In re M. G. Gardner

• Decision Date: 11 March 1911
• Docket Number: 16,883
• Citation: 84 Kan. 264,113 P. 1054
• Parties: In re M. G. GARDNER, Petitioner
• Court: Kansas Supreme Court

113 P. 1054

84 Kan. 264

In re M. G. GARDNER, Petitioner

No. 16,883

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Original proceeding in habeas corpus.

Petitioner discharged.

SYLLABUS

SYLLABUS BY THE COURT.

CONSTITUTIONAL LAW--Equal Protection of the Law--Transportation of Militia at Reduced Rates. Chapter 198 of the Laws of 1895, providing that the officers and men of the Kansas national guard shall, when in the performance of military duty, be transported on all railroads of the state at the rate of one cent per mile, denies to the railroad companies the equal protection of the laws guaranteed by the fourteenth amendment to the constitution of the United States.

R. W. Blair, H. A. Scandrett, and B. W. Scandrett, for the petitioner.

John S. Dawson, attorney-general, S. N. Hawks, assistant attorney-general, Charles D. Shukers, special assistant attorney-general, E. R. Simon, county attorney, and John Marshall, for the respondent.

OPINION

BURCH, J.:

Chapter 198 of the Laws of 1895 (amended by Laws 1905, ch. 352, § 1, Gen. Stat. 1909, §§ 7160-7162) provides that whenever it may be necessary for any or all of the officers or men of the Kansas national guard or Kansas reserve militia to travel upon any railroad of the state, under orders from competent authority to perform military duty, the transportation shall be furnished at the rate of one cent per mile for the distance traveled by each person. Orders for transportation issued by the adjutant general must be honored in lieu of fare, and then be presented to the military board, to be audited and paid at the fixed rate. Willful refusal on the part of the agent of a railroad company to observe the terms of the act is punishable by fine. In June, 1909, the petitioner, as agent of the Union Pacific Railroad Company at Topeka, refused a requisition duly made for the transportation of Major Arthur Mills, of the Kansas national guard, at the statutory rate. The petitioner was arrested, convicted and fined, and ordered committed to the jail of Shawnee county until the fine and costs should be paid. After the time for an appeal had expired he instituted this proceeding in habeas corpus to secure his release from custody under a commitment issued upon the judgment. The principal question raised upon the sheriff's return to the writ of habeas corpus is whether the statute denies the railroad company the equal protection of the laws guaranteed by the fourteenth amendment to the constitution of the United States.

In 1883 (Laws 1883, ch. 124, § 1; see Gen. Stat. 1909, § 7198) the legislature fixed three cents per mile as the maximum rate for carrying adult passengers, and this rate has not since been changed by law. In 1907 the board of railroad commissioners issued an order fixing the maximum rate at two cents per mile. The order is still in force, and at all times material to the controversy was being observed by the railroad companies. These measures were adopted pursuant to the power of the state to regulate rates and protect the traveling public from unjust exactions, and they reflect the judgment of the constituted authorities as to what is reasonable for the railroads to charge and for the people to pay. Presumably two cents per mile is a reasonable rate for all adult passengers, or it would not have been promulgated and would not be maintained.

Ordinarily, when the ratemaking power of the state has been exercised and a reasonable maximum fare for people generally has been established, it is not then competent for the legislature to compel the railroad companies to make exceptions in favor of certain individuals. The legislature of the state of Michigan amended the general railroad law of that state so that it required the sale of one-thousand-mile tickets at a reduced rate, required such tickets to be issued on request to the purchaser, his wife and children, and made them valid for two years from the date of purchase. The supreme court of the United States held this law to be in violation of that portion of the constitution of the United States which forbids the taking of property without due process of law and which secures the equal protection of the laws. (Lake Shore &c. Railway Co. v. Smith, 173 U.S. 684, 43 L.Ed. 858, 19 S.Ct. 565.) The views of the court are indicated in the following extracts from the opinion:

"The power of the legislature to enact general laws regarding a company and its affairs does not include the power to compel it to make an exception in favor of some particular class in the community and to carry the members of that class at a less sum than it has the right to charge for those who are not fortunate enough to be members thereof. This is not reasonable regulation. . . . If the general power exist, then the legislature can direct the company to charge smaller rates for clergymen or doctors, for lawyers or farmers or school-teachers, for excursions, for church conventions, political conventions, or for all or any of the various bodies that might desire to ride at any particular time or to any particular place.

"If the legislature can interfere by directing the sale of tickets at less than the generally established rate, it can compel the company to carry certain persons or classes free. If the maximum rates are too high in the judgment of the legislature it may lower them, provided they do not make them unreasonably low, as that term is understood in the law; but it can not enact a law making maximum rates, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper. . . . The legislature having fixed a maximum rate at what must be presumed, prima facie, to be also a reasonable rate, we think the company then has the right to insist that all persons shall be compelled to pay alike, that no discrimination against it in favor of certain classes of married men or families, excursionists or others, shall be made by the legislature. If otherwise, then the company is compelled at the caprice or whim of the legislature to make such exceptions as it may think proper and to carry the excepted persons at less than the usual and legal rates, and thus to part in their favor with its property without that compensation to which it is entitled from all others, and therefore to part with its property without due process of law. The affairs of the company are in this way taken out of its own management, not by any general law applicable to all, but by a discrimination made by law to which the company is made subject. Whether an act of this nature shall be passed or not is not a matter of policy to be decided by the legislature. It is a matter of right of the company to carry on and manage its concerns subject to the general law applicable to all, which the legislature may enact in the legal exercise of its power to legislate in regard to persons and things within its jurisdiction. . . . In this case there is not an exercise of the power to fix maximum rates. There is not the exercise of the acknowledged power to legislate so as to prevent extortion or unreasonable or illegal exactions. The fixing of the maximum rate does that. It is a pure, bald and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road and permitting them to do so at a less expense than others, provided they buy a certain number of tickets at one time. It is not legislation for the safety, health or proper convenience of the public, but an arbitrary enactment in favor of the persons spoken of, who in the legislative judgment should be carried at a less expense than the other members of the community. There is no reasonable ground upon which the legislation can be rested unless the simple decision of the legislature should be held to constitute such reason." (pp. 692-698.)

This court is not inclined to the view that the power of the legislature is completely exhausted by a maximum-rate regulation, and does not so interpret the decision quoted. But members of the national guard can not be segregated from the body of the state's citizens and made a preferred class, unless they sustain some relation to transportation by rail which, in the nature of things, indicates they should have the benefit of an exceptional rate. Classification, to be valid, must be based upon differences in character, condition or situation which lead to that difference in regulation which the statute undertakes to make. Thus, in the case involving a reduced rate for school children on street cars (Commonwealth v. Interstate &c. Street R'y, 187 Mass. 436, 73 N.E. 530), the considerations which moved the court to sustain the rate were, among others, that pupils go to and from the public schools at hours when other persons make little use of the cars; that they are of such a size and age that they occupy much smaller spaces than other passengers; and that the difference in rate was of so much importance to parents that twice as many pupils would ride at half rate as at full rate, so that...