David Josiah Brewer

“ On the other hand, it is also true that the equal protection guarantied by the constitution forbids the legislature to select a person, natural or artificial, and impose upon him or it burdens and liabilities which are not cast upon others similarly situated. It cannot pick out one individual, or one corporation, and enact that whenever he or it is sued the judgment shall be for double damages, or subject to an attorney's fee in favor of the plaintiff, when no other individual or corporation is subjected to the same rule. ”

“ While, as heretofore noticed, no special act of precaution was required, no statutory duty imposed upon railroad corporations, in respect to protection against escaping fire, and a similar omission in the legislation of Texas was referred to in the opinion in the Ellis Case as strengthening the argument that no police regulation was intended, yet we are of opinion that such omission is not conclusive upon the question of the validity of the statute. We have no right to consider the wisdom of such legislation. Our inquiry runs only to the matter of legislative power. ”

“ It is also a maxim of constitutional law that a legislature is presumed to have acted within constitutional limits, upon full knowledge of the facts, and with the purpose of promoting the interests of the people as a whole, and courts will not lightly hold that an act duly passed by the legislature was one in the enactment of which it has transcended its power. ”

“ And there is no good reason why railroad corporations alone should be punished for not paying their debts. Compelling the payment of debts is not a police regulation. We see no reason to change the views then expressed, and, if the statute before us were the counterpart of that, we should be content to refer to that case as conclusive. ”

“ It is easy to distinguish between the full light of day and the darkness of midnight, but often very difficult to determine whether a given moment in the twilight hour is before or after that in which the light predominates over the darkness. The equal protection of the laws which is guarantied by the fourteenth amendment does not forbid classification. ”

“ Its monition to the railroads is not, 'Pay your debts without suit or you will, in addition, have o pay attorney's fees;' but rather, 'See to it that no fire escapes from your locomotives, for if it does you will be liable, not merely for the damage it causes, but also for the reasonable attorney's fees of the owner of the property injured or destroyed.' It has been frequently before the supreme court of Kansas, has always been so interpreted by that court, and its validity sustained on that ground. ”

“ From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits,-for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. ”

“ Neither can it make a classification of individuals or corporations which is purely arbitrary, and impose upon such class special burdens and liabilities. Even where the selection is not obviously unreasonable and arbitrary, if the discrimination is based upon matters which have no relation to the object sought to be accomplished, the same conclusion of unconstitutionality is affirmed. ”

“ Considered as such, it is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts.' And again, referring specifically to this matter (page 158, 165 U.S., and page 258, 17 Sup. Ct.) : 'While this action is for stock killed, the recovery of attorney's fees cannot be sustained upon the theory just suggested. There is no fence law in Texas. The legislature of the state has not deemed it necessary for the protection of life or property to require railroads to fence their tracks, and, as no duty is imposed, there can be no penalty for nonperformance. ”

“ Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they o not furnish just ground of complaint if they operate alike upon all persons and property, under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited ”

“ The locomotives, passing, as they do, at great rates of speed, and often when the wind is blowing a gale, will, unless the utmost care is taken (and sometimes in spite of such care) , scatter fire along the track. ”