there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.

66

The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different States are allowable in different parts of the same State. Where part of a State is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions-trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdiction. It would be an unfortunate restriction of the powers of the State government if it could not, in its discretion, provide for these various exigencies.

"If a Mexican State should be acquired by treaty and added to an adjoining State, or part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion, and the common law and its

corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the Fourteenth Amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone, and a regard to the welfare of all classes within the particular territory or jurisdiction."

Again, in Unity v. Burrage, 103 U. S. 455, it was said:

"The courts said: 'Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, etc., for public uses, all operate upon local subjects. They are not for that reason special or private acts.' [West v. Blake, 4 Blackf. (Ind.) 234.] In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. Pierce v. Kimball, 9 Me. 54; Inhabitants of New Portland v. Inhabitants of New Vineyard, 16 Me. 69; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58; Burnham v. Webster, 5 Mass. 266; Com. v. McCurdy, 5 Mass. 324; Com. v. Inhabitants of Springfield, 7 Mass. 9; Bac. Abr. Statute,' F. On these and many other authorities which might be cited, we think that the act by which the issue of the bonds sued on was authorized is a public act, of which the courts are bound to take judicial notice, and that it need not be specially pleaded.'

In Davis v. State, 68 Ala. 58, it was held that a statute making it unlawful to transport or remove cotton in the seed, in certain counties, after sunset and before sunrise of the succeeding day, was not in conflict with any provision of the State or Federal Constitution. We need not discuss the Michigan cases of Whitney v. Grand Rapids Township Board, 71 Mich. 234, and Feek v. Bloomingdale Township Board, 82 Mich. 393 (10 L. R. A. 69), further than to say that they are not authority for a contrary doctrine. Many authorities similar to the above are cited in the opinion of the learned circuit judge. The order is affirmed.

CARPENTER, C. J., and MCALVAY, BLAIR, and MOORE, JJ., concurred.

144 MIOH.-22.

144 338 158 709n

WOODWORTH v. OLD SECOND NATIONAL BANK.
SAME v. MALTBY CEDAR CO.

VENUE-CHANGE-STATUTE - APPLICATION — MANDAMUS

ACTION.

- CIVIL

Mandamus proceedings are "civil actions," within Act No. 309, Pub. Acts 1905, providing for changes of venue in civil actions..

Certiorari to Bay; Gage (Chauncey H.), J., presiding. Submitted May 8, 1906. (Calendar Nos. 21,678, 21,679.) Decided May 24, 1906.

Mandamus by Frank T. Woodworth to compel the Old Second National Bank and others, and by the same relator to compel the Maltby Cedar Company and others, to turn over their books and papers for relator's inspection: On motion for a change of venue. There was an order granting the motion, and respondents bring certiorari. firmed.

Gillett & Clark and John C. Weadock, for relator.
Stoddard & McMillan, for respondents.

BLAIR, J. The sole question presented for our consideration upon this writ is whether or not mandamus proceedings are "civil actions," within the meaning of Act No. 309, Pub. Acts 1905, providing for changes of venue. In 19 Am. & Eng. Enc. Law (2d Ed.), at pages 719, 720, the rule is stated in the text as follows:

"The cases are very numerous wherein it is said that mandamus is an action at law, or a civil action under the code. But there are cases which deny that it is either an action at law, or a civil action under the code, and hold that mandamus is a special proceeding. Originally the proceeding was not in the nature of a civil suit between par

ties to settle private rights. But since the statute of Anne authorizing pleadings and proceedings by mandamus, and wherever a similar statute is in force, mandamus is regarded as in the nature of an action."

To the same effect see 1 Cyc. p. 723. In Kentucky v. Dennison, 24 How. (U. S.) 66, Chief Justice Taney, delivering the opinion of the court, says:

"It is equally well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which have long since been disused. the right to the writ and the power to issue it has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable."

But

To the same effect, see Brown v. Crego, 29 Iowa, 321; State, ex rel. Green Bay, etc., R. Co. v. Jennings, 56 Wis. 113; Seymour Water Co. v. City of Seymour, 163 Ind. 120, 130; Hartman v. Greenhow, 102 U. S. 672; Crissey v. Morrill, 125 Fed. 878.

McBride v. Common Council of Grand Rapids, 32 Mich. 364, upon which respondents strongly rely, is cited in note 2 on page 720, 19 Am. & Eng. Enc. Law, to the effect that mandamus was not a suit originally at common law. In that case, the question was whether the Constitution allowed mandamus to be used by the circuit courts generally or in all cases to which it was applicable, and it was held that it did not, and in the course of the majority opinion the writ was treated as a prerogative writ. After that decision, the Constitution was so amended as to confer authority upon the Supreme Court to prescribe by rule the general jurisdiction of the circuit courts over the writ. Pursuant to the amendment referred to, a rule was adopted which now stands as Circuit Court Rule 46 (134 Mich. xxxii). Supreme Court Rule 12 provides for a review of the proceedings in the Supreme Court by writ of certiorari. Under these rules and the statutes relating

to mandamus proceedings, the practice has grown up which is stated by Mr. Justice CARPENTER in Lewis v. Detroit Board of Education, 139 Mich. 306. That practice is widely variant from the original common-law theory of a prerogative writ, and is in harmony with the practice prevailing in the majority of the States in providing for an orderly trial of issues upon pleadings. While there are cases supporting the contention of appellants, we think the great weight of authority is to the contrary, and we therefore hold that mandamus proceedings are civil actions, within the meaning of Act No. 309 of the Public Acts of 1905.

This determination also disposes of the case of Frank T. Woodworth, relator, v. Maltby Cedar Company et al., respondents.

The orders of the circuit judge are affirmed in both

cases.

MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred.