886

STATE v. GOODWILL.

license and pay a fee therefor; and what persons shall be required to submit to the payment of such fee, and the amount and terms of payment, and modes of collection are subjects for the determination of the state legislature; and the fact that the legislature has imposed a greater burden upon some corporations than upon others, or has burdened some and left others free, is not a valid objection to the statute, provided there is no arbitrary discrimination between persons situated in the same circumstances, and no unlawful interference with interstate commerce: Bostick v. State, 47 Ark. 126; Fahey v. State, 27 Tex. App. 146; Rothermel v. Meyerle, 136 Pa St. 250; State v. Wessell, 109 N. C. 735; State v. Smithson, 106 Mo. 149; and merchants, in addition to an ad valorem tax on their stock, may be required to pay a tax equivalent to one tenth of one per cent of the total amount of their purchases, excepting purchases of farm products, from their producers: State v. French, 109 N. C. 722. The views of the supreme court of the United States concerning the effect of the Fourteenth Amendment upon the right of the states to impose and collect taxes and licenses was thus clearly and forcibly expressed by the late Mr. Justice Bradley, delivering the opinion of the court in Bell's Gap Road Co. v. Pennsylvania, 134 U. S. 237: "The provision in the Fourteenth Amendment that no state shall deny to any person within its jurisdiction the equal protection of the laws was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the state in framing their constitution; but clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious We to the constitutional prohibition. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject They must be decided as they arise. that would include all cases. think that we are safe in saying that the Fourteenth Amendment was not intended to compel the state to adopt an iron rule of equal taxation. If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some of the states whose object is to secure equality of taxation, and which are usually accompanied with qualifications deemed material, but it would render nugatory those discriminations which the best interests of society require, which are necessary for the encouragement of needed and useful industries, and the discouragement of intemperance and vice, and which every state, in one form or another, deems it expedient to adopt."

Judicial Proceedings. Nor does the Fourteenth Amendment entitle every person to have the same remedies in the courts, or to pursue them within the same times or in the same modes, as every other person, though in these respects the same rights and remedies must be conceded to all persons in the same condition and circumstances. If a litigant's cause comes on to be tried before a court then presided over by a judge de facto, he cannot avoid the judgment against him on the ground that causes in other courts of the state

were decided only by judges de jure: In re Manning, 139 U. S. 504; nor can he object that his cause happened to belong to a class or to be tried before a court from the decision of which no appeal was allowed, though had it be. longed to a different class or fallen within the jurisdiction of a different court, remedies by appeal would have been open to him: Sullivan v. Haug, 82 Mich. 548; St. Louis etc. R'y Co. v. Worthen, 52 Ark. 529; Missouri v. Lewis, 101 U. S. 22; or that in the city where he was tried and convicted of crime, the state was entitled to fifteen peremptory challenges of jurors, and elsewhere to but eight: Hayes v. Missouri, 120 U. S. 68; or that a statute limited to ninety days the time within which suit could be brought in a cause of action such as that upon which he sought to recover: Christy v. Life Indemnity & Ins. Co., 48 N. W. Rep. 94 (Iowa, Feb. 10, 1891); or that a statute provided that cases such as his should be tried without a jury: Walker ▼. Sauvinet, 92 U. S. 90; or after a debt due from him had become barred by the statute of limitations, had repealed the statute and thereby revived the remedies against him, and authorized the judgment of which he complained: Campbell v. Holt, 115 U. S. 620.

