Sample v. City of Pittsburg

• Decision Date: 10 May 1905
• Docket Number: 117
• Parties: Sample v. Pittsburg
• Court: Pennsylvania Supreme Court

62 A. 201

212 Pa. 533

Sample v. Pittsburg

No. 117

Supreme Court of Pennsylvania

May 10, 1905

Argued May 10, 1905

Bill in equity, No. 117 Miscellaneous Docket by Thomas G. Sample Caspar C. Heckel and John M. Allen v. The City of Pittsburg a municipal corporation, and William B. Hays, Mayor, James S Wrightman, President of Select Council and R. B. Ward, President of Common Councils of the City of Pittsburg.

Bill in equity to restrain defendants from taking any proceedings under the act of assembly, approved April 20, 1905, to annex the city of Allegheny to the city of Pittsburg.

William A. Stone, Harvey Henderson and W. C. Gill, for plaintiffs. -- This bill classifies or attempts to classify by location the cities that may be annexed or consolidated. "Classification which is grounded on no necessity and has for its sole object the evasion of the constitution, will not be encouraged:" Scowden's Appeal, 96 Pa. 422; Ayars's Appeal, 122 Pa. 266.

The Cook law is local and special legislation, and is prohibited by article III, section 7, of the constitution: Frost v. Cherry, 122 Pa. 417; Morrison v. Bachert, 112 Pa. 322; Com. v. Patton, 88 Pa. 258; Scowden's App., 96 Pa. 422; Blankenburg v. Black, 200 Pa. 629; York School Dist's. App., 169 Pa. 70; McCarthy v. Com. ex rel., 110 Pa. 243; Ruam Street, 132 Pa. 257; Wyoming St., 137 Pa. 494; Zeigler v. Gaddis, 44 N.J.L. 363; State v. Newark, 53 N.J.L. 4 (20 A. Repr. 886); People v. Knopf, 183 Ill. 410 (56 N.E. Repr. 155).

Wm. B. Rodgers, with him T. D. Carnahan, for defendants, cited: Gilchrist v. Strong, 167 Pa. 628; Blankenburg v. Black, 200 Pa. 629.

A. Leo Weil, for intervenors, Pittsburg chamber of commerce and petitioning registered voters of Pittsburg and Allegheny.

Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT, POTTER and ELKIN, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is a bill filed in this court by the plaintiffs, who are citizens and taxpayers of Allegheny City, to restrain the defendants, the city of Pittsburg and William B. Hays, mayor, James S. Wightman, president of select council, and R. B. Ward, president of common council, from taking any proceedings to annex the city of Allegheny to the city of Pittsburg under the provisions of an act of assembly, commonly known as the "Cook law," entitled "An act providing that where two cities are contiguous, and in the same county, the smaller may be annexed to the larger; prescribing the method of proceeding and the effect of annexation; providing for the division of such enlarged cities into wards, for the apportionment of common council, and for the indebtedness of such cities," approved April 20, 1905, P.L. 221.

It appears from the averments of the bill that the city of Pittsburg through its mayor and councils have instituted proceedings in the court of quarter sessions of Allegheny county to have the city of Allegheny annexed to the city of Pittsburg under this act of assembly. The bill avers, inter alia, that the two cities are cities of the second class, located in Allegheny county, and are separated from each other by the Allegheny river and the Ohio river, both navigable streams; "that the said two cities of Pittsburg and Allegheny are the only two contiguous cities in the state of Pennsylvania, and are the only two cities in any county in the state that are contiguous; that there is no other locality in the state of Pennsylvania where there are two cities as classified under the laws of Pennsylvania, nor is there any other locality in the state where any borough or township is contiguous to a city that can be annexed thereto under the present laws of the state of Pennsylvania except by a majority vote of the electors of said borough or town as provided by the constitution of Pennsylvania;" and that "the Cook law, under which the defendants are proceeding, is unconstitutional because prohibited by article III, section 7, subdivision 2 of the constitution, which provides that the general assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts." It is further averred that "the Cook law is a local law because its provisions can only apply to one locality, namely, the mouth of the Allegheny river, where it empties into the Ohio river, and for some distance above and below its mouth; that there is no other locality in the state of Pennsylvania to which the Cook law can apply, and it was the intention of the legislature that it should only apply to this locality; that the law is special and class legislation, and is unconstitutional." The defendants filed an answer in which they denied that the act in question is unconstitutional and aver, inter alia, as follows: "It may be that the cities of Pittsburg and Allegheny are the only two contiguous cities of the state, situate in the same county; but it is submitted that the time is not far distant when contiguity will exist as to the boundaries of other cities of the state, within the meaning of the act of the general assembly, approved April 20, A.D. 1905, . . . and that in the very near future the city of Pittsburg and the city of McKeesport, both of which are in Allegheny county, will be in all probability contiguous."

