process of law.62 Nor does such a deprivation of property arise under a statute empowering a city to require the removal of telephone wires to underground conduits, as the enactment is within the police power of the State.63 But a municipal corporation with charter authority to permit the use of its streets, to control them, and to regulate the construction of railroad tracks thereon acts, in resuming control of such streets, as agent of the State within the above constitutional provision that no State shall deprive any person of property without due process of law.64 The construction, however, and maintenance by a city of its own waterworks plant does not 62 West Chicago Street Railroad Co. v. Illinois, 201 U. S. 506, 50 L. ed. 845, 26 Sup. Ct. 518, aff'g 214 Ill. 9, 73 N. E. 393, following Chicago, Burlington & Quincy Ry. Co. v. Drainage Commrs., 200 U. S. 561, 26 Sup. Ct. 341, 50 L. ed. 596. In this case a railroad company was required to remove a bridge, unless it abandoned or surrendered its right to a crossing at that point, and to erect at its own expense and maintain a new bridge in conformity with regulations established by drainage commissioners under authority of the State, and it was held that such requirement, if enforced, would not amount to a taking of private property for public use within the meaning of the Constitution, nor to a denial of the equal protection of the laws. See Bristol County, In re, 193 Mass. 257, 79 N. E. 339; Stat. 1900, p. 411, c. 439, § 6. 63 City of Geneva v. Geneva Teleph. Co., 62 N. Y. Supp. 172, 30 Misc. 236 (Laws 1897, c. 360, § 58, as am'd by Laws 1899, c. 405), citing Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079; Western Union Teleg. Co. v. City of New York, 38 Fed. 552; American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 21 Am. St. Rep. 764, 26 N. E. 919, 39 Am. & Eng. Corp. Cas. 526, 3 Am. Elec. Cas. 142, aff'g 58 Hun, 610, 35 N. Y. St. R. 606, 12 N. Y. Supp. 536; People v. King, 110 N. Y. 418, 423, 18 N. E. 245, 1 L. R. A. 293, 18 N. Y. St. R. 353, aff'g 42 Hun, 186, 5 N. Y. St. R. 138, 25 Wkly. D. 212; People v. Squire, 107 N. Y. 593, 12 N. Y. St. R. 832, 28 Wkly. D. 175, 14 N. E. 823, 2 Am. Elec. Cas. 176, aff'd 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. 880, 4 Am. Elec. Cas. 122. See Joyce on Electric Law (2d ed.), §§ 420 et seq. 64 Iron Mountain R. Co. v. Memphis, 96 Fed. 113, 37 C. C. A. 410, citing Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. 418; Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979; Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. 130; Reagan v. Farmers' Loan & T. Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014, 4 Inters. Comm. Rep. 575; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. 1108; Yick Wo v. Hopkins, 118 U. S. 356, Sup. Ct., 30 L. ed. 220; Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567. See Joyce on Electric Law (2d ed.), § 229. constitute such a taking of the property of a corporation operating its works under a franchise granted by that city.65 Nor is a railroad deprived of its property without due process of law or denied the equal protection of the laws by a statute which provides that every railroad company organized and doing business in the State of the statutory enactment shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employees, to any person sustaining such damage. 65 Mayor, etc., of City of Meridian v. Farmers' Loan & Trust Co., 143 Fed 67, rev'g Farmers' Loan & Trust Co. v. City of Meridian, 139 Fed. 673; Revere Water Co. v. Town of Winthrop, 192 Mass. 455, 78 N. E. 497; Stat. 1905, p. 488, c. 477. 66 Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. 1161. See also Tullis v. Lake Erie & Western R. Co., 175 U. S. 348, 44 L. ed. 192, 20 Sup. Ct. 136; Chicago, Kansas & Western Rd. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. ed. 675. Eight-hour law regulating period of employment by corporations of workingmen in mines, smelters and other institutions for the reduction or refining of ores or metals, except in certain cases of emergency, is valid exercise of police power of State and does not violate the provisions of the Fourteenth Amendment by abridging the privileges or immunities of citizens of the United States, or by depriving them of their property, or by denying them the equal protection of the laws. Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. 383. See Atkin v. State of Kansas, 191 U. S. 207, 48 L. ed. 148, 24 Sup. Ct. 124, aff'g State v. Atkin, 64 Kan. 174, 67 Pac. 519; Again, due process of law is Boyce, Ex parte, 27 Nev. 299, 75 Pac. 1; People v. Orange County Road Const. Co., 175 N. Y. 84, 67 N. E. 129, rev'g 77 N. Y. Supp. 16, 73 App. Div. 580, citing Connolly & Dee v. Union Sewer Pipe Co., 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. 431; Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. ed. 92; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. ed. 666; Pell's Estate, Matter of, 171 N. Y. 48, 63 N. E. 789, 89 Am. St. Rep. 791, 57 L. R. A. 540; People ex rel. Tyroler v. Warden, 157 N. Y. 116, 51 N. E 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763; Colon v. Link, 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302. Examine Ellis v. United States, 206 U. S. 246, 51 L. ed. 27 Sup. Ct. Statute providing for payment monthly of employees of corporations and giving lien for wages with preference over other liens, with certain exceptions, and allowing a reasonable attorney's fee in case of action brought does not violate a state constitutional provision as to deprivation of property without due process of law, nor interfere with the liberty to contract. Skinner v. Garnett Gold Min. Co., 96 Fed. 735; Stat. Cal. 1897, p. 231, §§ 1, 2. 68 not denied by the imposition of a tax on transfers of stock in domestic and foreign corporations.67 Nor is this provision as to due process of law violated by a mechanic's lien law which specifies the form of contract requisite to obtain a lien but which does not preclude any other form of contract. And this clause of the Constitution is held to be sufficiently satisfied by the provisions of the Massachusetts Mill Act which gives damages or compensation within a certain period for the harm actually done to lands overflowed or otherwise injured, the right of the lower owner only becoming complete when the land is flowed, and then being only a right to maintain a dam, subject to payment to the upper owners, as above stated, for the injury sustained.69 § 299. Same Subject Continued.-A statute prohibiting effecting insurance on property in the State, by any person. therein, in any marine insurance company which has not complied in all respects with the laws of the State of enactment, and providing a fine for noncompliance with such act, violates the due process clause of the Constitution when applied to a contract of insurance made in another State with an insurance company there, where the premiums and losses were to be paid there.70 So compelling the acceptance of the arbitrary 68 Chicago Lumber Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. 786. 67 People v. Reardon, 184 N. Y. of the Federal Supreme Court might 431, 77 N. E. 970, aff'g 97 N. Y. Supp. depend upon the interpretation of 535, 110 App. Div. 821; Laws 1905, the act by the state court, it was pp. 474, 477, c. 241, §§ 315, 324. held that the bill should be dismissed without prejudice, or retained until plaintiff's rights should be determined in an action for damages under the statute pending in the state courts. Otis Co. v. Ludlow Mfg. Co., 201 U. S. 140, 26 Sup. Ct. 353, 50 L. ed. 696. 6 Otis Co. v. Ludlow Mfg. Co., 186 Mass. 89, 70 N. E. 1009, 104 Am. St. Rep. 563. Modified as follows: In a suit at equity brought by the upper owner to restrain the lower owner from building a dam, the state court having decided generally that the Mill Act is valid, but not having 155 U. S. 648, 39 L. ed. 297, 15 Sup. definitely expressed itself as to its Ct. 207. constitutionality, and as the opinion 70 Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. 