Roumfort Co. v. Delaney

Opinion by

Mr. Justice Elkin,

This proceeding was evidently instituted to test the constitutionality of the Act of May 3, 1909, P. L. 417. This act requires exits, fire escapes, fire extinguishers and fire preventatives for buildings of a certain character such as theaters, public halls and other places where persons assemble or the public resort. It was intended to afford greater protection from fire and resulting panic. It is in the nature of a police regulation and must be sustained, if at all, as a proper exercise of the police power. Appellant contends that it is an unreasonable exercise of the police power and should be declared invalid on this ground. We cannot accept this view of the provisions of the act. The subject-matter of the act and the means provided for protecting persons from great danger in cases of emergency are proper for police regulation. It is true the act might be enforced in such an arbitrary manner as to work hardship and do great injustice in some instances, but nothing of this kind appears in the present case. It will be presumed that officers intrusted with its enforcement will only require such reasonable compliance as the exigencies of each particular case demand. The act should be enforced in a spirit not to destroy the usefulness of property or to place undue burdens upon the owner, but only as a protection to such an extent as may be required in view of the situation of the building, having due regard to the use made of it. When so enforced there can be no valid objection on the ground of its requirements being unreasonable. That it will be so enforced may be presumed.

It is further contended that the act offends against art. Ill, sec. 7, of the constitution in that it is local legislation regulating the affairs of counties, cities, townships, wards, boroughs, or school districts. The position of appellant is that the act is local in its application because buildings located in cities of the first and second classes are permanently excluded from its operation. The exclusion of a single county from the operation of a general act relating to counties makes the act unconstitutional: Davis v. Clark, 106 Pa. 377. As stated by Chief Justice Mercuk in the case cited, “It was not, then, a general act, applicable to every part of the commonwealth. It did apply to a great number of counties; but there is no dividing line between a local and a general statute. It must be either the one or the other. If it apply to the whole state it is general. If to a part only, it is local. As a legal prin-. ciple it is as effectually local when it applies to sixty-five counties out of the sixty-seven as if it applied to one county only. The exclusion of a single county from the operation of the act makes it local.” This is the rule as the courts have laid it down. The permanent exclusion of cities or other municipal divisions from the operation of a general law is just the same in principle as the exclusion of counties. The act of 1909 tested by this rule is local unless made general by classification, upon which ground the learned court below sustained it. This can only mean that the act divided the state into classes for the purposes of this legislation because there is no existing classification to which its provisions can be made applicable without changing the whole purpose of the statute. Nothing contained in the act indicates an intention to create a new classification, and it does not relate to any existing classification except to exclude from its operation buildings located in two classes of cities. How, then, can it be said that the act either made a new classification, which it did not attempt to do, or that it is to operate upon certain municipal classes already created, which it does not do. It operates upon buildings of the character specified located in any and every part of the commonwealth except in cities of the first and second classes. To make it operative the building need not be located in a city, or borough, or other incorporated municipality. The building may be located in an unincorporated village, or in a mining town, or in a country school district, and if so, the act applies just the same as if the same character of building were located in a large borough or city. The operation of the act depends upon the character of the building and the use made of it and not upon the place of its location. The act operates without reference to any classification for municipal purposes and is not dependent upon any such classification. When. classification is relied on to sustain an act, it must appear, either that the act itself makes a class upon which its provisions operate, or that they operate upon an already existing class or classes. The act of 1909 does neither. As an illustration, the legislature has expressly authorized the creation of counties, townships, boroughs and school districts, each one of which municipal divisions constitutes a class upon which general laws operate. An act relating to county affairs and applying to all counties is a general law. So, too, an act regulating borough affairs and applicable to all boroughs is general legislation. The same principle applies to townships and school districts. Legislation affecting all cities is general, but by reason of varying local conditions and upon the ground of necessity the legislature deemed it wise to classify cities so that legislation of a municipal character might be passed for each class without disturbing other cities not requiring such legislation. The courts have sustained this classification for municipal purposes only. Hence an act relating to municipal affairs and applicable to cities of the first class, or to cities of the second class, or to cities of the third class, is held to be a general law because it operates upon each member of the class. It is important to bear in mind in this connection that in every instance the classification above mentioned resulted from positive affirmative legislation. Classification does not arise by implication. It is the result of express legislative enactment. In the present case the act of 1909 makes no attempt at classification. It is not a classification act and was not intended to be. From beginning to end it deals with buildings and the duties of state officers and has nothing to do with municipal classification. For these reasons we think the act does not lose its local character by reason of classification.

