fact, every one of them seems to be, when examined with reference to the service rendered and the benefit to the person receiving that service, perfectly unexceptionable according to any standard of reasonableness which can be suggested. That being so, it seems to their lordships that it would be a very extraordinary thing indeed, unless the legislature had expressly said so, to hold that the persons using the bridge could claim a right to take the whole accounts of the company, to dissect their capital account, and to dissect their income account, to allow this item and disallow that, and, after manipulating the accounts in their own way, to ask a court to say that the persons who have projected such an undertaking as this, who have encountered all the original risks of executing it, who are still subject to the risks which from natural and other causes every such undertaking is subject to, and who may possibly, as in the case alluded to by the learned judge in the court [97] below, the case of the Tay Bridge, have the whole thing swept away in a moment, are to be regarded as making unreasonable charges, not because it is otherwise than fair for the railway company using the bridge to pay those charges, but because the bridge company gets a dividend which is alleged to amount, at the utmost, to 15 per Their lordships can hardly characterize that argument as anything less than preposterous."


The authority of the legislature to interfere by a regulation of rates is not an authority to destroy the principles of these decisions, but simply to enforce them. Its prescription of rates is prima facie evilence of their reasonableness. In other worls, it is a legislative declaration that such charges are reasonable compensation for the services rendered, but it does not follow therefrom that the legislature has power to reduce any reasonable charges because by reason of the volume of business done by the party he is making more profit than others in the same or other business. The question is always, not, What does he make as the aggregate of his profits? but, What is the value of the services which he renders to the one seeking and receiving such services? Of course, it may sometimes be, as suggested in the opinion of Lord Chancellor Selborne, that the amount of the aggregate profits may be a factor in considering the question of the reasonableness of the charges, but it is only one factor, and is not that which finally determines the question of reasonableness. Now, the controversy in the circuit court proceeded upon the theory that the aggregate of profits was the pivotal fact. To that the testimony was adduced, upon it the findings of the master were made, and in recognition of that fact the opinion of the court was announced. Obviously, as we think, in all this the lines of inquiry were too narrowly pursued.

It may be said that the conclusion of the court was directly against the plaintiffs, and therefore was a decision against all their contentions. It was found, however,

that the charges made by the defendant were no greater (and in many instances, less) than those of any other stock yards in the country. Nothing is stated to outweigh the significance of that finding. While custom is not controlling, for there may be a custom on the part of all stock-yard companies to[98] make excessive charges, yet in the absence of testimony to the contrary a customary charge should be regarded as reasonable and rightful. In Gunning, Law of Tolls, the author says (p. 61): "Long usage and acquiescence in one uniform payment for toll is undoubtedly cogent evidence that it is reasonable." In Shephard v. Payne, 12 C. B. N. S. 414, 433, Willes, J., said: "A fee need not be of a fixed and ascertained, but may be of a reasonable, amount; and, exercising the power conferred upon us by the case, to draw inferences of fact, we may conclude that, if the claim can be sustained in point of law, it was in fact for a reasonable fee. If so, then, looking to the amount established for similar services by other officers, and remembering what fees have been paid and received within the memory of us all in the Courts of Westminster Hall and at the Assizes, we think there can be little doubt that the fees in question, so far as amount is concerned, are in fact reasonable."

In Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 352. 358, 4 L. R. A. 244, 247, 21 N. E. 341, 343, is this language:

"The law makes it the duty of every common carrier to receive and carry all goods,

and authorizes a reasonable reward to be charged for the service. The amount to be paid is, in a measure, subject to the agreement of the parties; but when the amount is not fixed by contract, the law implies that the carrier shall have a reasonable reward, which is to be ascertained by the amount commonly or customarily paid for other like services. Johnson v. Pensacola & P. R. Co. 16 Fla. 623, 26 Am. Rep. 731; Angell, Carr. § 392; Lawson, Carr. § 125."

Again, the findings show that the gross receipts for the year 1896 were $1,012,271.22; that the total number of stock received during the same time was 5,471,246. In other words, the charge per capita was 18 So that one shipping to cents and 5 mills. the stock yards 100 head of stock was charged $18.50 for the privileges of the yard, the attendance of the employees, and the alone we might not say that the charges feed furnished. While from these figures

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not but be impressed with the fact that the were reasonable or unreasonable, we cansmallness of the charge suggests no extor-[99] tion. Further, as heretofore noticed, the findings show that the establishment of these yards has operated to secure to the shippers during a single year $1,500,000 more than they would have realized in case of their nonexistence and a consequent shipment to Chicago, the other great stock market of the country.

It is not to be wondered that the trial court, in deciding the case, observed: "Conceding, as we must, that the legis

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lation complained of was radical in its nature and effect, that it reduced the company's income about 50 per cent, and that it prevents it from realizing on the capital invested in its plant such a per cent as is ordinarily realized on capital invested in other mercantile and business enterprises, still," etc.

the chances of the construction of a doubtful statute? If the one construction is. placed upon it, then obviously, even accepting the largest estimate of value placed by any witness upon the property of the company, a single day's violation of the stat ute would exhaust such entire value in satisfaction of the penalties incurred. In this But inasmuch as the inquiry in that court feature of the case we are brought face to proceeded upon lines which we have indicat- face with a question which legislation of ed were too narrow, it might well be that other states is presenting. Do the laws seif there were no other questions we ought cure to an individual an equal protection to simply send back the case for further in- when he is allowed to come into court and vestigation upon the true lines of inquiry. make his claim or defense subject to the There are, however, other questions which condition that, upon a failure to make good compel notice, and one is that suggested by that claim or defense, the penalty for such the 7th section in the statute, which provides failure either appropriates all his property, a punishment for the first offense of not or subjects him to extravagant and unreamore than $100, for the second offense not sonable loss? Let us make some illustraless than $100 nor more than $200, for the tions to suggest the scope of this thought. third offense not less than $200 nor more Suppose a law were passed that if any than $500 and imprisonment in the coun- laboring man should bring or defend an acty jail not exceeding six months, and for tion and fail in his claim or defense, either each subsequent offense a fine of not less in whole or in part, he should in the one than $1,000 and imprisonment not less instance forfeit to the defendant half of the than six months. The language of this amount of his claim, and in the other be section, taken in connection with the bal- punished by a fine equal to half of the reance of the statute, is not entirely clear. covery against him, and that such law by [101) The previous prescriptions of the stat- its terms applied only to laboring men, ute are of a certain charge per head. would there be the slightest hesitation in Now, does this section contemplate a holding that the laborer was denied the separate offense with a separate penalty for each excessive charge per head, or does it contemplate a single penalty for a violation of the statute in respect to the entire number of stock received in one shipment? The difference is significant. Taking the total number shipped to these stock yards in the year 1896, it amounted to an average of about 15,000 head per day. Would that, in case of an excessive charge for each head, mean 15,000 violations of the statute? If so, as after the third offense [100] the fine could not be less *than $1,000 for each offense, a single day's penalties would aggregate at least $15,000.000. While the fact is not clearly disclosed by the testimony, doubtless the shipments were made by separate shippers in bunches all the way from 50 to 500 in number. If the penalty attaches simply to the charge for each shipment as a single act, the burden, though large, might not be deemed excessive; but if it attaches to that for each particular head of stock the penalties become enormous. It may be said that this is a penal statute, and therefore it is to be construed in favor of the delinquent, and that we have a right to expect that the state courts will construe the penalty as not attaching to the charge for each head of stock, but only to that upon the separate bunches shipped by different individuals. But is the language so clear that there is no doubt as to the construction? Is there not enough in it to justify a construction which may be accepted by the trial courts and approved by the supreme court of the state? And the construction of a state statute by the supreme court of the state is in a case like this conclusive upon us. Must the party upon whom such a liability is threatened take

equal protection of the laws? The mere
fact that the courts are open to hear his
claim or defense is not sufficient, if upon
him, and upon him alone, there is visited a
substantial penalty for a failure to make
good his entire claim or defense. Take an-
other illustration: Suppose a statute that
every corporation failing to establish its en-
tire claim, or make good its entire defense,
should as a penalty therefor forfeit its cor-
porate franchise, and that no penalty of
any kind except the matter of costs was at-
tached to like failures of other litigants,
could it be said that the corporations re-
ceived the equal protection of the laws?
Take still another illustration: Suppose a
law which, while opening the doors of the
courts to all litigants, provided that a fail-
ure of any plaintiff or defendant to make
good his entire claim or entire defense should
subject him to a forfeiture of all his
property or to some other great penalty;
then, even if, as all litigants were treated
alike, it could be said that there was equal
protection of the laws, would not such bur-
den upon all be adjudged a denial of due
process of law? Of course, these are ex-
treme illustrations, and they serve only to
illustrate the proposition that a statute (al-
though in terms opening the doors of the
courts to a particular litigant) which places
upon him as a penalty for a failure to make
good his claim or defense a burden so great
as to practically intimidate him from as-
serting that which he believes to be his
rights is, when no such penalty is inflicted
upon others, tantamount to a denial of the
equal protection of the laws. It may be
said that these illustrations are not perti-
nent because they are of civil actions, where
as this statute makes certain conduct by

the stock-yards company a criminal offense,, as the Constitution of Kansas is concerned and simply imposes punishment for such of its legislature may enact a law general in fense; that it is within the competency of its terms, and yet so phrased as necessarily the legislature to prescribe the penalties for to have operation only upon a single indiall offenses, either those existing at common vidual or corporation; but while making law or those created by statute; and, fur- that concession we cannot shut our eyes to ther, that although the penalties herein im- the fact that this act is precisely the same posed may be large, yet obedience to a stat in its effect as though the legislature had ute like this can only be secured by large said in terms that the Kansas City stock penalties; for otherwise the company, be- yards alone shall be subjected to its prong wealthy and powerful, might defiantly visions. Accepting, however, the full force (102] isregard its mandates, *trusting to the man- of the general language in which the statold chances of litigation to prevent any ute is couched, it appears that a classifiserious loss from disobedience. A penalty cation is attempted between stock yards do of a dollar on a large corporation, whose as- ing a large and those doing a small business. sets amount to millions, would not be very The express and only basis of classification deterrent from disobedience. It is doubt is in the amount of business done by the less true that the state may impose penal-two classes. As evidence that we are right ties such as will tend to compel obedience to its mandates by all, individuals or corporations; and if extreme and cumulative penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented. But when the legislature, in an effort to prevent any inquiry of the validity of a particular statute, so burdens any challenge thereof in the courts that the party affected is necessarily constrained to submit rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws.

But it is not necessary to rest our decision upon this consideration, which was not fully discussed by counsel, but pass to a question which is of a kindred nature, and in which there is presented no matter of the doubtful construction of a statute.

The act in terms applies only to those stock yards within the state "which for the preceding twelve months shall have had an average daily receipt of not less than 100 head of cattle, or 300 head of hogs, or 300 head of sheep."

It appears affirmatively from the testimony that there are other stock yards in the state, one at Wichita and one at Jamestown, and it is stated by counsel for appellants that there are many others scattered through the state, each doing a small business. Neither the yard at Wichita nor that at Jamestown, so far as the testimony shows, comes within the scope of this act. So it may be assumed from the record that the legislature of Kansas, having regard simply to the stock yards at Kansas City and the volume of business done at those yards, passed this act to reduce their charges. Undoubtedly the act is general in its terms, and we may not, therefore, stop to inquire whether it conflicts with the constitutional prohibition contained in article 2, § 17, of the Constitution of Kansas:

"Sec. 17. All laws of a general nature [103] shall have a uniform *operation throughout the state; and in all cases where a general law can be made applicable no special law shall be enacted."

It may be assumed, for the purposes of the question now to be considered, that so far

in our construction, we may refer to the brief of the learned attorney general, in which he says:

"The legislature has by this act classified the stock yards of the state into two classes, and has adopted the most natural and reasonable basis for such purposes that could be used, namely, the volume of business done. The reason for this is obvious; the stock yards doing a large volume of business are necessarily more of monopolies than those doing a smaller business. The public has greater interest in the business of large stock yards than it has in the business of smaller ones.

