concurring:
While I concur in affirming the decree in this case, the opinion of the majority seems to me, in several respects, so far at variance with certain of our former decisions and with the thought heretofore expressed by this court, that I deem it best to put my views upon record.
I agree that the Act of May 3, 1909, P. L. 417, is a reasonable exercise of the police power; that the legislature may enact any local or special law not expressly prohibited in the constitution; that classification must be for municipal purposes, and that where the constitutionality of an act depends upon the theory of classification, the act itself must make the classification or the subject of the act must be within the sphere of an established classification. But I cannot agree that the subject-matter of this act is not within the sphere of established classification; and in this connection I cannot subscribe to the restricted meaning given to the word “affairs” in the majority opinion.
The constitution 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.” The Act of June 25, 1895, P. L. 275, classifies cities, inter alia, for “the purposes of legislation, regulating their municipal affairs.” Under this act, without any further special classification, the general assembly may legislate on matters concerning the municipal affairs of the subdivisions as therein classified, and such an act would be general and not local: Wheeler v. Philadelphia, 77 Pa. 338.
The word “affairs” in the constitution and in the classification act should be given the same construction, and it should not be a narrow one. Mr. Buckalew in his book on the constitution, at p. 72, says: “In the Pennsylvania provision the word 'affairs’ is the important one to be examined. It was obviously borrowed from the two constitutions which were in 1873 of most recent formation, in which it was made to supply the place of the word ‘business’ found in the earlier constitutions above mentioned. *384This substitution of a French word for a Saxon word— ‘affairs’ for ‘business’ — was probably made in consequence of judicial opinions which had assigned a somewhat restricted effect to the word ‘business’ as found in the earlier constitutions, and was intended to give the prohibition upon local legislation a more extended application.” In Morrison v. Bachert, 112 Pa. 322, the lower court defined “affairs of counties” to be such “as concern counties in their governmental and corporate capacity.” On appeal we said: “This will not do. It is too narrow a construction. . . . When it (the constitution) speaks of the affairs of a county, it means such affairs as affect the people of that county;” and we there cite with approval the excerpt just quoted from Mr. Buckalew’s book. In Frost v. Cherry, 122 Pa. 417, after citing Morrison v. Bachert, 112 Pa. 322, for a definition of the word “affairs,” we held the act there in question unconstitutional as local legislation, saying, “The act .... concerns the great body of the people of the county. It affects every farmer, .... and every person who keeps horses or cattle. . . . How then can it be said that it does not relate to the ‘affairs’ of counties within the meaning of the constitution? ”
The thought running through our cases seems to be that if the subject-matter of an act would naturally fall within local control, that is, if it is a subject which, in the absence of state legislation controlling the matter, a local governing body could regulate by ordinance, or be given the power so to do, it is a municipal affair: Reeves v. Phila. Traction Co., 152 Pa. 153; Van Loon v. Engle, 171 Pa. 157; Anderson v. Township, 217 Pa. 369. To my mind the present act is one dealing with such affairs, and, by the exclusion of cities of the first and second classes, unless saved by classification, it offends the constitutional restriction against local legislation. The question is, Does the act lose its local character by reason of classification? In other words, it being within the power of the general assembly to legislate for cities in matters connected with their municipal affairs to the exclusion of the rest of the *385state, can they so legislate for the whole state excluding one or more classes of cities?
It might have required considerable exposition of thought to state satisfactorily an answer to this question were it not for our decision in Rose v. Beaver County, 204 Pa. 372, affirming 20 Pa. Superior Ct. 110, where Judge Beaver said: “The objection to the bill that it is not general in its application is not well founded. It relates to every county within the state. It is true that it excepts cities from its operation, but if the legislature has power to legislate for the government of cities and provide affirmative legislation for their particular needs, and not only so, but to legislate for the several classes of cities, how much more should it have power to except cities in general from the operation of laws which are not applicable to their peculiar needs? ” It will not do to dismiss this case from our consideration. The contention may be made that we could have laid down a different rule, but we have there given our express affirmance to the view that under the classification act, upon permissible subjects, cities may not only be legislated for to the exclusion of the rest of the state, but the rest of the state may be legislated for to the exclusion of cities. That decision is binding upon us until expressly overruled. The attempted distinction that “the difference between that case and the one now before the court consists in the fact that here all the cities are not excluded from the legislation” is not a valid one, for cities being classified, each class is just as much a whole for purposes of general legislation as the sum total of all the classes; if all of them can be excluded, then any one or more of the classes can be excluded. In the present instance, the legislature might well have considered that the matter covered by the act required different regulation in small cities and rural communities than in the large cities.
In view of our decision in Rose v. Beaver County, supra, I cannot agree with the statement in the majority opinion that the act “is local because cities of the *386first and second classes are permanently excluded from its operation.” In my opinion, under our ruling in that case, the act can be supported as general legislation, and we should rest our decision upon that ground. It is true, we have declared acts unconstitutional. as local legislation where they contained a proviso making them inapplicable to counties having a population of over a certain number (Davis v. Clark, 106 Pa. 377), saying that such legislation could not be sustained upon any rational theory of classification,, because in point of fact it made no attempt at classification but merely at exclusion: Morrison v. Bachert, supra. But that line of authorities is to be distinguished from the present case by the fact that the legislature has never taken counties out of the general whole and classified them for purposes of legislation; whereas cities have been so classified, and the classification has been upheld: Wheeler v. Philadelphia, supra.
The vice of the majority opinion is that by the circumscribed meaning" placed upon the word “affairs,” the operation of the provision of the constitution restricting the passage of local laws regulating the affairs of communities is unduly limited. If the majority view is adhered to, in my judgment it will tend to fritter away that most important provision and lead to future abuses. The fact that the enforcement of the provisions of an act is committed to state officers should not be given any controlling effect in deciding whether or not it deals with municipal affairs within the meaning of the constitution or the classification act. The act of 1895 gives several headings under which cities are therein classified for the purposes of legislation, of which the first is, “regulating their municipal affairs,” then, “the exercise of certain corporate powers,” and next, “having respect to the number, character, powers and duties of certain officers thereof.” The first takes in all matters such as we have before defined as comprehended within the term, “affairs,” while the others cover what may be strictly termed “governmental matters,” to be worked out through of*387ficials of the communities. If the general assembly sees fit to legislate on a subject which would fall strictly within the term “municipal affairs,” the fact that it puts the enforcement of the law in the hands of state officers will not change the character of the act. It still remains one regulating the affairs of communities and subject to the restraint against local legislation, unless saved by classification. If this be not so, then, notwithstanding the prohibition in our organic law, the home affairs of each community can be interfered with by purely local acts to be' administered by state officers. This is the end to which the reasoning of the majority leads, and it is one of the very evils thought to have been abolished by the constitution.
In the respects indicated I cannot agree with the majority, but, for the reasons stated in this opinion, I join in the final order affirming the decree of the court below.
Mb. Justice Stewart joins in the above concurring opinion.