridgeway, 55 N. J. L. 10, 25 Atl. 936; State v. Kremer, 62 N. J. L 483, 41 Atl. 711; State v. Conelly, 66 N. J. L. 197, 48 Atl. 955, 88 Am. St. Rep. 469.

An act relating to the consolidation of offices and to the terms, duties and compensation of officers, and limited to cities of the second class having less than 35,000 population, was held special and void because there was no reason why it should not apply to cities of more or less population. The same ruling was made upon an act providing that in cities of the first class municipal officers should be elected on the same day and voted for on the same ballot as state and county officers. It was said that if an evil existed in the old system it existed in all municipalities, and that the remedy should extend to all. An act changing the method of appointing the city physician in cities of the second class was held void because there was no reason why it should not apply to all classes.65

64

66

Acts relating to gas and water supply and similar public services may be limited to a class. And so of acts relating to local improvements.67 But acts or provisions as to procedure in condemnation cases, or in the assessment of damages and benefits, or as to the lien of assessments, are held to relate to subjects of a general nature, and such legisla

63 State v. Orange, 60 N. J. L. 111, which the middle class is separated 36 Atl. 706. from the others." p. 552.

64 State v. O'Donnell, 60 N. J. L. 35, 37 Atl. 72.

65 State v. Simon, 53 N. J. L. 550, 22 Atl. 120. The court says: "In this case there has been no reason assigned, nor is it apparent, why an officer known as city physician, in a city of the second class, should have a different appointment, with a term fixed by the mayor and with an annual salary to be allowed by the legislative body confirming the appointment, from a physician to be appointed and compensated in a city of the first class, or of the third class. Population cannot have any just reference to this distinction between these classes by

66 In re Haynes, 54 N. J. L. 6, 22 Atl. 923; State v. Moore, 54 N. J. L. 121, 22 Atl. 993; Flynn v. Little Falls Elec. & Water Co., 74 Minn. 180, 77 N. W. 180. Contra, Van Fleet, V. C., in Atlantic Water Works Co. v. Consumers' Water Co., 44 N. J. Eq. 427, 15 Atl. 581.

67 Cummings v. Chicago, 144 Ill. 563, 33 N. E. 854; Tuttle v. Polk, 92 Iowa, 433, 60 N. W. 733; State v. District Court, 61 Minn. 542, 64 N. W. 190; Rutherford v. Heddens, 82 Mo. 388; Rutherford v. Hamilton, 97 Mo. 543, 11 S. W. 249; Scranton v. Whyte, 148 Pa. St. 419, 23 Atl. 1043.