name to one public corporation. Two evils resulted from this: (1) the cities were not permitted to attend to their own purely local concerns; and (2) each public corporation had, or was likely to have, an organization and powers different from those of any other similar municipality, so that it was exceedingly difficult, as a legal proposition, to determine the validity of local action of any kind. To remedy this constant interference in the local affairs of the public corporations, as well as to enable the courts and legal profession generally to ascertain more easily the powers of any given municipality, the provisions we are discussing were adopted into the state constitutions. It is obvious that it could not have been the intention to prevent the legislature from giving to very large cities a different organization from that provided for smaller communities; in other words, the effect of the provisions is to compel the legislature to follow some principle of classification, dealing alike with all public corporations in the same class.

§ 29. Permissible principles of classification. The vital question, therefore, is: What principles of classification may the legislature adopt? In a recent case (25) the supreme court of Wisconsin attempts to summarize the results of the cases upon this question. In the case before the court the legislature had provided that "bridges across navigable streams on town roads shall be built, maintained and repaired by the town and village jointly, the expense to be borne by each in proportion to their equalized valuation as fixed by the county board."

This provision required the village of Bloomer in a particular case to pay part of the cost of erecting and maintaining a bridge situated wholly outside the village limits, but within the limits of the town. Among the arguments urged against the validity was that it constituted special legislation. In upholding its constitutionality, the court used the following language: "The classification here seems to satisfy every essential laid down in the books. It is based on substantial distinctions making one class really different from another. It is germane to the purpose of the law. It is not based on existing circumstances only. The law applies equally to the members of the class. The character of the class is so far different from other situations as, within the boundaries of reason at least, to suggest necessity or propriety, having regard to the public good, of substantially different legislative treatment." This recognizes, therefore, that the legislature may classify public corporations, provided the principle of classification adopted is a reasonable one under the circumstances, i. e., is germane to the purpose of the law, and based upon substantial distinctions making one class really different from another; and that a law which applies to all the municipalities falling within any class is general and not special. In the light of this, let us examine some of the cases.

§ 30. Classification according to population. It is held, apparently by all courts, that a classification according to population is constitutional, unless it be apparent to the court that the object of the law is to evade the constitutional provision. In the earlier cases the limita

not clearly made, and led to unfortunate results. The experience of the Ohio courts is especially instructive in this respect. In State v. Pugh (26) the classification was based upon population, with the result that only one city, Columbus, fell into the second class. The law, however, was so drawn that if at any time in the future other cities grew to have the same population, they would become cities of the second class, and the court held the law to be constitutional. This appears to be a rational view, and is what the Wisconsin court had in mind when it said that the classification must not be based upon existing circumstances only, i. e., must be prospective in its operation. If the act applies only to corporations having at the time of the passage of the act a certain population, it is accordingly unconstitutional, no matter how many cities it affects (27). So, also, if the act refers to cities by name and does not make provision for others which later obtain the same population, it is special legislation and void (28). An interesting attempt to evade the provision we are discussing was made in the case of Commonwealth v. Patton (29) in which the provisions of the act applied only to "all counties where there is a population of more than sixty thousand inhabitants, and in which there shall be any city incorporated at the time of the passage of this act, with a population exceeding eight thousand inhabitants, situated at a distance from the county seat of more than twenty-seven miles by the

(26) 43 Ohio St. 98.

(27)

McCarthy v. Commonwealth, 110 Pa. St. 243. (28) City of Council Grove, 20 Kansas 619.

usually traveled public road." The act was, of course, adjudged unconstitutional, for, as the court pointed out, the legislature might as well have named the county in question. The limitation suggested at the beginning of this paragraph was applied by the Ohio court in the recent case of State v. Jones (30) where the court held void a classification in which the largest eleven cities in the state were put into eleven different classes. Said the court: "In view of the trivial differences in population

the present classification cannot be regarded as based upon differences in population." As the Wisconsin court might say, there was no real, substantial distinction between the so-called classes, nor was the basis adopted germane to the purposes of the act.

§ 31. Classification according to geographical conditions. Commonwealth v. Patton (see note 29) is sometimes given as an authority for the proposition that classifications based upon geographical conditions which cannot change are always bad (31). It seems, however, that that is putting the matter too strongly. In this case the geographical elements in the classification furnished no real basis for distinction and were not germane to the purpose of the act. The same may be said of State v. Philbrick (32) in which an act applying exclusively to seaside resorts was held void, but again, as the opinion of the court shows, the basis for the decision is that there is no relation between the objects of the act and the basis of classification. Said the court: "Contiguity to the sea

is no ground for the existence of a different rule in respect to the general amount of taxes to be raised, and I am clear that no reasons can be suggested why the power to designate the amount should, in boroughs not lying on the ocean, be committed to the people at large, while in boroughs on the sea the power should be placed in the hands of commissioners." In State v. Hammer (33) the court gave as an example of a legitimate classification a law giving to all cities situated on tidewater the privilege of using such water in connection with sewers. It would seem, therefore, that a valid classification may conceivably be based upon permanent geographical features, if the basis of classification is germane to the purposes of the act.

§ 32. Other methods of classification. An example of another basis of classification is found in Bronson v. Oberlin (34) in which the act applied to "all villages having within their limits a college or university," and was held constitutional. How easy it is to overstep the limits is shown by a recent Missouri case (35) in which the act of the legislature whose validity was disputed provided that "no dramshop license shall hereafter be granted to any person to keep a dramshop within five miles of any state educational institution which now has enrolled fifteen hundred or more students." The act applied only to the state university, and was held unconstitutional. A simple change so that the law would apply to any state educational institution of the size in question