Establishing Markets and Otherwise Regulating the Modes and Places of doing Business. Each state legislature may, when justified by the police power vested in it, restrict the places and modes of doing business, though in so doing it, in some respects, creates a monoply. Thus it may forbid the landing and slaughtering of animals whose flesh is intended for food, within a certain city and adjacent parishes, except within certain designated locali ties, and forbid the keeping or establishing of slaughter-houses within those limits, except by a corporation created by the statute, and may give to such corporation the exclusive privilege of carrying on a live-stock landing and slaughter-house business within those limits, but making it the duty of the corporation to permit any person to slaughter animals in its slaughter-houses. This statute was defensible as an exercise of the police power, because it regulated an unwholesome trade necessary to be carried on in the midst of a dense population, which, unless regulated, might, and probably would, be made offensive to the senses and injurious to the health of the community; Slaughter House Cases, 16 Wall. 36. "The regulation and control of markets for the sale of provisions, including the places and distances from each other at which they may be kept, are matters of municipal police power, and may be enforced by the legislation of the city council, to be exercised as, in its discretion, the public health and convenience may require ": Natal v. Louisiana, 139 U. S. 64. A statute may make it criminal for any person to vend refreshments at a camp-meeting without the consent of the persons in charge thereof, but exempting from its operation persons having a regular place of business where such meeting is held: Meyers v. Baker, 120 Ill. 567. Business may be regulated so as not to be offensive to decency: Nolin v. Franklin, 4 Yerg. 163; or as not to create or constitute a nuisance in other respects; and, if necessary, property, the use of which is a public nuisance, may be authorized to be destroyed: Watertown v. Mayo, 109 Mass. 315; Taylor v. State, 35 Wis. 298; Mugler v. Kansas, 123 U. S. 623; Fertilizing Co. v. Hyde Park, 97 U. S. 659. In Pennsylvania, it has been decided that a statute authorizing the sale of certain articles by hawkers or peddlers relates to the manner of sale, and not to the right of sale, and was sustainable as an exercise of the police power: Commonwealth v. Gardner, 133 Pa. St. 284; 19 Am. St. Rep. 645.

Rules and Restrictions to Prevent Imposition and Fraud. — If a business is of ■ character offering special opportunities for imposition and fraud or render

ing imposition and fraud specially difficult of detection or redress, it is unquestionably within the power of the state to impose such regulations and restrictions as to its legislature may seem proper for the better protection of its citizens and others, unless, indeed, the restrictions imposed are of a capri. cious and arbitrary character, such as could not have been enacted in good faith. Therefore a statute is not subject to constitutional objection which provides that tobacco shall not be carried out of the state unless packed in a designated manner, in hogsheads of a particular size, and either opened and submitted to inspection by a public official, or if packed by the grower or purchaser thereof in the same county or neighborhood where grown, marked with the full name of the owner and his place of residence: Turner v. State, 55 Md. 240; 107 U. S. 38; or that it shall be unlawful to sell, deliver, or receive any cotton in the seed in less quantity than one bale, unless the sale is in writing, signed by the parties thereto, witnessed by two witnesses, and the writing delivered, with a fee, to the nearest justice of the peace, to be docketed for the inspection of all persons: State v. Moore, 104 N. C. 714; 17 Am. St. Rep. 696; or places the sale of fertilizers under the control of a commissioner of agriculture, who is authorized to make analysis of all fertilizers offered for sale in the state, to issue and distribute circulars setting forth the price of fertilizers sold or offered for sale, their analysis as claimed by the manufacturer or dealer in them, to provide tags for attachment to bags, barrels, and packages of fertilizers, which shall be printed, and the word “guaranteed,”with the year or season in each year in which they are to be used, and prohibiting the sale or exchange of fertilizers without a license from such commissioner: Steiner v. Ray, 84 Ala. 95; 5 Am. St. Rep. 332; or prohibiting the manufacture of oleomargarine, or any other substance or compound other than that produced by unadulterated milk or cream from such milk, designed to take the place of butter or cheese produced from pure milk or cream: Waterbury v. Newton, 50 N. J. L. 534; Powell v. Pennsylvania, 127 U. S. 678; State v. Marshall, 64 N. H. 549; Butler v. Chambers, 36 Minn. 69; 1 Am. St. Rep. 638; or prohibiting the sale of milk adulterated with pure water, or otherwise, and fixing a standard, and declaring that all milk below that standard is impure or adulterated: Commonwealth v. Waite, 11 Allen, 264; 87 Am. Dec. 711; State v. Campbell, 64 N. H. 402; 10 Am. St. Rep. 419; State v. Smyth, 14 R. I. 100; 51 Am. Rep. 344; or requiring persons selling patent rights to file with the clerk of the county an authenticated copy of the letters patent, and an affidavit that they are genuine and have not been revoked, and that the affiant is authorized to sell the right patented: Brechbill ▼. Randall, 102 Ind. 528; 52 Am. Rep. 695; or requiring operatives of butter and cheese factories on the co-operative plan to give bonds for the faithful accounting of property received by them: Hawthorn v. People, 109 Ill. 302; 50 Am. Rep. 610.

