OPINION OF THE COURT.
MECHEM, J.—(After making .the foregoing statement of facts, delivered the opinion of the court.)
The question presented here for determination is, did the legislature by the proviso contained in the Act of 1907, legislate locally and specially as to the treasurer or the County of Bernalillo? If this question is to be answered in the affirmative, then the proviso is null and void and of no effect, as coming within the prohibition enacted by Congress, against the passage of local and special laws by territorial legislatures, decreasing the fees and percentages of a public officer during his term of office.
The following facts appeared from public records at the time the act was passed:
(a) That the County of Bernalillo was the only county in the Territory which would fall within Class “A” for the year 1907.
(b) That by the law as it stood the treasurer of Bernalillo County would receive an annual compensation for the year 1907 more than $4,500.00.
(c) That by the Act of'1907 as put in immediate effect as to Class “A” the fees and percentages of the treasurer of Bernalillo County would be decreased during the term of office to which he was elected.
(d) That the county treasurers of the Counties of Grant, Chaves, Colfax and San Miguel would during the year of 1907 receive fees and percentages in excess of $4,500.00 and that their compensation would not be affected by said proviso contained in the Act of 1907 aforesaid.
1 The effect and not the form of the law determines its character as to whether it is general or local and special. 26 Am. & Eng. Ency. 687.
The effect of this Act was that it was applicable to the County of Bernalillo and could be only applicable tó said county, for the year 1907. ' .
A local act is defined to be “one operating only within a limited territory or specified locality.” People v. Chautauqua County, 43 N. Y. 10.
“Where a statute applies to’ and operates only in a certain locality in a state, it may be said to be both special and local. Local because it, i.s confined in its operation to •a particular locality; and .special, both because it is confined in its operation to that locality and to the people of that locality.” Sutherland on Statutory Construction, Sec. 1275.
The act by making the collections of 1906, then ascertained, the basis of the classification, and that classification so that no other county but Bernalillo could fall within Class “'A” for the year, 1907, and the proviso making the law immediately applicable to Class “A,” the law could then operate only in the County of Bernalillo and was confined in its operation to that county and to the treasurer and assessor of that county.
Had the proviso contained the name of (Bernalillo County instead of “Counties of Class CA’ ” it could not have *more clearly singled out that county as the one county in the Territory in which the law waa alone to take effect; neither does it make any difference that the proviso made the act applicable to Counties of Class “A” as such. This for'the reason that’ in making the limitation of $4,500.00 per annum applicable to the compensation of all the county treasurers, the legislature in effect disavowed any classification, for it is evident that if there were several counties in which treasurers had received and would receive compensation in excess of $4,500.00 yearly, the legislature in fixing the maximum of compensation in all of such counties could only have done so on the ground that none of such counties were possessed of those distinguishing characteristics calling for different legislation; or to put it differently, that such counties by their similarity of relation to the legislative purpose were subjects of general and not special legislation. 26 Am. & Eng. Ency. 683.
II. As to the classification contained in the body of the act, it is not necessary, in view of the case we take, to decide whether as a classification it was good or bad.
We are concerned with the proviso making that general classification apply to one county.
The legislature was evidently of. the opinion that in eleven out of the twenty-five counties of the Territory, the treasurers were being overpaid and by the classification the compensation of the treasurers in said eleven counties was reduced from 50 per cent to 10 per cent, but the proviso reduced the compensation of the treasurer of Bernalillo County by 50 per cent and as to the other over-paid county treasurers, the act was suspended until their terms of office should expire.
This court in the case of Codlin v. Kohlhousen, 58 Pac. 499, 9 N. M. 565, speaking through Justice McFie said: “There must be a substantial distinction, having reference to the subject matter of the proposed legislation, between the places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree at least, account for or justify the restriction of the legislation.”
2 Measured by this rule we find that: “the subject matter of the legislation” was a reduction of the fees and percentages of almost half of the county treasurers of the Territory. That there were no marks of distinction between the classification of counties of “A” and “B” elasses except in the amount of reduction made; such a distinction, however would not account for or justify putting the classification into effect in Class “A” and suspending it as to the other classes. In other words, there was no distinction “so marked as to call for separate legislation.” Lewis Sutherland Stat. Cons. 369.
The Supreme Court of California in Miller v. Kester, 8 Pac. 813, dealt with what appears to be the question, now under consideration. . A law was passed classifying the counties/ of the state into forty-eight different classes with respect to the salaries of county officers, and like our statute, suspended the operation of the law in forty-five of the classes until after the expiration of the terms of the three county officers, but put it into immediate effect in three of the classes.- The court held the sections of the Act which put it into immediate operation in three specifield classes to be a special law as to the counties included therein.
The judgment of the lower court is right and is affirmed.
Justice Wright having been appointed since the submission of the ease did not participate in this decision.