Fraser v. McConway & Torley Co.

• Decision Date: 26 August 1897
• Citation: 82 F. 257
• Parties: FRASER v. McCONWAY & TORLEY CO.
• Court: United States Circuit Court, District of Pennsylvania

82 F. 257

FRASER v. McCONWAY & TORLEY CO.

United States Circuit Court, D. Pennsylvania

August 26, 1897

Knox &amp Reed, for complainant.

Thos Patterson and N. S. Williams, for defendant.

ACHESON Circuit Judge.

The first section of an act of assembly of the state of Pennsylvania approved the 15th day of June, 1897, provides:

'That all persons, firms, associations, or corporations employing one or more foreign born unnaturalized male persons over twenty-one years of age within this commonwealth, shall be and are hereby taxed at the rate of three cents per day for each day each of such foreign born unnaturalized male persons may be employed, which tax shall be paid into the respective county treasuries; one-half of which tax to be distributed among the respective school districts of each county, in proportion to the number of schools in said districts; the other half of said tax shall be used by the proper county authorities for defraying the general expenses of county government.'

It is further provided by the act:

'That all persons, firms, associations, and corporations shall have the right to deduct the amount of the tax provided for in this act from the waves of any and all employees, for the use of the proper county and school district as aforesaid.'

As the employer is authorized by the act to deduct from the wages of the employe the prescribed tax, it is quite clear that the tax is upon the employe, and not upon the employer. Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 239, 10 Sup.Ct. 533.

The court is here called upon to consider whether these provisions of this act of assembly are in conflict with the constitution or laws of the United States. The fourteenth amendment to the constitution of the United States declares:

'Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

The general purpose and scope of these constitutional provisions were thus stated by Mr. Justice Field in delivering the opinion of the supreme court of the United States in Barbier v. Connolly, 113 U.S. 27, 31, 5 Sup.Ct. 539:

'The fourteenth amendment, in declaring that no state 'shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction 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 property, 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 any one, 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.' Congress has enforced the above-quoted provisions of the fourteenth amendment by legislation embodied in sections 1977 and 1979 of the Revised Statutes. The former of these sections enacts:

'All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens and shall be subject

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