427. Distinguishing Hooper v. California, decision of a statutory umpire as to the weight of grain and precluding the showing of any error by him violates the due process of law clause.71 Property is also taken without due process of law by the requirement of an ordinance that street railroads accept transfers from other companies with which it has no connection and which thereby necessitates carrying passengers without charge, and this is so even though a reciprocal obligation is imposed upon such other companies and an increase of business results therefrom." And a statute which attempts to change the ownership of private property without due process of law is unconstitutional.73 Again, a law operates to deprive railroad companies of property without due process of law, and denies to them the equal protection of the law, where it singles them out of all citizens and corporations and requires them to pay, in certain cases, attorneys' fees to the parties successfully suing them, while it gives to them no like or corresponding benefit.74 But the Nebraska statute of 1899,75 by which the court upon rendering judgment for a total loss sued for against an insurance company upon any policy of insurance against loss on real property by fire, tornado or lightning shall allow the plaintiff a reasonable attorney's fee to be taxed as costs, is not repugnant to the equality clause of the Fourteenth Amendment either because it arbitrarily subjects insurance companies to a liability for such fees when other defendants in other cases are not subjected to such burden, or because the fee is to be 71 Vega Steamship Co. v. Con- April 5, 1889. The claims under this solidated Elevator Co., 75 Minn. statute were those for "personal serv308, 77 N. W. 973, 43 L. R. A. 843. ices rendered or for labor done, or for 72 Chicago City Ry. Co. v. Chicago, damages, or for overcharges on 142 Fed. 844. freight, or claims for stock killed or injured by the train of any railway company, provided that such claim for stock killed or injured shall be presented to the agent," etc. See Joliffe v. Brown, 14 Wash. 155, 44 Pac. 149, 3 Am. & Eng. R. Cas. (N. S.) 254. 73 People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 19 N. Y. St. R. 173, rev'g 45 Hun, 519, 10 N. Y. St. R. 596, 27 Wkly. D. 365, Laws N. Y. 1886, C. 271. 74 Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 650, 41 L. ed. -, 17 Sup. Ct. act of Texas, 75 Laws 1899, chap. 48, §§ 43-45. imposed on the insurance companies but not on the insured when the suit is successfully defended, or because the statute arbitrarily distinguished between different classes of policies allowing the fee in certain cases and not in others.76 § 300. Equal Protection of the Laws.-There cannot be an exact exclusion or inclusion of persons and things in a classification for governmental purposes, and a general classification, otherwise proper, will not be rendered invalid because certain imaginary and unforeseen cases have been overlooked. In such a case there is no substantial denial of the equal protection of the laws within the meaning of the Fourteenth Amendment; " and a state constitutional provision declaring that protection to persons and property shall be impartial and complete is the equivalent to a declaration that the equal protection of the laws shall not be denied to any person.78 So it is not in the power of one State, when establishing regulations for the conduct of private business of a particular kind, to give its own citizens essential privileges, connected with that business, which it denies to citizens of other States.79 A state statute may, however, without violating the equal protection clause of the Fourteenth Amendment, put into one class all engaged in business of a special and public character, and require them to perform a duty which they can do better and more quickly than others and impose a not exorbitant penalty for the non-performance thereof.80 And the peculiar 76 Farmers' & Merchants' Ins. Co. v. Dobney, 189 U. S. 301, 23 Sup. Ct. 565, 47 L. ed. 821, aff'g 62 Neb. 213, 86 N. W. 1070. See Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126, 47 L. ed. 77 Oxan Lumber Co. V. Union County National Bank of Liberty, 207 U. S. 251. 78 Georgia R. & Banking Co. v. Wright, 125 Ga. 589, 54 S. E. 52; Central of Georgia Ry. Co. v. Same, 125 Ga. 617, 54 S. E. 64, both rev'd, upon point that due process of law acquires opportunity to be heard as to validity of tax and amount of assessment, in 207 U. S. 127. See Walston v. Nevins, 128 U. S. 578, 32 L. ed. 544, 9 Sup. Ct. 192. 79 Blake v. McClung, 172 U. S. 239, 43 L. ed. 432, 19 Sup. Ct. 165. 80 Seaboard Air Line Ry. v. Seegaers, 207 U. S. 73, aff'g 73 S. C. 71. Examine Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 27 Chic. Leg. N. 270, 29 L. R. A. 79. |