"Another reason why the classification should be based upon the volume of business done is that rates which are reasonable and proper and furnish a sufficient return upon the capital invested can very properly be made lower and different in a plant where the volume of business is large, while in a smaller plant doing a smaller volume of business higher rates may be necessary in order to afford adequate returns.”

If the average daily receipts of a stock yard are more than 100 head of cattle, or more than 300 head of hogs, or more than 300 head of sheep, it comes with-[104] in the purview of this statute. If less than that amount it is free from legislative restriction. No matter what yards it may touch to-day or in the near or far future, the express declaration of the statute is that stock yards doing a business in excess of a certain amount of stock shall be subjected to this regulation, and that all others doing less business shall be free from its provisions. Clearly the classification is based solely on the amount of business done, and without any reference to the character or value of the services rendered. Kindred legislation would be found in a statute like this: requiring a railroad company hauling ten tons or over of freight a day to charge only a certain sum per ton, leaving to other railroad companies hauling a less amount of freight the right to make any reasonable charge; or, one requiring a railroad company hauling 100 or more passengers a day to charge only a specified amount per mile for each, leaving those hauling 99 or less to make any charge which would be

The 14th Amendment forbids any state to "deny to any person within its jurisdiction the equal protection of the law." The scope of this prohibition has been frequently considered by this court.

reasonable for the service; or if we may in-ual rights, or does the same thing by afford-
dulge in the supposition that the legisla- ing remedies leading to similar consequen-
ture has a right to interfere with the free- ces, is unconstitutional and void. Were this
dom of private contracts, one which would otherwise, odious individuals and corporate
forbid a dealer in shoes and selling more bodies would be governed by one rule, and
than ten pairs a day from charging more the mass of the community, who made the
than a certain price per pair, leaving the law, by another."
others selling a less number to charge that
which they deemed reasonable; or forbid-
ding farmers selling more than ten bushels
of wheat to charge above a specified sum
per bushel, leaving to those selling a less
amount the privilege of charging and col-
lecting whatever they and the buyers may
see fit to agree upon. In short, we come
back to the thought that the classification is
one not based upon the character or value of
the services rendered, but simply on the
amount of the business which the party does,
and upon the theory that although he makes
a charge which everybody else in the same
business makes, and which is perfectly rea-
sonable so far as the value of the services
rendered to the individuals seeking them is
concerned, yet if by the aggregation of busi-
ness he is enabled to make large profits his
charges may be cut down.

In Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357, 359, it was said:

*The 14th Amendment, in declaring that [106] no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its ju risdiction the equal protection of the laws,' undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of prop-. erty, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses."

And in Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 237, 33 L. ed. 892, 895, 10 Sup. Ct. Rep. 533, 535:

The question thus presented is of profoundest significance. Is it true in this country that one who by his attention to [105]business, *by his efforts to satisfy customers, by his sagacity in discerning the probable courses of trade, and by contributing of his means to bring trade into those lines, succeeds in building up a large and profitable business, becomes thereby a legitimate object of the legislative scalping knife? Having created the facilities which the many enjoy, can the many turn around and say, you are making too much out of those facilities, and you must divide with us your profits? We cannot shut our eyes to wellknown facts. Kansas is an agricultural state. Its extensive and fertile prairies produce each year enormous crops of corn and other grains. While portions of these crops are shipped to mills to be manufactured into "The provision in the 14th Amendment, meal and flour, it is found by many that that no state shall deny to any person withthere is a profit in feeding them to stock, in its jurisdiction the equal protection of so that the amount of stock which is raised the laws, was not intended to prevent a and fattened in Kansas is large, and makes state from adjusting its system of taxation one of the great industries of the state. in all proper and reasonable ways. It may, Now, shall they whose interests are all along if it chooses, exempt certain classes of propthe line of production, having by virtue of erty from any taxation at all, such their numerical majority the control of leg-churches, libraries, and the property of charislation, be permitted to say to one who acts as an intermediary between transportation and sale, that while we permit no interference with the prices which wet upon our products, nevertheless we cut down your charges for intermediate services; and this, not because any particular charge is unreasonable, but because you are making by the aggregate of those charges too large a sum, and ought therefore to divide with us. The possibility of such legislation suggests the warning words of Judge Catron, afterwards Mr. Justice Catron, of this court, when in Vanzant v. Waddel, 2 Yerg. 262, 270, he said:

"Every partial or private law which directly proposes to destroy or affect individ


itable institutions. It may impose different
specific taxes upon different trades and pro-
fessions, and may vary the rates of excise
upon various products; it may tax real es-
tate 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 indebt-
edness, or not allow them. All such regula-
tions, 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 [107]
particular persons and classes, especially
such as are of an unusual character, un-

known to the practice of our governments, | clearly and in express terms amended cor-
might be obnoxious to the constitutional porate charters, retaining the section clas-
prohibition. It would, however, be imprac- sifying corporations to which it was appli-
ticable and unwise to attempt to lay down cable by the number of men in their employ.
any general rule or definition on the sub-it would be obnoxious to the 14th Amendment
ject that would include all cases."
to the Constitution of the United States."
Again on pp. 153, 154, L. R. A. p. 372,
Pac. p. 343:

In Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 159, 41 L. ed. 666, 669, 17 Sup. Ct. Rep. 255, 258, in which was presented "The obvious intent of the act is to prosolely the question of classification, we said, tect the laborer, and not to benefit the correferring to many cases, both state and na-poration. Why should not the nine emtional: ployees who work for one corporation be equally protected with the eleven engaged in the same line of employment for another corporation? If such law is beneficial to wage earners in the one instance, why not in the other? The nine men lawfully paid for their labor in goods at a truck store might with much reason complain that the protection of the law was unequal as to them when they saw eleven men paid in money for the same service performed for another corporation engaged in a like business. Such inequality destroys the law. In the instance cited, two of the eleven men might quit the employment of the company for which they worked, and by this act alone make a method of payment by the corporation lawful which was unlawful while the eleven were employed. The criminality or innocence of an act done ought not to depend on the happening of such a circumstance. Equal protection of the laws means class from all charges and burdens of every equal exemption with others of the same kind.

"But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the 14th Amendment forbids this. No language is more worthy of frequent and thoughtful consideration than these words of Mr. Justice Matthews, speaking for this court, in Yick Wo v. Hopkins, 118 U. S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. Rep. 1064, 1071: 'When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.' The first official action of this nation declared the foundation of government in these words: 'We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.' While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit,

and it is always safe to read the letter of the Constitution in the spirit of the Deciaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government." These authorities are referred to again with approval in Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594. [108] *But we may, perhaps, come closer to the particular statute when we consider the decisions of the supreme court of Kansas, the state by whose legislature this act was passed. In State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340, there was presented for consideration a statute providing for the payment of the wages of laborers in money, coupled with this provision in § 4: "Sec. 4. This act shall apply only to corporations or trusts, or their agents, lessees, or business managers, that employ ten or more persons."

The act was held unconstitutional. After referring to an alleged defect in the title, the court said (p. 152, L. R. A. p. 372, Pac. p. 342): "We have no hesitation in saying that if this statute had, without defect as to title,

A classification of the kind attempted makes a distinction between corcapital, and all other powers and privileges porations identically *alike in organization,[109] conferred by law. It is arbitrary and wanting in reason. The act in question is class legislation of the most pronounced character."

And in support of these views the court quoted from Cooley's Constitutional Limitations, 5th ed. 484, 486:

"Everyone has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments. Those who make the laws are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plow.' This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments."

So we have the clear declaration of the supreme court of Kansas that legislation by which one individual, or even one set of individuals, is selected from others doing the same business in the same way, and subjected to regulations not cast upon them, is a discrimination forbidden by the constitutional provision which obtains both in the Constitution of Kansas and in that of the

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