reasonable regulations to that end which will be valid as to all within its jurisdiction in the absence of legislation by congress.1

§ 130 (102). The state Anti-Trust Laws and the fourteenth amendment.-The power of the state in the enactment of socalled anti-trust legislation, prohibiting contracts and combinations in restraint of trade, had been discussed by the federal courts in connection with the regulation and control of railroads and other public service corporations; and it has been held that such statutes are within the constitutional power of the state when not violative of the federal guarantees of the due process of law and the equal protection of the laws or other constitutional guarantees.

The extent of the state power in the enactment of such statutes is illustrated in the decision of the supreme court, holding that a statute of Wisconsin which punished combining for the purpose of wilfully or maliciously injuring another in his business, and construed by the supreme court of the state as requiring malicious, as distinguished from mere wilfull injury, was not violative of the lawful right to contract protected by the fourteenth amendment. The court said that malicious mischief was a proper subject for legislative repression, and still more were combinations for the purpose of inflicting it, and that it would be impossible to hold that the liberty to combine to inflict such mischief, even upon such intangibles as business or reputation, was among the rights which the fourteenth amendment was intended to preserve. The court did not decide what would be the force of the constitutional objection if the statute was construed to embrace combining to effect wilful, as distinguished

1 Chicago, R. I. & P. v. Arkansas, 219 U. S. 453, 55 L. Ed. 275, affirming 86 Ark. 412 (1910), sustaining a statute prescribing a minimum of three brakemen for freight trains of more than twenty-five cars, regardless of any equipment with automatic couplers and air brakes.

2 Aikens v. Wisconsin, 195 U. S. 194, 49 L. Ed. 154 (1904); Smiley v. Kansas, 196 U. S. 447, 49 L. Ed. 546 (1905).

The conviction affirmed in this case was that of certain newspaper managers who, it was alleged, had combined to maliciously injure a rival paper by agreeing to refuse space to advertisers who should pay the increased rates fixed by such rival, except at a corresponding increase, but to permit those to advertise in their papers at the old rate who should refuse to pay their rival the new rate.

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from malicious, injury. The Texas Anti-Trust Law had been adjudged defective on account of discriminatory features and it was held by the supreme court, in affirming the judgment of the Texas court, forfeiting the license of a foreign corporation to do business in the state because of its violation of the anti-trust laws in entering into an agreement to fix the price of cotton seeds, that it was bound by the construction of the Texas statutes, made by the Texas courts, which held that the discriminatory features of the act had been repealed.

Such a law is invalid when it attempts to exempt a certain class of the community, such exemption being on no reasonable basis of classification. Thus, the Anti-Trust Law of Illinois was held invalid on the ground that agricultural products or live stock in the hands of the producer or raiser are exempted from the operation of the statute, which prohibited the recovery of the price of the article sold by any trust or combination if in restraint of trade or commerce in violation of the act. The supreme court said that this discrimination was a denial of the equal protection of the laws. The court said that such a statute was not a legitimate exertion of the power of taxation, rested upon no reasonable basis, was plainly arbitrary and clearly denied the equal protection of the laws to those against whom it discriminated; as this exemption was such a material feature of the law, that presumably it would not have been enacted without it, the whole law was held void.

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The Tennessee Anti-Trust Act, which provided that corporate violators should be proceeded against by bill in equity on relation of the attorney general, while any persons offending its provisions could not be tried without a grand jury investigation and indictment or presentment and a trial by jury with the requirement of establishing guilt beyond a reasonable doubt and to the benefit of the statute of limitations of one year, did not deny the equal protection of the laws. The supreme court said that the fourteenth amendment did not introduce a factitious equality without regard to practical difference, that are best met

1 In re Grice (No. Dist. of Texas), 79 Fed. 627 (1897).

2 National Oil Co. v. Texas, 197 U. S. 115, 49 L. Ed. 689 (1905), affirming 72 S. W. 615.

8 Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (1902), 46 L Ed. 679.

by corresponding differences of treatment. The use of fine and imprisonment was likely to be efficient for men, while the latter was impossible, and the former less serious to corporations.1 The Arkansas Anti-Trust Act of 1905 was also held valid as to foreign corporations, and the possible invalidity of the act as to individuals did not make the provisions invalid as to corporations, and no contract rights of domestic corporations were impaired by the imposition of a penalty on corporations doing business in the state while members of a trust or combination to control prices, where the legislature was empowered to repeal, alter or amend corporate charters, provided no injustice was done to the incorporators. Neither was due process of law denied by an order under this statute directing the production of books and papers by a foreign corporation, nor by striking from the files an answer of a foreign corporation on a refusal to produce such books and papers, nor did such order amount to an unreasonable search or seizure.2

