Requirements contained in another statute or document may be
incorporated in a charter by generic or specific reference and, if
clearly identified, the charter has the same effect as if it itself
contained the restrictive words, and the question of the
constitutionality of the statute referred to is immaterial.
A street railway corporation taking a legislative charter
subject to all duties and restrictions set forth in all general
laws relating to corporations of that class cannot complain of the
unconstitutionality of a prior enacted statute compelling them to
transport children attending public schools at half price.
187 Mass. 436 affirmed.
The facts, which involve the constitutionality of the statute of
Massachusetts requiring the transportation of school children by
certain railways at half fare, are stated in the opinion.
Page 207 U. S. 83
MR. JUSTICE HOLMES delivered the opinion of the Court.
This was a complaint against the plaintiff in error for refusing
to sell tickets for the transportation of pupils to and from the
public schools at one-half the regular fare charged by it, as
required by Mass.Rev.Laws, c. 112, § 72. At the trial, the railway
company admitted the fact, but set up that the statute was
unconstitutional in that it denied to the company the equal
protection of the laws and deprived it of its property without just
compensation and without due process of law. In support of this
defense, it made an offer of proof which may be abridged into the
propositions that the regular fare was five cents; that, during the
last fiscal year, the actual and reasonable cost of transportation
per passenger was 3.86 cents, or, including taxes, 4.10 cents; that
pupils of the public schools formed a considerable part of the
passengers carried by it, and that the one street railway expressly
exempted by the law transported nearly one-half the passengers
transported on street railways and received nearly one-half the
revenue received for such transportation in the commonwealth. The
offer was stated to be made for the purpose of showing that the
plaintiff in error could not comply with the statute without
carrying passengers for less than a reasonable compensation
Page 207 U. S. 84
and for less than cost. The offer of proof was rejected, and a
ruling that the statute was repugnant to the Fourteenth Amendment
was refused. The plaintiff in error excepted and, after a verdict
of guilty and sentence, took the case to the Supreme Judicial
Court. 187 Mass. 436. That court overruled the exceptions,
whereupon the plaintiff in error brought the case here.
This Court is of opinion that the decision below was right. A
majority of the Court considers that the case is disposed of by the
fact that the statute in question was in force when the plaintiff
in error took its charter, and confines itself to that ground. The
section of the Revised Laws (c. 112, § 72) was a continuation of
Stat. 1900, c. 197. Rev.Laws, c. 226, § 2. Commonwealth v.
186 Mass. 376, 379-380. The act of incorporation
went into effect March 15, 1901. Stat. 1901, c. 159. By the latter
act, the plaintiff in error was "subject to all the duties,
liabilities, and restrictions set forth in all general laws now or
hereafter in force relating to street railways companies, except,"
etc. § 1. See also
§ 2. There is no doubt that, by the law
as understood in Massachusetts at least, the provisions of
Rev.Laws, c. 112, § 72, Stat. 1900, c. 197, if they had been
inserted in the charter in terms, would have bound the corporation,
whether such requirements could be made constitutionally of an
already existing corporation or not. The railroad company would
have come into being and have consented to come into being subject
to the liability, and could not be heard to complain. Rockport
Water Co. v. Rockport,
161 Mass. 279; Ashley v. Ryan,
153 U. S. 436
153 U. S. 443
Wight v. Davidson, 181 U. S. 371
181 U. S. 377
Newburyport Water Co. v. Newburyport, 193 U.
, 193 U. S.
If the charter, instead of writing out the requirements of
Rev.Laws, 112, § 72, referred specifically to another document
expressing them, and purported to incorporate it, of course, the
charter would have the same effect as if it itself contained the
words. If the document was identified, it would not matter what its
own nature or effect might be, as the force given to it
Page 207 U. S. 85
by reference and incorporation would be derived wholly from the
charter. The document therefore might as well be an
unconstitutional as a constitutional law. See Commonwealth v.
160 Mass. 307, 308. But the contents of a document
may be incorporated or adopted as well by generic as by specific
reference, if only the purport of the adopting statute is clear.
Corry v. Baltimore, 196 U. S. 466
196 U. S. 477
See Purdy v. Erie R. Co.,
162 N.Y. 42.
Speaking for myself alone, I think that there are considerations
on the other side from the foregoing argument that make it unsafe
not to discuss the validity of the regulation apart from the
supposition that the plaintiff in error has accepted it. See W.
W. Cargill Co. v. Minnesota, 180 U. S. 452
180 U. S. 468
Therefore I proceed to state my grounds for thinking the statute
constitutional irrespective of any disabilities to object to its
The discrimination alleged is the express exception from the act
of 1900 of the Boston Elevated Railway Company and the railways
then owned, leased, or operated by it. But, in the first place,
this was a legislative adjudication concerning a specific road, as
in Wight v. Davidson, 181 U. S. 371
a general prospective classification as in Martin v. District
of Columbia, 205 U. S. 135
205 U. S. 138
A general law must be judged by public facts, but a specific
adjudication may depend upon many things not judicially known.