We, however, cannot agree with the learned counsel for appellant in the contention that the act regulates the affairs of counties, cities, townships, boroughs or school districts. If it did, being local, it would be unconstitutional. In what manner does it regúlate the affairs of counties or of any other municipal class? No one has pointed out how it regulates the affairs of any municipality and the act is silent upon the subject. It is true incorporated municipalities may adopt police regulations in reference to buildings of the same character, but in so doing they act under power delegated by the state. Under the constitution our police power is lodged in the commonwealth which may and frequently does delegate it to municipalities for certain purposes. The commonwealth, however, is not estopped from exercising its sovereign power directly if it chooses to do so. This is what was done in the present case. The act is a state regulation and its provisions are enforced by state officers. It does not impose upon any city, county, borough, or school district officer any duty to be performed nor any responsibility to be incurred. The words “counties, cities, townships, wards, boroughs or school districts,” do not appear in the act except as the phrase “other than buildings situated in the cities of the first and second classes” makes a reference to the two excluded classes of cities. The chief factory inspector and his deputies are empowered to enforce the law and the state pays all expenses of these officers. It is the direct assertion of the police power of the state through its own officers, and not through any county, city, township, or other municipal officer. Its enforcement does not depend upon any county, borough or municipal officer. It does not regulate the fees of any such officer nor does it have anything to do with the revenues of counties, cities or townships. It does not relate to the affairs of municipalities. The law would be a valid exercise of police power by the state itself and through its officers if there were not a single municipal division in the commonwealth. Under these circumstances how can it be successfully contended that the act of 1909 in any manner whatever regulates the affairs of cities, counties or townships? In every case decided by this court in which was involved the question as to an act being local or general, the statute then under consideration in some manner related to the affairs of the class to which it applied. In Montgomery v. Com., 91 Pa. 125, the act required school directors to levy and assess a tax for a certain purpose,- thus having to do with the affairs of a township. In Morrison v. Bachert, 112 Pa. 322, the Act of June 12, 1878, P. L. 187, was declared unconstitutional because it regulated and fixed the fees of county officers and was local in its application. In Frost v. Cherry, 122 Pa. 417, certain duties were imposed upon county commissioners in connection with the repeal of the fence law of 1700, 1 Sm. L. 13, the method provided for the repeal being such as to make the law local in its application. In Straub v. Pittsburg, 138 Pa. 356, the Act of June 14, 1887, P. L. 395, relating to certain powers conferred upon the guardians of the poor in cities of the second class was held to be a regulation of the affairs of such cities upon the ground that the care of the poor was a municipal function. But the act in express terms dealt with the duties of these officers and was therefore a regulation of their affairs. In Perkins v. Philadelphia, 156 Pa. 554, the act related to the officers composing the building commission of Philadelphia. There are many other cases in which the same question was involved but in each instance the act related to the duties of municipal officers, or to their fees, or to the revenues of the municipality, or to some other municipal function. There is nothing of this character in the case at bar. The act of 1909 imposes no duties upon any municipal officer; does not regulate their fees; does not provide for the levy and assessment of any tax; does not require the performance of any municipal function; and does not relate to an “affair” of any municipality. So far as the present case is concerned it does not matter whether the word “affairs” be given a liberal construction or a more limited interpretation. In any event it must relate to some kind of an “affair” of the municipality. The act of 1909 does not relate to any such affair. It, therefore, necessarily follows that this act does not regulate the affairs of a county, or city, or borough or other municipal division within the meaning of the constitution.

It is local because cities of the first and second classes are permanently excluded from its operation, but it does not regulate the affairs of municipalities and is therefore not within the prohibition of art. Ill, sec. 7, of the constitution. What, then, is the. situation? Section 8 of art. Ill provides for the enactment of local legislation but requires notice to be published in the locality to be affected for thirty days prior to the introduction of the bill into the general assembly. The act of 1909, although local for the reasons stated, was a proper subject for legislative action, provided notice by publication was given as required by the constitution. The presumption is that what the constitution requires as to publication was done.

The appellant further contends that the act violates sec. 8 of art. XVI of the constitution which prohibits the taking, injury or destruction of property for public use without just compensation. The answer to this position is that a proper police regulation requiring certain safeguards in buildings where people assemble does not constitute a taking, injury to, or destruction of, property for public use, within the meaning of the constitution.

It is also contended that the act violates sec. 7 of art. Ill of the constitution which provides that no law shall be passed “granting powers or privileges in any case, where the granting of such powers or privileges shall have been provided by general law.” This position is not well taken. It is a sufficient answer to say that no “powers or privileges” within the meaning of the constitution are granted by the act of 1909, and the clause in question has no application under the facts of the present case.

Upon the record here presented and for the reasons above stated, the assignments of error are overruled and the decree is affirmed at the cost of appellant.