The record-union., 1891-02-19
CLEARLY UNCONSTITUTIONAL.
General Harris Views on the Amend
ment to the Electric Railway Bill.
There Shall Not Be Special Legisla-
ton Where General Law Can
be Made Applicable.

| At the request of Senator Eli s. Denni-
son, Attorney-General Hart rendered an
opinion yesterday, giving his views on
the constitutionality of the amendment
proposed to the electric railway bill, pro-
viding that municipal corporations of the
first class must not allow poles or over
head wires to be put up.
| Mr. Hart decides that this amendment
is clearly unconstitutional, and if passad
would be imperative. He says:
| am in receipt of your communication
requesting me to give my opinion, as At
! torney-General, as to whether or not the
proposed amendment, to wit: Adding to
Section l; provided, however, that in
municipal corporations Of the first-class
| permission must not be granted to erect
or maintain poles in or along any street,
or to erect, maintain, use or operate
therein overhead yWires, offered in the
Senate to Section ! of Assembly Bill No.
ia, AS passed by the Assembly, is con-
stitutional. In reply / will say:
Section 497 of the Civil Code as amended
by Assembly Bill No. ia, as passed by
the Assembly, is intended to be- and
when passed by the Senate and signed by
the Governor will be, general law, and
| the provisions therein contained or re-
terred to are, and the subject-matter re-
>. u
nature and by necessity
| MUST HAVE UNIFORM OPERATION
Throughout the State. In my opinion of
| yesterday to Hon. Z. F. Bert, member of
the Assembly, / had occasion to discuss
and refer to the power of the Legis-
| lature to pass special laws, to which opin-
ion | refer. l desire to call your atten-
ton in connection with the question now
under consideration to Section 25 of
Article ". of the Constitution, which
provides:
"The Legislature shall not pass local or
special laws in any of the following
enumerated cases, that is to say: Here
follow thirty-two imitations.l
'33 In all other cases where a general
law can be made applicable"
Article |. of the Constitution pertains
to the declaration of rights, and Section
ii of that article provides:
Section IL. All laws of a general
nature shall have uniform operation"
Assembly Bill No. ia, as passed and
now under consideration, is
INTENDED TO BE A GENERAL LAW,
And is certainly law 'of q general
nature" and therefore it "should haze a
uniform operation"
Section %, Article l., of the Constitution
provides:
'Section %. The provisions of this
constitution are mandatory and prohib-
itory, unleSS Dy express words they are
declared to be otherwise"
Ii the proposed amendment above
quoted is permissible under the Constitu-
ton, then we have the following state of
facts:
That the Legislature may pass general
law, which applies to the whole State,
and at the same time place limitation
upon the law as to municipal corpora
tions OF the first class. Ifby proviso
you can withdraw from operation of
general law a municipal corporation of
the first class, you can also make pro-
vlso to cover two or more classes of mu-
niclpal corporations, and if you can ex-
cept two or more you might except all
MUNICIPAL CORPORATIONS
OF every class but one; hence indirectly
pass special laws as to the one class not
excepted. If you gan do this, then you
might except from the operation of gen
eral law municipal corporations of every
class but one, thereby defeating the OBJ
ject of the Constitution, which says there
shall not be special legislation where
general law can be made applicable.
l am of the opinion that the amend
ment offered in the Senate to Assembly
Bill No. ia is clearly and unqualifiedly
unconstitutional, and if passed would be
imperative; that is, the proviso or
amendment would be void.