dissenting:
If this act were not clearly in conflict with the fundamental law, or if the consequences to which the judgment may lead, were not deplorable, or, if it affected only the immediate parties to it, and would not serve as a precedent for future cases, I would not feel myself called upon to dissent of record. But all these reasons exist, and it is not without regret that I feel constrained to express a decided dissent from the judgment.
To my mind this act is palpably unconstitutional because it violates section 7, article 8 of that instrument, which section is as follows:
“ The general assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts; . . . . incorporating cities, towns, or villages, or changing their charters, .... creating offices or prescribing the powers and duties of officers hi counties, cities, boroughs, townships, election or school districts.”
The act before us affects but three cities in the commonwealth, Pittsburg, Allegheny and Scranton. It does not touch Philadelphia city, nor any one of the many other cities of the state; nor is there a single provision • in it for any city which may hereafter reach the population of these three cities. It applies specially to these three; changes their charters; puts them under special provisions different from all other cities; to all intents and purposes for a long period governs them by a high executive officer of the commonwealth, resident at Harrisburg, many miles distant, necessarily ousting local officers elected by the people, whose terms have not yet expired. There is nothing peculiar in the geographical location of these cities, or in the character of their population, or business interests, which calls for peculiar legislation such as this ; nor is it intimated in the bill, that any reason existed for depriving them of self-government and subjecting them to a foreign one, that would not apply to every'other city in the state. It is given as the controlling reason in the majority opinion for declaring the act constitutional, that nowhere does that instrument expressly forbid such legislation, and therefore, not being expressly forbidden, the legislature has all power not withheld. This proposition has been stated more than once in like languagé by courts when discussing constitutional questions ; and while *559the facts in the cases before them did not render the language inapplicable, it was never intended to be of universal or even of common application. It is conceded by all that the main reason for calling the constitutional convention of 1873 was to devise some means by which the annual flood of local legislation should be stopped; local laws were being passed every year for every imaginable selfish and sordid purpose without the least regard for the public good; the legislature was demoralized ; the people were becoming debauched.
That convention, after most careful deliberation, adopted article 3, in which occurs section 7, heretofore quoted. If enforced, it created an effectual barrier against the evil. Many attempts were made to evade it in the legislature immediately following its adoption, and many acts were either vetoed by the governor, or declared invalid by the courts because of its violation.
But there came before this court the act of May 23, 1874, (see Wheeler v. Philadelphia, 77 Pa. 338), which divided the cities of the state into three classes for the purpose of corporate legislation, and which authorized the legislature, by general laws applicable to each class, to legislate only for the cities of that class. I always doubted the authority of this court to uphold this act; the reasoning in vindication of the judgment is not satisfactory or convincing; it is based upon the necessity for classification because of the inconvenience that would result if classification of cities was not held constitutional. It seems to me to be judicial legislation of the gravest character; it wrote into the constitution what was not there, and was not intended by the framers of it to be there. While I admit the inconvenience of enforcing strictly article 3 in all its provisions, it was but a temporary inconvenience, which could have been and should have been remedied by an amendment to the constitution, according to the method pointed out in it, and not, practically, by an amendment adopted by this court. The court gave way, and more than once since it has been placed in the same dilemma as it was on the question of retroactive legislation, discussed by Chief Justice Gibson in Greenough v. Greenough, 11 Pa. 489, where lie says:
“But retroactive legislation began and has continued because the judiciary has thought itself too weak to withstand. *560.... Yet had it taken its stand on the ramparts of the constitution at the outset, there is some little reason to think it might have held its ground. Instead of that, it pursued a temporizing course till the mischief liad become intolerable, until it was compelled to reverse certain acts of legislation.”
The court, out of a tender regard for the doings of a co-ordinate branch of the government had yielded ti me after time to encroachments upon the judiciary department, until in Norman v. Heist, 5 W. & S. 171, and in Greenough v. Greenough, supra, it was confronted by acts which, in effect, took from one man his land and gave it to another. This was a little too much for the court to stand. So it stopped just there, with the keen regret expressed by Chief Justice Gibson that it had not stopped sooner. In a very short time the whole series of retroactive laws were, in effect, swept from the statute book by the very court which had at first upheld them. By our decision in the case before us, we are going a step beyond anything heretofore allowed in the line of special legislation. It is purely a question of law whether section 7 of article 3 of the constitution has been violated, yet, we in effect say, it is the province of the legislature to decide the question and that we will not inquire into it. This, on our part, is a grave mistake. I would not encroach one inch on the authority of the legislature, but I would not allow that body, nor the executive, to encroach one inch on ours. We have now before us an act which, it is true, does not take one man’s land and- give it to another, but it does take from one set of men the offices given them by the people, hands them over to the governor, that he may confer them on others. Here we should call a halt upon such unconstitutional usurpation of power. What the next step in this direction will be we can only conjecture ; factional politics and partisan politics are not troubled by scruples; under the principle of this decision there is nothing to hinder a hostile partisan majority in the legislature from ousting the party in power in Philadelphia, a city of the first class, and placing its government in possession of the minority. The time is not very remote in the past, in English politics, when the victorious political party, as soon as it was seated in power, promptly proceeded to cut off the physical heads of their leading antagonists and confiscate their property; it is not very remote in the future *561when the victorious political party will promptly proceed to cut off the political heads of its opponents where they hold office by the municipal votes of cities.
