Clear and hostile discrimination against | (Cotting v. Godard) 183 U. S. 79, 46 L. ed. particular persons and classes cannot be made. Bell's Gap R. Co. v. Pennsylvania, 134 U. 8. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533. Classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. Porter v. Charleston & S. R. Co. 63 S. C. 180, 90 Am. St. Rep. 670, 41 S. E. 108. A Texas statute very much like the one under consideration has been held unconstitutional. Gulf, C. & S. F. R. Co. v. Ellis, supra. Similar statutes in the states of Alabama, Mississippi, Michigan, Arkansas, Nebraska, Illinois, and West Virginia have been held unconstitutional. South & North Ala. R. Co. v. Morris, 65 Ala. 193; Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 641; Wilder v. Chicago & W. M. R. Co. 70 Mich. 382, 38 N. W. 289; St. Louis, I. M. & S. R. Co. v. Williams, 49 Ark. 492, 5 S. W. 883; Atchison & N. R. Co. v. Baty, 6 Neb. 37, 29 Am. Rep. 356; Frorer v. People, 141 Ill. 171, 16 L.R.A. 492, 31 N. E. 395; Braceville Coal Co. v. People, 147 Ill. 66, 22 L.R.A. 340, 37 Am. St. Rep. 206, 35 N. E. 62. 92, 22 Sup. Ct. Rep. 30; State v. Williams, supra; Davidson v. Jennings, 27 Colo. 187, 48 L.R.A. 340, 83 Am. St. Rep. 49, 60 Pac. 354; Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 641; Wilder v. Chicago & W. M. R. Co. 70 Mich. 382, 38 N. W. 289; Randolph v. Builders & Painters Supply Co. 106 Ala. 501, 17 So. 721; 8 Cyc. Law & Proc. p. 1139. No counsel appeared for defendants in error. Mr. Justice Brewer delivered the opinion of the court: The question in this case is the constitutionality of § 2 of an act of the state of South Carolina, approved February 23, 1903 (24 Stat. at L. 81), which reads: "Sec. 2. That every claim for loss of or damage to property while in the possession of such common carrier shall be adjusted and paid within forty days, in case of shipments wholly within this state, and within ninety days, in case of shipments from without this state, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: Provided, That no such claim shall be filed until after the arrival of the shipment or of some part thereof at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor *until the payment thereof. Fail-[76] Laws imposing heavy penalties on the laborer for violating a contract to labor, and imposing none on the employer, are unconstitutional. State v. Williams, 32 S. C. 125, 10 S. E. ure to adjust and pay such claim within the 876. There can be no certain remedy in the laws where the legislature may prescribe one rule for one suitor, or class of suitors in the courts, and another for all others under like circumstances, or may discriminate between parties to the same suit, giving one most unjust pecuniary advantage over the other. Parties thus discriminated against would not obtain justice freely, and without being obliged to purchase it. To the extent of such discrimination they would be obliged to buy justice and pay for it; thus making it a matter of purchase to those who could afford to pay, contrary to the letter and spirit of this provision. Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500. periods respectively herein prescribed shall subject each common carrier so failing to a penalty of $50 for each and every such failure, to be recovered by any consignee or consignees aggrieved, in any court of competent jurisdiction: Provided, That unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid: Provided, further, That no common carrier shall be liable under this act for property which never came into its possession, if it complies with the provisions of § 1710, vol. 1, of the Code of Laws of South Carolina, 1902." The difference between the value of the goods shipped and the freight charges, $1.75, Do the laws secure to an individual an and the amount of the penalty, $50, natuequal protection when he is allowed to come rally excites attention. The supreme court into court and make his claim or defense of the state held the section constitutional, subject to the condition that, upon a failure -a decision conclusive so far as the state to make good that claim or defense, the Constitution is concerned, and therefore we penalty for such failure either appropriates are limited to a consideration of its alleged all his property, or subjects him to extrava- conflict with the Constitution of the United gant and unreasonable loss? States. The shipment was wholly intraCotting v. Kansas City Stock Yards Co. state, being from Columbia, South Carolina, to McBee, South Carolina, and undoubtedly | of the statute, which reads: "An Act to Regulate the Manner in Which Common It is not an act leveled against corporations alone, but includes all common carriers. The classification is based solely upon the nature of the business, that being of It is contended that the equal protection of the laws, guaranteed by the 1st section of the 14th Amendment, is denied. The power of classification is conceded, but this will not uphold one that is purely arbi-a public character. It is true that no pentrary. There must be some substantial foundation and basis therefor. It is asserted that this is merely legislation to compel carriers to pay their debts within a given time, by an unreasonable penalty for any delay, while no one else is so punished, and that there is no excuse for such distinction. We have had before us several cases involving classification statutes, and while