The first section of the act of 1905 provides, inter alia, that where two cities, situate in the same county, are or may be contiguous to each other, the city having the smaller population, as shown by the last preceding United States census, may be annexed to the city having the larger population, as shown by the said census. It is further provided in this section that "for purposes of this act, cities separated by a stream, river or highway shall be included under the term contiguous." The act then, in several sections, provides in detail the proceedings which shall be taken to carry it into effect.

The subject of this statute is the annexation of one city to another, and it requires no argument to show, and we understand it is conceded, that it must be regulated by general legislation. A careful consideration of the act, however, convinces us that it was not intended to be general in its operation throughout the state and that it clearly offends against sec. 7 of article III of the constitution of 1874 which provides that "the general assembly shall not pass any local or special law . . . regulating the affairs of counties, cities, townships, wards, boroughs or school districts." We do not deem it necessary to enter into a discussion of the power of the general assembly to classify cities for the purposes of legislation or the multitude of cases decided by this court on the subject. We are concerned here, not with the subject of classification of cities and whether the legislature in enacting the statute in question has transgressed the constitution in that respect, but simply whether the act is local or special legislation in contemplation of the constitutional provision prohibiting such legislation.

This section of the constitution has frequently been the subject of interpretation by this court. Commonwealth v Patton, 88 Pa. 258, involved the constitutionality of an act of assembly entitled: "An act to provide for the holding of courts in certain cities of this commonwealth." The act required that in all counties containing a certain population and having a city with a certain population, situate at a certain distance from the county seat, the judge of the courts of the county should hold a session of court in such city after every regular term of court for the county. This court held the act to be special legislation and in conflict with article III, sec. 7 of the constitution. The trial judge in that case found that Crawford county was the only county to which the act could apply at that time. Mr. Justice PAXSON delivering the opinion says (p. 260): "This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titusville, with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or all counties with a population of over sixty thousand, watered by a certain river or bounded by a certain mountain? There can be no proper classification of cities or counties except by population. The moment we resort to geographical distinctions we enter the domain of special legislation, for the reason that such classification operates on certain cities or counties to the perpetual exclusion of all others. . . . That is not classification which merely designates one county in the commonwealth, and contains no provision by which any other county may, by reason of its increase of population in the future, come within the class." A subsequent and similar act intended to accomplish the same result, applying to counties and cities of the future as well as of the present, was also declared unconstitutional in Scowden's Appeal, 96 Pa. 422. Justice PAXSON again delivering the opinion says (p. 425): "It is no part of our business to discuss the wisdom of this legislation. However vicious in principle we might regard it, our plain duty is to enforce it, provided it is not in conflict with the fundamental law. It requires but a glance at the act to see that it is an attempt to evade the constitution. It is special legislation under the attempted disguise of a general law. Of all forms of special legislation this is the most vicious. . . . The Act of June 12, 1879, P.L. 174 (the act then under consideration), makes no attempt at the classification of cities. It is merely an effort to legislate for certain cities of the fifth class to the exclusion of all other cities of the same class. That is to say, it refers only to cities of the fifth class which are...