But to continue the judicial history of section 7, of article 8: Wheeler v. Philadelphia allowed classification; the law opened the gate, and we were time and again confronted by acts which, under the guise of general legislation, sought to evade the inhibitions of article 3.
In Ayars’s Appeal, 122 Pa. 266, we were forced to say: “Subsequent legislation (that is, subsequent to Wheeler v. Philadelphia) clearly indicates that the scope of the decision in Wheeler v. Philadelphia was either misunderstood or ignored. It was never intended to license indiscriminate classification as a mere pretext for the enactment of laws essentially local or special.”
We held in Scowden’s Appeal, 96 Pa. 422, that classification not grounded on an imperious necessity, was special legislation, and would be stricken down. Hence, when the legislature undertook to increase the classes to five, afterwards to seven, we declared the acts unconstitutional, because such increase was without the slightest foundation in necessity. This court, after having decided that necessity warranted three classes, soon found itself forced to decide that it warranted no more. It was thus in the inconsistent position of acknowledging the authority of the legislature to determine the necessity of three classes, but denying its authority to say that more than three were necessary. This was plainly passing on the merits of the acts, when it was attempted to increase the classes. And I do not disclaim the power or wisdom of the court in so doing after it had acknowledged the authority of the legislature to classify at all, in the total absence of such authority in the constitution. It was bound to prevent the abuse of its own decision.
What I object to here is, that the majority of the court disclaim the right to inquire into the purposes of this act, because it is sanctioned by the ostensible legality of general legislation for a class. More than thirty cases followed Wheeler v. Phila' delphia, wherein the distinction between local and general legislation was involved. Not only was the question of the necessity for classification discussed, and the judgments determined by inquiry into the merits of the acts, but in Scranton School *562District’s Appeal, 113 Pa. 176, in Philadelphia v. Haddington M. E. Church, 115 Pa. 291, and in Weinman v. Wilkinsburg, etc., Pass. Railway Company, 118 Pa. 192, the merits of the pretended general legislation for a class were inquired into and the acts pronounced unconstitutional. In the first named case we said:
“ All our recent decisions are to the effect that if local results either are or may be produced by a piece of legislation, it offends against the article prohibiting local and special legislation.” .
It is too late, after these decisions, to disclaim our judicial power to inquire, whether the act before us is an adroit attempt to evade the constitutional prohibition against local and special legislation. From its very terms it touches no subject which is not common to every other city in the commonwealth, and if there be a necessity for such legislation in these three cities, then there is the same necessity in all the others. This fact of itself stamps it as local and special legislation, for as is said in Ayars’s Appeal, supra, there must be a necessity for the legislation “ springing from manifest peculiarities, clearly distinguishing those of one class from each of the others.” No peculiarities in cities of the second class demanding such a law are even pretended. Every member of this court concedes that this legislation is vicious. Why? They do not answer; but, to my mind, it is apparent that its vice consists in its flagrant violation of the fundamental law. We know its purpose was to oust one set of municipal officers in three certain cities, put in place, either directly or indirectly, by the people, and give their offices to others, through the chief executive of the state. This is the inevitable result from the bill itself. Can we assume that our lawmakers do not intend the obvious, results of their acts ?
It will be noticed that I have given no attention to the many objections of appellants to the details of the bill; it is argued that each one of them is fatal; this may be correct; I will not pass upon them without a thorough examination. I place my dissent upon the broad ground that it is local and special legislation under the guise of a general law, therefore, is in direct violation of section 7, article 3, of the constitution. The majority opinion is, in the main, based on the authority of the *563legislature to pass a general law for a class and a disclaimer of our authority to inquire into the merits, to ascertain whether the law was intended to be, and is in fact, a local and special law in its results. I concede, there is no express prohibition in the constitution forbidding such legislation if it be in general terms a general law, but, if it be only in terms general, nevertheless, in intent and results, special, then its unconstitutionality is a necessary implication, and we are not shut off in our inquiry by general terms. The argument to sustain the act because of no express prohibition in the constitution must fail in face of the plainly implied one.
In Commonwealth v. Zephon, 8 W. & S. 386, it is held: “ A constitution is not to receive a technical construction like a common-law instrument or statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.”
In Page v. Allen, 58 Pa. 338, Justice Thompson, in expressing the opinion of the court, says : “ It is usual on the part of those who insist on the constitutionality of any given statute, to claim that it must be regarded as constitutional, unless expressly prohibited by some provision in the constitution. In other words, in construing the constitution of the state, whatever is not expressly denied to the legislative power is possessed by it. The opposite of this rule, I may remark, is the construction of the federal constitution. I assent to this, but not that the inhibitions of the constitution must be always express. They are equally effective, and not less to be regarded, when they arise by implication, and this is the case when the legislative provision is repugnant to some provision of the constitution.” There are many other authorities to the same effect.
I fear the time is not far distant when the pernicious results of our decision will either bring about a constitutional enactment to remedy the mischief, or move us to overrule it.
We concur in the foregoing dissent.
McCollum, C. J., and Mestbezat, J.