the principles upon which classifications may rightfully be made are clear and easily stated, yet the application of those principles to [77] the different cases is often attended with much difficulty. See, among others, on the general principles of classification, Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533, and of cases making application of those principles: Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep. 609, and cases cited in the opinion; Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897, 20 Sup. Ct. Rep. 819; Fidelity Mut. Life Asso. v. Mettler, 185 U. S. 308, 46 L. ed. 922, 22 Sup. Ct. Rep. 662; Farmers' & M. Ins. Co. v. Dobney, 189 U. S. 301, 47 L. ed. 821, 23 Sup. Ct. Rep. 565; Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 48 L. ed. 971, 24 Sup. Ct. Rep. alty is cast upon the shipper, yet there is some guaranty against excessive claims in that, as held by the supreme court of the state in Best v. Seaboard Air Line R. Co. supra, there can be no award of a penalty unless there be a recovery of the full amount claimed. *Further, the matter to be adjusted is on [78] peculiarly within the knowledge of the carrier. It receives the goods and has them in its custody until the carriage is completed. It knows what it received and what it delivered. It knows what injury was done during the shipment, and how it was done. The consignee may not know what was in fact delivered at the time of 638. the shipment, and the shipper may not know what was delivered to the consignee at the close of the transportation. The carrier can determine the amount of the loss more accurately and promptly and with less delay and expense than anyone else, and for the adjustment of loss or damage to shipments within the state forty days cannot be said to be an unreasonably short length of time. It may be stated as a general rule that an act which puts in one class all engaged in business of a special and public character, requires of them the performance of a duty which they can do better and more quickly than others, and imposes a not exorbitant penalty for a failure to perform that duty within a reasonable time, cannot be ad We are of the opinion that this case comes within the limits of constitutionality. It is not an act imposing a penalty for the non-judged unconstitutional as a purely arbipayment of debts. As the supreme court trary classification. of South Carolina said in Best v. Seaboard Air Line R. Co. 72 S. C. 479, 484, 52 S. E. 223, 225: "The object of the statute was not to penalize the carrier for merely refusing to pay a claim within the time required, whether just or unjust, but the design was to bring about a reasonably prompt settlement of all proper claims, the penalty, in case of a recovery in a court, operating as a deterrent of the carrier in refusing to settle just claims, and as compensation of the claimant for the trouble and expense of the suit which the carrier's unreasonable delay and refusal made necessary." This ruling of the supreme court finds support, if any be needed, in the preamble While in this case the penalty may be large as compared with the value of the small shipments are the ones which especialshipment, yet it must be remembered that ly need the protection of penal statutes like this. If a large amount is in controversy, the claimant can afford to litigate. But he cannot well do so when there is but the trifle of a dollar or two in dispute, and yet justice requires that his claim be adjusted and paid with reasonable promptness. Further, it must be remembered that the purpose of this legislation is not primarily to enforce the collection of debts, but to compel the performance of duties which the carrier assumes when it enters upon the discharge of The mere fact of classification is not sufficient; in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground,-some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155-160, 41 L. ed. 666, 668-670, 17 Sup. Ct. Rep. 255. The classification of freight bears no analogy to such discrimination between persons. Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 267, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900. If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of courts to so adjudge, and thereby give effect to the Constitution. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 290, 43 L. ed. 702, 704, 19 Sup. Ct. Rep. 465. A question of constitutional law cannot be disposed of by saying that the statute in question may be referred to what are called the police powers of the state. Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 558, 46 L. ed. 679, 689, 22 Sup. Ct. Rep. 431. Here the court refers to the police power in its more narrow and exact sense,-that is, the power to preserve and promote public morals, health, and safety,—and expressly Argued October 15, 16, 1907. Decided No- says that even such an exercise of the police IN vember 4, 1907. N ERROR to the Superior Court of the State of Massachusetts to review a conviction of a street railway company, on appeal from the First District Court of Bristol County, in that state, for refusing to transport school children at a reduced rate, exceptions having been heard by the Supreme Judicial Court and overruled. Affirmed. See same case below, 187 Mass. 436, 11 L.R.A. (N.S.) 973, 73 N. E. 530. The facts are stated in the opinion. Mr. Everett Watson Burdett argued the cause, and, with Mr. Joseph H. Knight, filed a brief for plaintiff in error: Arbitrary discrimination between persons or corporations is unlawful. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565. power is subject to constitutional limitations. If so, how much more subject to such limitations must be those broader exercises of the power inexactly called the police power, which is really and more exactly the general power of sovereignty to promote the general welfare. It is in the latter sense only that a statute such as that under discussion-which the Massachusetts court calls "a police regulation in the interest of education" can be termed a police regulation at all. This court has spoken of the constitutional limitation of the exercise of the police power, in its exact sense, in other cases in the same way as already quoted. Barbier v. Connolly, 113 U. S. 27, 31, 32, 28 L. ed. 923-925, 5 Sup. Ct. Rep. 357; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565. But certain exercises of the strict police power, that is, those involving a destruction, but not a taking, of property, may well be free of one constitutional guaranty; to wit, Hutchinson, Carr. 3d. ed. § 521, p. 568; Rorer, Railroads, 1372; Tift v. Southern R. Co. 123 Fed. 789. that property shall not be taken without to abandon it and charge the legal rate,― just compensation. The abatement of nui- that is, the reasonable rate,-which, theresances, the destruction of buildings to check fore, must always be presumed to be the the course of conflagrations, the burning of existing rate. gambling paraphernalia, the spilling of intoxicating liquors, the prohibition of the use of buildings for illegal purposes, and like cases, suggest themselves as instances of the exercise of the police power free of the obligation to make just or any compensation for the property destroyed or put out of use. Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. 929; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989. If otherwise valid as a police regulation, the statute is partial and unequal in its aplication, and is therefore invalid. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 159, 41 L. ed. 666, 669, 17 Sup. Ct. Rep. 255; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30. The right to the equal protection of the laws is a right which preceded the adoption of the Constitution, and does not depend for its existence upon that instrument. When it guaranteed to all citizens the equal protection of the laws it was merely declaratory of a fundamental and inalienable right of every citizen of a free republic. United States v. Cruikshank, 92 U. S. 542, 555, 23 L. ed. 588, 592. The statute prescribes that the rate to be charged for public school children shall be one half the regular rate. The regular rate of a common carrier must be a reasonable one. Such is the universal rule derived from the common law. This court has referred to it as "that rule which is as old as the existence of common carriers,-to wit, that rates must be reasonable." Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 479, 494, 42 L. ed. 243, 251, 17 Sup. Ct. Rep. 896. The statute, therefore, in effect prescribes that public school children shall be carried at one half the reasonable rate, and hence on its face deprives the transportation company of its service, that is to say, its property, without just compensation. It is no answer that the regular rate charged by the particular company may, for the time being, be unreasonably high, the public may at any time refuse to pay that rate, and by appropriate proceedings compel the company 112 with Mr. Fred T. Field, filed a brief for deMr. Dana Malone argued the cause, and, fendant in error: Since the decision of Munn v. Illinois and the railroad cases, decided at the same time (94 U. S. 113, 24 L. ed. 77 et seq.), the law has been settled that a state has power to limit the amount of charges by railroad companies for the transportation of persons or property within its own juris diction. Ruggles v. Illinois, 108 U. S. 526, 27 L. mission Cases, 116 U. S. 307, 29 L. ed. 636, ed. 812; 2 Sup. Ct. Rep. 832; Railroad Com6 Sup. Ct. Rep. 334, 388, 1191; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct. Rep. 1028; Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377, 9 Sup. Ct. Rep. 47; Chicago & G. T. R. Co. v. WellCt. Rep. 400; St. Louis & S. F. R. Co. v. man, 143 U. S. 339, 36 L. ed. 176, 12 Sup. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. 42 L. ed. 819, 18 Sup. Ct. Rep. 418; LouisCt. Rep. 484; Smyth v. Ames, 169 U. S. 466, ville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. ed. 298, 22 Sup. Ct. Rep. 95; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900. to be reasonable, or, rather, not so unreasonA rate or schedule of rates is presumed able as to be repugnant to constitutional provisions, and the burden of proof is upon the railroad company to show the contrary. Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 173, 44 L. ed. 417, 20 Sup. Ct. Rep. 336; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 695, 43 L. ed. 858, 863, 19 Sup. Ct. Rep. 565; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 264, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900. The 14th Amendment is not violated by the subjecting of a corporation to the general laws in force at the time of its incorporation. See Capital City Dairy Co. v. Ohio, 183 U. S. 238, 247, 46 L. ed. 171, 176, 22 Sup. Ct. Rep. 120. A state may properly impose such a restriction as that contained in Mass. Rev. Laws, chap. 112, § 72, as a condition upon which it grants a franchise. Baltimore & O. R. Co. v. Maryland, 21 Wall. 456, 22 L. ed. 678; Ashley v. Ryan, 153 U. S. 436, 38 L. ed. 773, 4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep. 865; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 40 L. ed. 849, 16 Sup. Ct. Rep. 714; Purdy v. Erie R. Co. 162 N. Y. 42, 48 L.R.A. 669, 56 | St. Louis & S. F. R. Co. v. Gill, 156 U. S. N. E. 508. 649, 665, 39 L. ed. 567, 573, 15 Sup. Ct. Rep. 484. The fact that the plaintiff in error was authorized to take over the property of a foreign corporation does not affect the case. Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 702, 40 L. ed. 849, 859, 16 Sup. Ct. Rep. 714; Ashley v. Ryan, 153 U. S. 436, 442. 38 L. ed. 773, 777, 4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep. 865. Even if the plaintiff in error had not accepted its charter subject to the provisions of Mass. Rev. Laws, chap. 112, § 72, this statute would not be unconstitutional as applied to it. It differs from rate laws generally, in that it fixes the maximum rate with reference to another rate, and not at an arbitrary amount. This in itself is clearly unobjectionable, as in the case of the long and short haul clause (Louisville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. ed. 208, 22 Sup. Ct. Rep. 95), provided the rate is not thereby fixed too low, and provided the law does not unreasonably discriminate. Under some circumstances a rate is not so unreasonable as to be repugnant to constitutional provisions, even if so low that the company cannot pay dividends (see Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 412, 38 L. ed. 1014, 1028, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Covington & L. Turnp. Co. v. Sanford, 164 U. S. 578, 595-597, 41 L. ed. 560, 566, 567, 17 Sup. Ct. Rep. 198; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 268, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900), or even if so low that it cannot pay operating expenses (see Minneapolis & St. L. R. Co. v. Minnesota, supra). The reasonableness of a rate involves an element of reasonableness as regards the public, as well as the railroad (Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 458, 33 L. ed. 970, 981, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Covington & L. Turnp. Co. v. Sandford, supra; San Diego Land & Town Co. v. National City, 174 U. S. 739, 749, 43 L. ed. 1154, 1158, 19 Sup. Ct. Rep. 804). No evidence was offered in the present case tending to show that any rate greater than a half-fare rate for pupils of the public schools would be reasonable as regards the public. That the application of a given rate to the entire business of the company would reduce its earnings so that it could not pay operating expenses and reasonable dividends is not decisive of the unreasonableness of the particular rate. Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 267, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900. This is as true of classes of passengers as of .classes of freight. Even if it were possible to determine the amount of excess of earnings over operating expenses from the evidence offered, it would not be possible to determine whether or not the plaintiff in error could have paid reasonable dividends, since no evidence was offered as to the fair or reasonable value of its property. Smyth v. Ames, 169 U. S. 466, 546, 42 L. ed. 819, 849, 18 Sup. Ct. Rep. 418; San Diego Land & Town Co. v. National City, 174 U. S. 739, 747, 43 L. ed. 1154, 1157, 19 Sup. Ct. Rep. 804. Furthermore, the effect of the statute in question is not necessarily to diminish the income of the plaintiff in error. Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 343, 36 L. ed. 176, 179, 12 Sup. Ct. Rep. 400. Even if, at a regular rate of 5 cents per passenger, and a half rate for pupils of public schools of 22 cents, the company could not pay operating expenses and reasonable dividends, the statute is not necessarily objectionable as fixing too low a rate. Com. v. Interstate Consol. Street R. Co 187 Mass. 437, 11 L.R.A. (N.S.) 973, 73 N. E. 530. State-made rates are regularly based on classifications of traffic, and are not thereby invalidated (Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900). Undoubtedly these classifications must, as in other matters, be founded on reasonable distinctions in principle (Pacific Exp. Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, 3 Inters. Com. Rep. 810, 12 Sup. Ct. Rep. 250; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 45 L. ed. 102, 21 Sup. Ct. Rep. 43). The case is to be distinguished from Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565, which held a law requiring the sale of onethousand-mile tickets to be unconstitutional. In that case the classification was of persons who bought tickets for a given number of miles, and persons who did not. The court said that the legislation was arbitrary, and not for the safety, health, or proper convenience of the public. See Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 301, 45 L. ed. 194, 21 Sup. Ct. Rep. 115. In the present case the classification is not arbitrary, but is based on a reasonable disMoreover, the effect tinction in principle. of the statute is to promote the proper convenience of the public. |