Commonwealth v. Gilligan , 195 Pa. 504 ( 1900 )

Opinion by

Mb. Justice Mitchell,

It is conceded that the respondents were duly elected school controllers in accordance with the Act of May 23, 1874, P. L. 254, sec. 41, and that they are properly qualified and entitled to hold the office, if the act is valid. But it is said that the act being one for the classification and regulation of cities of the third class, section 41 and those parts of the act which relate to school districts are void as local or special legislation on a subject prohibited by section 7 of article 3 of the constitution. The learned court below so held.

Section 41 which is in question provides that “ each of said cities of the third class shall constitute one school district.” There is nothing new or peculiar in this, so far as it makes the district coterminous in territory with the city, for the legislature has always constituted school districts of territory embraced in some of the municipal- or political divisions of the state. Thus the Act of May 8, 1854, P. L. 617, sec. 1, which is the foundation of the existing statute law on the general subject, provides that “ every township, borough and city .... shall constitute a school district.” Section 41 then provides that “ all the property therein shall be the common property of said districtand the members of the board of school controllers for the time being shall have power to levy and collect taxes and the same rights and powers in relation to real and personal property as is now by law conferred upon the school directors of the several districts of this commonwealth, and they shall govern and manage the public schools in the manner now provided by law for the maintenance of a system of education by common schools ; ” but further proceeds to fix the number of school controllers according to the number of wards in the city, and their separate election by the electors of the several wards. These latter provisions apply in terms only to cities of the third class, and herein lies the substance of the objection made. . -

The most cursory examination of this act discloses, that it is pro tanto a classification of school districts which by the previous law as well as by its own provisions were coterminous with the cities being legislated for. At the date of the act, the constitution was just adopted, and its restrictions on the forms of expression of legislative meaning were not so prominent in the minds of legislators • as they have since become. Hence the necessity for express classification was not specially apparent. But the legislative intent is clear, and there is nothing unconstitutional in it. In Lloyd v. Smith, 176 Pa. 213, it was said that the principle was established “ that a law which does not exclude any one from a class, and applies to all the members of the class equally is general. The same principle must make classification constitutional as to the other political and municipal divisions of the state when considered in their governmental capacity. Classification of counties is therefore as permissible as classification of cities, and the legislature may determine what differences in situation circumstances and needs call for a difference in class, subject to the supervision of the courts as the final interpreters of the constitution, to see that it is actual classification, and not special legislation under that guise.” And the test in this respect is not wisdom but good faith, in the classification: Seabolt v. Comrs. of Northumberland County, 187 Pa. 318. It has already been held in In re Sugar Notch Borough, 192 Pa. 349, that “there is no constitutional objection to the classification of school districts any more than of cities. Both are included in the same clause of the constitution prohibitory of local or special legislation, and there is no argument against classification of one that is not equally forcible against the other.” What is classification ? With reference to the present subject it is the grouping together for purposes of legislation of communities or public bodies which by reason of similarity of situation, circumstances, requirements and convenience will have their public interests best subserved by similar regulations.

It is said that classification is only sustained on the ground of necessity. But the necessity spoken of by this court in Wheeler v. Philadelphia, 77 Pa. 338, was the necessity of escape from the intolerable inconvenience of uniformity of regulations under circumstances and needs essentially different. And in general with reference to public matters and legislative usage, necessity means great or urgent public convenience. Thus viewers under the act of June 13, 1836, are required to examine and report “ whether the road desired be necessary for a public or private road,” etc. It cannot be contended that anything more is meant than public convenience. And many other illustrations might be given to the same effect. The strictest definition of necessity to be found in the books, by Sterrett, J., in Ayars’s Appeal, 122 Pa. 266, 281, is not essentially different: “ A necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to the others. . . . They are general laws because they apply alike to all that are similarly situated as to their peculiar necessities.”