§ 131 (103). Classification in state railroad legislation.Where classification is reasonable, that is, based upon legitimate considerations of public policy, it is valid, as legislation must necessarily be specialized in its adaption to the subjects of legislation. The question is thus left open for determination in every case of classification for legislation, whether the discrimination is natural and reasonable or arbitrary and oppressive, and therefore a denial of the equal protection of the laws guaranteed by the fourteenth amendment.3

The difficulty of determining these questions of classification was illustrated in the division of the supreme court in two recent cases. In one the court held invalid a statute of Texas

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1 Standard Oil Co. of Ky. v. Tenn., 217 U. S. 413, 54 L. Ed. 817 (1910).

2 Hammond Packing Co. V. Ark., 212 U. S. 322, 53 L. Ed. 530 (1909), affirming 81 Ark. 519.

3 In Niagara Falls Fire Ins. Co. V. Cornell, 110 Fed. 816 (1901), the circuit court of Nebraska held the anti-trust law of that state void on account of its exemption of assemblies and as

sociations of working men and reserving to them all their rights and privileges now accorded to them by law. This case also held that foreign insurance companies doing business in the state by permission were entitled to invoke the protection of the federal law and challenge the validity of statutes which affected their business equally with state companies.

Railroad Co. v. Ellis, 165 U.

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which required railroad companies in all cases of claims under $50.00 to pay an attorney's fee not exceeding $10.00 to the party successfully suing, provided the suit was brought thirty days after the refusal of the company to pay the claim. The court said that this was an arbitrary selection which could not be justified by calling it classification. In the other case a Kansas statute providing that in all actions brought for damages caused by fire from the operation of the railroad the court should allow the plaintiff on recovery a reasonable attorney's fee, which should become a part of the judgment, was sustained, the opinion of the court being rendered by the same judge, Justice Brewer, in both cases. It was said in the latter case that while the principles of separation between the classes were not difficult, yet their application often became very troublesome, especially when the case was near the dividing line. "It is easy to distinguish," said the court, "between the full light of day and the darkness of midnight, but often very difficult to determine whether the given moment in the twilight hour is before or after that in which the light predominates over the darkness."

The statute of Kansas regulating charges in public stockyards, and applying only to one corporation and not to other companies or corporations engaged in like business, was held to deny the equal protection of the laws.2

A law of Texas directed solely against railroad companies and imposing a penalty for permitting Johnson grass or Russian thistle upon their roadway was sustained, the court saying: "Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine. and it must be remembered that the legislatures are the ultimate guardians of the liberties of the people in quite as great a degree as the courts.”

A law of Iowa excepting "sales by jobbers and wholesalers in doing an interstate business with customers outside of the state"

S. 150, 41 L. Ed. 667 (1897), three judges dissenting.

1 A., T. & S. R. R. Co. v. Matthews, 174 U. S. 96, 43 L. Ed. 909 (1899), four judges dissenting.

2 Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 46 L. Ed. 92 (1901).

• Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267 (1904), 48 L. Ed. 971, two judges dissenting. See decisions of supreme court of United States on Wisconsin Anti-Trust Law, November 4, 1904, 195 U. S. 194, 49 L. Ed. 154.

from a license tax imposed upon dealers in cigarettes was sustained, the court saying that there was a clear distinction in occupations warranting the classification.

The modification of the fellow-servant rule as to railway employes by a state statute does not violate the equal protection of the law; and a general classification of railroad employes as subject to such statute is a proper exercise of the police power of the state. Neither does a statute prohibiting drumming and soliciting of business upon railroad trains and premises violate the equal protection of the laws, though it singles out certain business and professions for which soliciting of patronage is prohibited.

1 Cook v. County of Marshall, 196 U. S. 261, 49 L. Ed. 471 (1905).

Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673 (1910). See also Chicago, R. I. & Pac. Ry. Co. v. Arkansas, supra, where the ex

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clusion of railroads less than fifty miles in length from a statute prescribing the minimum of brakemen for certain freight trains, did not deny the equal protection of the laws, affirming 86 Ark. 412.