
    Sieber, Appellant, v. County of Juniata.
    
      Constitutional law — Counties with population of 70,000 or less— Act of July 17,1919, P. L. 1001 — Unconstitutionality.
    The Act of July 17, 1919, P. L. 1001, fixing the fees for prothonotaries in counties having a population of less than 70,000 inhabitants, although general in form, is a local statute regulating county affairs and, therefore, is in violation of article III, section 7, of the Constitution of Pennsylvania which prohibits the passage of any local or special law regulating the affairs of counties.
    A statute applicable to counties only of a specified population will be construed to be local and special when the subject-matter of the statute has no relation to the population of the counties.
    Argued March 14, 1922.
    Appeal, No. 6, March T., 1922, by plaintiff, from judgment of C, P, Juniata Co:, Sept. T., 1920, No. 50, in favor of defendant on case stated in the suit of Samuel C. Sieber v. County of Juniata.
    Before Orlady, P. J., Porter, Henderson, Keller and Linn, JJ.
    Affirmed.
    Amicable action and case stated to recover from tbe County of Juniata tbe gum of $20 for four days’ attendance at court by plaintiff, as prothonotary of Juniata County, under tbe Act of July 17,1919, P. L. 1001. Before Barnett, P. J.
    Tbe court entered judgment in favor of tbe defendant in tbe following opinion:
    In an amicable action and case stated tbe plaintiff, wbo is tbe protbonotary of Juniata County, claims under tbe Act of July 17,1919, P. L. 1001, to recover of tbe defendant tbe sum of $20 for four days’ attendance at court. Tbe defense is that tbe act is void because in violation of article III, section 7, of tbe Constitution of Pennsylvania.
    Section 1, of tbe act provides that “in all counties having population of less than seventy thousand inhabitants, tbe protbonotary of tbe court of common pleas shall receive a fee of five dollars for each day of bis attendance in court; which fee shall be paid by tbe county.”
    Article III, section 7 of tbe Constitution forbids tbe general assembly to pass “any local or special law____ regulating tbe affairs of counties, cities, townships, wards, boroughs or school districts.”
    A statute fixing tbe fees of county officers is a “law regulating tbe affairs of counties” within tbe intendment of tbe Constitution: Morrison v. Bacbert, 112 Pa. 322; Pbila. Co. v. Sheehan, 263 Pa. 449. Tbe constitutionality of tbe act in question depends upon whether or not it is a local law.
    In Davis v. Clark, 106 Pa. 377, tbe Supreme Court, referring to an act of assembly which excluded from its provisions counties having over two hundred thousand inhabitants, said: “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 principle 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.”
    A proper classification may save an act otherwise void as local legislation. The case last cited continues: “Within reasonable limits and for some purposes classification is allowable. It has been sustained on the basis of population of counties on the assumption that those having a small population, may ultimately have one much larger. Here the larger are excluded. We cannot assume that their population will ever be reduced to less than the number named. They are therefore practically and permanently excluded by the intent and purpose of this act, which is special in its terms and local in its effect.”
    The classification which will permit legislation for a part of the Commonwealth to the exclusion of the remainder must be based upon a genuine distinction. “Where there is any indication that classification is purely artificial and without necessity it cannot be sustained” : Phila. Co. v. Sheehan, 263 Pa. 449. “It was never intended to license indiscriminate classification as a mere pretext for the enactment of laws essentially local or special......Classification which is grounded on no necessity and has for its sole object an evasion of the Constitution will not be encouraged......The underlying principle of all the cases is that classification, with a view of legislating for either class separately, is essentially unconstitutional, unless a necessity therefore exists, — a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding législation for each class, separately, that would be useless and detrimental to the others”: Ayars’s Appeal, 122 Pa. 266. “And in general with reference to public matters and legislative usage, necessity means great or urgent public convenience”: Com. v. Gilligan, 195 Pa. 504.
    So far as compensation to county officials is concerned, the Constitution has classified the counties of the State: Morrison v. Bachert, 112 Pa. 322; and a further attempt in that direction is not permissible: McCarthy v. Com., 110 Pa. 243. This classification is contained in article XIY, section 5 of the Constitution, which reads: “The compensation of county officers shall be regulated by law, and all county officers who are or may be salaried shall pay all fees which they may be authorized to receive, into • the treasury of the county or State, as may be directed by law. In counties containing over one hundred and fifty thousand inhabitants all county officers shall be paid by salary, and the salary of any such officers or his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by him or for him.” The power of the legislature to subdivide the constitutional classes of counties is recognized in Rymer v. Luzerne County, 142 Pa. 108, but only where the law applies to all counties of a constitutional class.
    In the case of Phila. Co. v. Sheehan, 263 Pa. 449, the law under consideration was the Act of July 21, 1913, P. L. 878, fixing the salary of the register of wills in counties having a population of one million, five hundred thousand at $10,000 a year. In discussing the question of the necessity for special legislation for the class of counties indicated the Supreme Court said: “If the subject-matter of the act has no relation to the population of the counties, then the act will be construed to be local and special: Davis v. Clark, 106 Pa. 377......It cannot be said that there are any manifest peculiarities relating to the County of Philadelphia, in so far as they affect the compensation of the register of wills, to distinguish it from other counties of the State......If there is no compelling necessity for the enactment of a law relating to a single county of the State and it is obvious, as it is in this case, that it was passed for the sole purpose of evading the Constitution, it is the duty of the court to declare the act invalid.”
    According to the census of 1920 the act of July 17, 1919, applies to thirty-six counties of the State, which have a population of less than seventy thousand, while thirty-one counties, having a greater population, are permanently excluded from its operation. It does not follow the classification of article XIY, section 5, of the Constitution applying to about two-thirds, and omitting from its provisions about one-third of the counties of the second constitutional class. It ignores the classification of counties attempted by the legislature in the Act of July 10,1919, P. L. 887. Prothonotaries as other county officers are to be paid by salary in counties of the first constitutional class. Those counties might therefore properly be excluded from the act. But what manifest peculiarities can be pointed out to distinguish counties of less than seventy thousand population from those having more than seventy thousand and less than one hundred and fifty thousand inhabitants, to prove that the one class demands legislation on the subject of prothonotary’s fees that would be useless and detrimental to the other? There is certainly no compelling necessity for the distinction which the act makes between counties comprised in the same constitutional class and lacking such necessity the attempted classification is purely artificial and cannot be sustained. It follows that the Act of July 17,1919, P. L. 1001, is a local law and therefore unconstitutional and void.
    And now, December 6, 1920, it is ordered that judgment be entered on the case stated herein in favor of the defendant and against the plaintiff with costs.
    
      Error assigned was the decree of the court.
    
      April 17, 1922:
    
      John J. Patterson, for appellant.
    
      Will L. Hoopes, for appellees.
   Pee Curiam,

The opinion filed in the court below, entering judgment for the defendant in the case stated, disposes in a satisfactory way of the only question raised by the assignment of error.

The judgment is affirmed.  