The classification of school districts intended by the act of 1874 is upon lines of distinction as genuine and as fundamental as its classification of cities themselves. Both cities and school districts exercise functions which are governmental in character, and they necessarily run closely together. The legislature may recognize this fact, and provide for the regulation of the two.powers concurrently in the same territory so far as they relate to the same or similar matters, so that the same governmental functions, as for instance the supreme power of arbitrarily taking the citizen’s property by taxation, shall be exercised harmoniously over the inhabitants of the same district. An illustration of this principle may be found in the act of 1854, which has worked so well in practice that for nearly half a century it has been the basis of all the statute law on the subject. Section 1 of that act, as already quoted, provides that “ every township borough and city .... shall constitute and be a school district, subject to the provisions of this act, but any borough which is or may be connected with a township in the assessment of county rates and levies shall with the said township form one district.”

How far classification' in connection with cities might be applied to functions of the school boards strictly educational in character, such as the qualifications of pupils or teachers, the grading of schools, the course of study, etc., we need not now consider. This act does not interfere with any such matters ■but leaves them all unchanged as before in the hands of the governing bodies. The act deals with business affairs which though relating to schools are in their nature municipal and provides a similar system for those similarly situated. It does not mate the school boards parts of the municipal government, they are left as independent as they were before. But recognizing that a large population compressed into a small territory may have the same necessity for a somewhat differently constituted board of government for the business affairs of its schools, that it has for its strictly municipal affairs, it provides a special system for districts so specially situated. This is the legitimate office of classification, and therefore is not local or special within the prohibition of the constitution. The act of 1874 in its main features affecting school districts is in entire harmony with the act of 1854 and the general laws on the subject of schools. Whether the variations as to the boards of direction or control in cities of the third class (cities of the first and second classes having already their own peculiar systems) are wise is a legislative not a judicial q uestion. The act has stood on the statute book, without challenge for nearly a quarter of a century, and millions of dollars of school funds have been collected and disbursed under its provisions. While these are not reasons for refusing to declare it void if in contravention of the constitution, yet they are strongly persuasive that the act is not so clearly unconstitutional as it should be shown to be to make it our duty now to set it aside: In re Sugar Notch Borough, 192 Pa. 349, 358.

Objection is also made to the act on the ground that its title gives no indication of its contents in regard to school districts. The case was argued and treated both in the court below and here, as resting on the act of 1874, and for convenience has been so considered up to this point. But with reference to this second objection it is important to remember that the act upon which the case rests is the Act of June 16, 1891, P. L. 306. It is true that it is as it purports to be, an amendment of section 41 of the act of 1874, but it is a substantial re-enactment with some changes, and is a complete, independent and self-sustaining statute, and its title, An Act to amend the 41st section, etc. “in respect to the representation in boards of school controllers,” etc., gives explicit notice of the subject intended to be legislated upon.

Counsel for appellant have referred us to several decisions in other states upon substantially similar constitutional provisions, and they appear to be in entire harmony with our views herein expressed, but it is not necessary to do more than refer to them in this general manner.

In deference to the importance of the question and the elaborate opinion of the court below, the writer has carefully reread and compared all of the numerous decisions of this court on the restrictions contained in article 3 of the constitution. Our present views are not in conflict with anything that was decided in any of them, though occasional expressions are to be met with that indicate some uncertainty and perhaps even some variation in the views of the writers of the opinions. This was to be expected. The constitution of 1873 was a new departure in the history of the law. Instead of being confined, in accordance with the traditions of American institutions, to the framework of the government as composed of general and fundamental principles, it was converted into a binding code of particulars and details which had previously been left to the province of ordinary legislation. And the ruling motive with which we are now specially concerned was profound distrust of the legislature. As pointed out by our Brother Dean in Perkins v. Philadelphia, 156 Pa. 554, article 3 contains sixty specific prohibitions of legislation besides other restrictions and regulations not absolutely prohibitory. Through these the pathway for honest and desirable and necessary laws even yet is not always clear, and it was inevitable that there should be some uncertainty and even divergence in the views of judges thus forced to enter on an untrodden and difficult field. But as already said there is no conflict between what we now hold and anything we have heretofore decided. And the only case which is in apparent opposition is Chalfant v. Edwards, 173 Pa. 246. That case was rightly decided on its facts, as was shown in In re Sugar Notch Borough, 192 Pa. 349, 357, but much of what our late Brother Williams said in the opinion was by way of historical review of the public school system, rather than of discussion of constitutional powers, and the authority of the case must be strictly limited to what it decided. So limited it is in line with all our cases on the subject including the present.