Fixing Rates to be Charged for Services. - Over no subject has litigation been more persistent than that of the right of the legislature to prescribe rates to be charged for services rendered by carriers and others engaged in businesses which are regarded as charged with public use, or "affected with a public interest." It would, we think, be impossible, from existing decisions, to form any reliable test by which to determine in all cases whether the business in question is or is not such as is charged with a public use, or "affected with a public interest so as to bring it within the power of the legislature to prescribe the charges which may lawfully be made therein. If the business is one which it is not lawful to carry on without a franchise or license from the state, or is rendered especial assistance by the state, by taxation or

otherwise, or is allowed the use of public property or of some public easement, or is granted some exclusive privilege by the state or the public, its charges may be fixed by the legislature: Cooley's Constitutional Limitations, 6th ed., 738. We apprehend, however, that the power of the legislature, though usually exercised over businesses such as we have just referred to, is not limited to them, and may be extended to all cases in which the business is one which is carried on under such circumstances as to create a substantial monopoly or to give special opportunities for extortion or oppression: People v. Budd, 17 N. Y. 1; 15 Am. St. Rep. 460; affirmed Budd v. New York, 143 U. S. 517; Sinking Fund Cases, 99 U. S. 700; Spring Valley etc. Co. v. Schottler, 110 U. S. 347; Dow v. Beidleman, 125 U. S. 680, 686. At all events, the exercise of this power has been sustained as against common carriers: Stone v. Farmers' L. & T. Co., 116 U. S. 307; Chicago etc. R'y Co. v. Iowa, 94 U. S. 155; Ruggles v. Illinois, 108 U. S. 526; Railroad Co. v. Maryland, 21 Wall. 456; Dow v. Beidelman, 49 Ark. 455; warehousemen: Stone v. Yazoo etc. R. R. Co., 62 Miss. 607; 52 Am. Rep. 193; Delaware etc. R. R. Co. v. Central Stock Yard, 45 N. J. Eq. 50; corporations authorized to manufacture and sell illuminating gas: State v. Columbus Gas Co., 34 Ohio St. 572; 32 Am. Rep. 390; Zanesville v. Gas Light Co., 47 Ohio St. 1; or to use, rent, and maintain telephones, and the wires and appliances necessary thereto: Chesa peake & P. T. Co. v. Baltimore etc. Tel. Co., 66 Md. 399; 59 Am. Rep. 167; Hockett v. State, 105 Ind. 250; 55 Am. Rep. 201; Central U. T. Co. v. State, 118 Ind. 194; 10 Am. St. Rep. 114; Central U. T. Co. v. Bradbury, 106 Ind. 1; Webster Telephone Case, 17 Neb. 126; 52 Am. Rep. 404; and persons, whether natural or artificial, engaged in the business of elevating, receiving, and discharging grain: Munn v. Illinois, 94 U. S. 113; People v. Budd, 117 N. Y. 1; 15 Am. St. Rep. 460; affirmed 143 U. S. 517. We had understood Chicago etc. R'y Co. v. Minnesota, 134 U. S. 418, as in effect overruling the earlier decisions upon the same subject, and determining that a common carrier or other person could not be prevented from showing in some appropriate judicial tribunal that the charges fixed for his services were unreasonable, and thereby relieving himself from the obligation to conform to such charges. A more recent decision, though by a divided court, has limited the apparent signification of the former decision by restricting its application to cases in which the rates and charges were not fixed by the legislature itself, but by some commission or other tribunal to which the legislative authority has been delegated, and has reaffirmed Munn v. Illinois, and the other cases in harmony with it: Budd v. New York, 143 U. S. 517.