Therefore the law must be sustained on this point unless the facts
offered in evidence clearly show that the exception cannot be
upheld. But the local facts are not before us, and it follows that
we cannot say that the legislature could not have been justified in
thus limiting its action. Covington & Lexington Turnpike
Road Co. v. Sandford, 164 U. S. 578
164 U. S.
-598. In the next place, if the only ground were that
the charter of the elevated railway contained a contract against
the imposition of such a requirement, it would be attributing to
the Fourteenth Amendment an excessively nice operation to say that
the immunity of a single corporation prevented the passage of an
otherwise desirable and wholesome law. It is unnecessary to
consider what would be the
Page 207 U. S. 86
effect on the statute by construction in Massachusetts if the
exception could not be upheld. For, if in order to avoid the Scylla
of unjustifiable class legislation, the law were read as universal
(see Dunbar v. Boston & Providence R. Co.,
383, 386), it might be thought by this Court to fall into the
Charybdis of impairing the obligation of a contract with the
elevated road, although that objection might, perhaps, be held not
to be open to the plaintiff in error here. Hatch v.
Reardon, 204 U. S. 152
204 U. S.
The objection that seems to me, as it seemed to the court below,
most serious is that the statute unjustifiably appropriates the
property of the plaintiff in error. It is hard to say that street
railway companies are not subjected to a loss. The conventional
fare of five cents presumably is not more than a reasonable fare,
and it is at least questionable whether street railway companies
would be permitted to increase it on the ground of this burden. It
is assumed by the statute in question that the ordinary fare may be
charged for these children or some of them when not going to or
from school. Whatever the fare, the statute, fairly construed,
means that children going to or from school must be carried for
half the sum that would be reasonable compensation for their
carriage if we looked only to the business aspect of the question.
Moreover, while it may be true that in some cases rates or fares
may be reduced to an unprofitable point in view of the business as
a whole or upon special considerations, Minneapolis & St.
Louis R. Co. v. Minnesota, 186 U. S. 257
186 U. S. 267
it is not enough to justify a general law like this that the
companies concerned still may be able to make a profit from other
sources, for all that appears. Atlantic Coast Line R. Co. v.
North Carolina Corporation Commission, 206 U. S.
, 206 U. S.
Notwithstanding the foregoing considerations, I hesitatingly
agree with the state court that the requirement may be justified
under what commonly is called the police power. The obverse way of
stating this power in the sense in which I am using the phrase
would be that constitutional rights, like others,
Page 207 U. S. 87
are matters of degree, and that the great constitutional
provisions for the protection of property are not to be pushed to a
logical extreme, but must be taken to permit the infliction of some
fractional and relatively small losses without compensation, for
some at least, of the purposes of wholesome legislation. Martin
v. District of Columbia, 205 U. S. 135
205 U. S. 139
Camfield v. United States, 167 U.
, 167 U. S.
It the Fourteenth Amendment is not to be a greater hamper upon
the established practices of the states in common with other
governments than I think was intended, they must be allowed a
certain latitude in the minor adjustments of life, even though by
their action the burdens of a part of the community are somewhat
increased. The traditions and habits of centuries were not intended
to be overthrown when that Amendment was passed.
Education is one of the purposes for which what is called the
police power may be exercised. Barbier v. Connolly,
113 U. S. 27
113 U. S. 31
Massachusetts always has recognized it as one of the first objects
of public care. It does not follow that it would be equally in
accord with the conceptions at the base of our constitutional law
to confer equal favors upon doctors, or working men, or people who
could afford to by 1000-mile tickets. Structural habits count for
as much as logic in drawing the line. And, to return to taking of
property, the aspect in which I am considering the case, general
taxation to maintain public schools is an appropriation of property
to a use in which the taxpayer may have no private interest, and,
it may be, against his will. It has been condemned by some
theorists on that ground. Yet no one denies its constitutionality.
People are accustomed to it and accept it without doubt. The
present requirement is not different in fundamental principle,
although the tax is paid in kind and falls only on the class
capable of paying that kind of tax -- a class of
-public corporations specially subject to legislative
Thus, the question narrows itself to the magnitude of the burden
imposed -- to whether the tax is so great as to exceed
Page 207 U. S. 88
the limits of the police power. Looking at the law without
regard to its special operation I should hesitate to assume that
its total effect, direct and indirect, upon the roads outside of
Boston, amounted to a more serious burden than a change in the law
of nuisance, for example, might be. See further Williams v.
Parker, 188 U. S. 491
Turning to the specific effect, the offer of proof was cautious. It
was simply that a "considerable percentage" of the passengers
carried by the company consisted of pupils of the public schools.
This might be true without the burden becoming serious. I am not
prepared to overrule the decision of the legislature and of the
highest court of Massachusetts, that the requirement is reasonable
under the conditions existing there, upon evidence that goes no
higher than this. It is not enough that a statute goes to the verge
of constitutional power. We must be able to see clearly that it
goes beyond that power. In case of real doubt a law must be
MR. JUSTICE HARLAN is of opinion that the constitutionality of
the act of 1900 is necessarily involved in the determination of
this case. He thinks the act is not liable to the objection that it
denies to the railway company the equal protection of the laws. Nor
does he think that it can be held, upon any showing made by this
record, to be unconstitutional as depriving the plaintiff in error
of its property without due process of law. Upon these grounds
alone, and independent of any other question discussed, he joins in
a judgment of affirmance.
MR. JUSTICE MOODY, having been of counsel, did not sit in this