The evil at which the prohibitions of article 3 were directed was the interference of the legislature with local affairs without consulting the localities and the granting of special privileges ox exemptions to individuals or favored localities. It was said by Sterrett, J., in Ayars’s Appeal, 122 Pa. 266, that “ 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 Pitts-burg, and for other municipal divisions of the state about the same proportion. This was by no means exceptional.” A cursory examination of the pamphlet laws of 1873 shows that no less than thirty-one of these local laws relating to Philadelphia were acts over the heads of councils and the courts directing the opening, paving or vacating of particular streets by name. This is a fair specimen of the kind of local and special legislation that was the real evil to be corrected, but owing to the breadth of the language used, perhaps, somewhat due to the wrathful zeal with which the convention attacked the subject, the courts have had a difficult task to enforce the constitutional restrictions fully, even “ sternly ” as was said in Morrison v. Bachert, 112 Pa. 322, without carrying them far beyond the real evil intended to be remedied, and making them a chain of fetters on the just requirements of special communities and localities. In a forcible but very temperately worded report by the Committee on Local and Special Legislation, to the State Bar Association in July, 1899, it is very justly said: “ It is neither safe nor fair to set down the continual efforts to escape the constitutional prohibition, to the perversity of the people or the wilfulness of the legislature. On the contrary they demonstrate the deep-seated and general discontent upon the part of the municipalities of the state with the restrictions imposed by the constitution: ” 5 Annual Rep. of Penn. Bar Assn. 137.

Undoubtedly many acts have been passed whose framers intended to evade the constitutional prohibitions. These the-courts have always unhesitatingly struck down, and may safely be relied on to continue to do so. But where the legislative intent is not to evade the restrictions the courts are not required to be astute in extending them over cases not really within the' evil prohibited though the form may have the appearance of coming within the literal words of the constitution. A very-signal illustration of this principle is found in City of Reading v. Savage, 120 Pa. 198. The Act of May 28, 1874, P. L. 269, sec. 57, authorized cities of the third class by ordinance of councils to accept the act, and thereby acquire the powers of a city incorporated under the act. The city of Reading having passed such an ordinance, filed a municipal lien for grading, etc., and its authority being disputed the court below held that section of the act unconstitutional on the ground that the act was not binding on all cities of the class, saying “ it is the compulsorily binding character of the law upon all alike in the classification that gives it constitutional life.” On appeal this was affirmed per curiam.- That section of the act was local in form as it did not apply to all cities of the class, and the court took this view. Doubt having arisen, however, the court ordered a reargument and reversed its first ruling on the ground that the act of 1874 being a general act for the future incorporation of cities, the provisions of section 57 allowing cities of the third class already existing, to come into the general class, did not in any way make the act local or special, the present chief justice saying, cities “ that do not embrace the opportunity simply remain as they were before, and all that do embrace it become members of a class .... regulated by general law. There is no possibility of any exercise of the powers or privileges conferred by section 57 which can work affirmatively a local or special result. Whatever is done by virtue of this section simply converts that which was or might be local or special, into that which is general:" City of Reading v. Savage, 124 Pa. 328, 336. Other illustrations will be found in Evans v. Phillipi, 117 Pa. 226, Road in Cheltenham, 140 Pa. 136, and Bennet v. Norton, 171 Pa. 221, particularly the remarks of Rice, P. J., on statutes local in form but not in intent violative of the constitution, pp. 236, 237.

It may, therefore, be taken as settled law that in cases of this character the courts will look beyond the mere form of the act, and examine its true intent and effect, in the light of the purpose of the constitutional restrictions.

Judgment reversed and judgment entered for defendants (appellants) with costs.