Regulations and Restrictions to Promote and Secure the Public Health and Safety are also within the police power of the state and may extend to a protection both of person and of property. In cities and other places of dense population, what is known as "fire limits" may be fixed, and the construc tion, alteration, and repair of wooden and other specially combustible buildings there prohibited: Respublica v. Duquet, 2 Yates, 493; Wadleigh v. Gilman, 12 Me. 403; 28 Am. Dec. 188; Monroe v. Hoffman, 29 La. Ann. 651; 29 Am. Rep. 345; King v. Davenport, 98 Ill. 305; 38 Am. Rep. 89; Ex parte Fiske, 72 Cal. 125; the right to store gunpowder and other explosive and dangerous material may be confined to certain limits, where the harm which may be produced by them will be reduced to the minimum: Foote v. Fire Department, 5 Hill, 99; Davenport v. Richmond, 81 Va. 636; the sale of poisons may be forbidden unless they are labeled so as to give warning of their character and effect: Morey v. Brown, 42 N. H. 373; a bicycle or other vehi.

cle which from its form, appearance, or manner of use may frighten horses, and thereby imperil the lives of people, may be excluded from the public highway: State v. Yopp, 97 N. C. 477; 2 Am. St. Rep. 305; railroad corporations may be required to fence their tracks and put on cattle-guards: Wilder v. Maine etc. R. R. Co., 65 Me. 322; 20 Am. Rep. 698; Thorpe v. Rutland R. R. Co., 27 Vt. 140; 62 Am. Dec. 625; or to keep that part of the country within the lines of their right of way safe and convenient for trav. elers upon it: Boston elc. R. R. Co. v. County Commissioners, 79 Me. 386; People v. Boston & A. R. R. Co., 70 N. Y. 569; and to that end to keep in repair suitable crossings, where railways intersect public highways: State v. Chicago etc. R. R. Co., 29 Neb. 412; to require locomotive-engineers and other persons in the employment of railway corporations whose duties call for ability to distinguish between colors to be examined in this respect and that such corporations pay for the expenses of such examination: Nashville etc. R'y Co. v. Alabama, 128 U. S. 96.

Statutes Regulating the Practice of Dentistry and of Medicine, providing means of securing the competency of persons engaged therein, and excluding all other persons from such practice, are defensible, both on the ground that they are in the interest of the public health and are designed and well calculated to protect the public from imposition and fraud. They have never been pronounced invalid, except when they imposed arbitrary discriminations between persons equally well qualified to engage in the profession to which such statute applied: Wilkins v. State, 113 Ind. 514; State v. Dent, 25 W. Va. 1; Harding v. People, 10 Col. 387; People v. Phippin, 70 Mich. 6; State v. Green, 112 Ind. 462; Dent v. West Virginia, 129 U. S. 114. And they are not deemed arbitrary because they exempt from their prohibitions midwives and non-resident physicians coming within the state to consult with resident registered physicians: State v. Van Doran, 109 N. C. 864.

Statutes Restricting Sales of Intoxicating Liquors. The right to sell intoxicating liquors is not one of the privileges and immunities of citizens of the United States, and is not assured by that portion of the Fourteenth Amend. ment prohibiting the abridging of such privileges and immunities: Bartemeyer v. Iowa, 18 Wall. 129; nor is there elsewhere in that amendment any protection for the liquor traffic. In the legislature is vested the authority to determine whether the manufacture or sale of particular drinks will injuriously affect the public, and they may therefore regulate, restrict, or prohibit the manufacture or the sale of intoxicating liquors, unless perhaps when used for medical purposes: Beer Co. v. Massachusetts, 97 U. S. 25; Foster v. Kansas, 112 U. S. 201; Mugler v. Kansas, 123 U. S. 623. When the sale of such liquors is permitted, the right to sell them may be restricted to such classes of persons as the legislature may think proper. Hence this right may be confined to male inhabitants of a state: Blair v. Kilpatrick, 40 Ind. 315; Welsh v. State, 126 Ind. 71; or to citizens of the United States of temperate habits and good character: Trageser v. Gray, 73 Md. 250; ante, p. 587; and a person convicted of intoxication may be compelled to disclose, "under oath, when, where, how, and from whom he procured the liquor by which his intoxication was produced," and his refusal to make such disclosure may be punished as a contempt of court: In re Clayton, 59 Conn. 510; 21 Am. St. Rep. 128.