Blankenburg v. Black , 200 Pa. 629 ( 1901 )

Opinion by

Mb. Justice Mitchell,

Two technical objections to the bill may be first noticed.

There are some superfluous parties. The two plaintiffs who are office holders have a special interest. While there is no vested title in an office not protected by the constitution, yet the holders have a special interest not to be deprived of it by unconstitutional means. They could, however, defend their possession after the election, and if the bill were filed by them alone it would be a sufficient answer to refer them to their remedy at law. But as the bill is brought in behalf of taxpayers, the addition of the office holders, though unnecessary, does no harm. The taxpayers’ standing is beyond question, and the smallness of their interest affects not their right but the discretion of the court in the application of the remedy by injunction.

The officers of the Republican County Convention, and the candidates nominated by it are also improperly joined as defendants, but as no affirmative relief is asked against them, they are merely superfluous parties as to whom the bill may be dismissed.

Nor is the bill multifarious in respect to its object. Its purpose is single, to have two statutes declared unconstitutional, and parties prevented from acting under their supposed authority.

The bill was filed late and very close on the eve of election, a practice not to be encouraged. If a single member of the court had a doubt on the law, we should postpone the decision. But the time, though short, is sufficient for so clear a case.

The Act of April 24, 1901, P. L. 95, known as act No. 66 of the session, plainly contravenes the prohibition in section 7 of article 8 of the constitution against the passage of any local or special law “regulating the affairs of counties, cities,” etc. It provides that “ there shall be elected in each county coextensive in boundary with a city of the first class, three persons to serve as members of the board of revision of taxes,” etc. This description cannot apply either at the present time or in the proximate future to any county but Philadelphia, and for that reason the act is distinctly local and special. It cannot be sustained on the ground of classification, for it is outside of all the principles on which classification is permissible. The rule is stated in Lloyd v. Smith, 176 Pa. 213, that “a law which does not exclude any one from a class, and applies to all the members of the class equally, is general,” and the converse is also true that a law which does permanently exclude any one from the class must be special. The fact that the law applies to only one county now would not be a sufficient objection if in the natural progress of events under existing laws, others may grow into the class hereafter. But the way must be clear for them to do so. No such way is left open by this statute. It is not a law relating to cities of the first class, but to counties coextensive with them and there is no other county than Philadelphia which is now so coextensive in boundary, nor is there any law on the statute books by which any other county can become so. If any city shall hereafter grow into the first class, as Pittsburg is rapidly doing, its county will not come under this, act without further legislation to enable it to do so, and even then it will come in not by virtue of any generality in this act, but by the provisions of such subsequent legislation. So far as the operation of this act is concerned it not only applies to but one county now, but permanently excludes all others. That is not classification but special and local legislation on a forbidden subject.

The other act of the same date, No. 65 of the session, P. L. 94, is also set out in the bill, and is so closely connected with No. 66 by its subject and provisions, that it is proper to consider it also.

It is an act repealing part of a section of the act of 1865, being so much as provides for the appointment of the board of revision of taxes in the county of Philadelphia, and also the supplementary act of 1865, and section 1 of the act of 1867.

This act is equally and even more frankly local than No. 66, for it applies only to the city of Philadelphia by name. It is argued, however, that it is valid under the part of section 7 which permits the passage of laws repealing special or local acts. The present act, however, is not a repeal of the act of 1865, but only of a part of it, and in such manner as to amount merely to an alteration of the local law. The object of the permission in the constitution to repeal local and special laws was to allow the legislature to do away with exceptions, and bring interests previously under special or local statutes into conformity with the general laws of the state. This act does nothing of that kind. It merely makes a change in the mode of filling an office whose name, powers and duties are left as they were before. This is not repealing an old local law but making a new one.

As this objection is fatal to both the acts in question, it is not necessary to discuss the other points raised in appellants’ argument.

As already indicated, the bill was properly dismissed as to the defendants Crow, Crout, Nichols, Colville and Hanifen. As to the city commissioners and the sheriff, however, the decree is reversed, the bill reinstated and injunction directed to be awarded in accordance with this opinion.