State legislation which, in carrying out a public purpose, is
limited in its application is not a denial of equal protection of
the laws within the meaning of the Fourteenth Amendment if, within
the sphere of its operation, it affects alike all persons similarly
situated.
Barbier v. Connolly, 113 U. S.
27.
When a state legislature has declared that, in its opinion, the
policy of the state requires a certain measure, its action should
not be disturbed by the courts under the Fourteenth Amendment
unless they can clearly see that there is no reason why the law
should not be extended to classes left untouched.
Missouri,
Kansas & Texas Railway Co. v. May, 194 U.
S. 267.
A classification in a state statute prohibiting drumming or
soliciting on trains for business for any "hotels, lodging houses,
eating houses, bath houses, physicians, masseurs, surgeon or other
medical practitioner" will not be held by this Court to be
unreasonable and amounting to denial of equal protection of the
laws after it has been sustained by the state court as meeting an
existing condition which was required to be met, and so
held that the anti-drumming or soliciting law of Arkansas
of 1907 is not unconstitutional because it relates to the above
classes alone, and does not prohibit drumming and soliciting for
other purposes.
5 Ark. 470 affirmed.
The facts, which involve the constitutionality of the
anti-drumming law of Arkansas of 1907, are stated in the
opinion.
Page 217 U. S. 85
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Plaintiff in error was convicted for violating a statute of the
State of Arkansas entitled
"An Act for the Protection of Passengers, and for the
Suppression of Drumming and Soliciting upon Railroad Trains and
upon the Premises of Common
Page 217 U. S. 86
Carriers,"
approved April 30, 1907.
The first and second sections of that act are as follows:
"SEC. 1. That it shall be unlawful for any person or persons,
except as hereinafter provided in section 2 of this act, to drum or
solicit business or patronage for any hotel, lodging house, eating
house, bath house, physician, masseur, surgeon, or other medical
practitioner on the trains, cars, depots of any railroad or common
carrier operating or running within the State of Arkansas."
"Any person or persons plying or attempting to ply said vocation
of drumming or soliciting, except as provided in section 2 of this
act, upon the trains, cars, depots of said railroads or common
carriers shall be deemed guilty of a misdemeanor, and upon
conviction thereof shall be punished by a fine of not less than
fifty ($50) nor more than one hundred dollars ($100) for each
offense."
"SEC. 2. That it shall be unlawful for any railroad or common
carrier operating a line within the State of Arkansas knowingly to
permit its trains, cars, or depots within the state to be used by
any person or persons for drumming or soliciting business or
patronage for any hotel, lodging house, eating house, bath house,
physician, masseur, surgeon, or other medical practitioner, or
drumming or soliciting for any business or profession whatsoever,
except that it may be lawful for railroads or common carriers to
permit agents of transfer companies on their trains to check
baggage or provide transfers for passengers, or for persons or
corporations to sell periodicals and such other articles as are
usually sold by news agencies for the convenience and accommodation
of said passengers."
"And it shall be the duty of the conductor or person in charge
of the train of any railroad or common carrier to report to the
prosecuting attorney any person or persons found violating any of
the provisions of this act, and upon a willful failure or neglect
to report any such person or persons known to be violating the
provisions of this act by drumming
Page 217 U. S. 87
or soliciting, said conductor or other person in charge of such
train shall be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined not less than fifty nor more than one
hundred dollars."
The case was tried upon the following agreed statement of
facts:
"The defendant has for six years been keeping a boarding house
in the city of Hot Springs, and was keeping the same on the 10th
day of December, 1907, when he entered a train of the Little Rock
& Hot Springs Western Railway Company, while running in the
County of Garland and State of Arkansas, and solicited and drummed
the passengers on said train to induce them to come to his said
boarding house to board during their sojourn in said city, and said
defendant was so engaged in drumming and soliciting upon said train
when he was arrested. He had paid has fare as a passenger on said
train, and was riding as such passenger while engaged in drumming
and soliciting."
Plaintiff in error challenged the act as unconstitutional on the
grounds that it deprived him of liberty and property without due
process of law, and also of the equal protection of the law
guaranteed by the Fourteenth Amendment.
The principles that govern this case have been settled by very
many adjudications of this Court. They were sufficiently set forth
in
McLean v. Arkansas, 211 U. S. 546,
in which a statute making it unlawful for mine owners employing ten
or more men underground in mining coal and paying therefor by the
ton mined, to screen the coal before it was weighed, was held
valid, and also that it was not an unreasonable classification to
divide coal mines into those where less than ten miners were
employed and those where more than that number were employed, and
that a state police regulation was not unconstitutional under the
equal protection clause of the Fourteenth Amendment because only
applicable to mines where more than ten miners were employed. This
Court in that case, discussing the police power, said:
Page 217 U. S. 88
"In
Gundling v. Chicago, 177 U. S.
183, this Court summarized the doctrine as follows:"
" Regulations respecting the pursuit of a lawful trade or
business are of very frequent occurrence in the various cities of
the country, and what such regulations shall be, and to what
particular trade, business, or occupation they shall apply, are
questions for the state to determine, and their determination comes
within the proper exercise of the police power by the state, and
unless the regulations are so utterly unreasonable and extravagant
in their nature and purpose that the property and personal rights
of the citizen are unnecessarily, and in a manner wholly arbitrary,
interfered with or destroyed, without due process of law, they do
not extend beyond the power of the state to pass, and they form no
subject for federal interference."
"In
Jacobson v. Massachusetts, 197 U. S.
11, this Court said:"
" But the liberty secured by the Constitution of the United
States to every person within its jurisdiction does not import an
absolute right in each person to be at all times, and in all
circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the
common good."
"It is then the established doctrine of this Court that the
liberty of contract is not universal, and is subject to
restrictions passed by the legislative branch of the government in
the exercise of its power to protect the safety, health, and
welfare of the people. . . ."
"The legislature, being familiar with local conditions, is
primarily the judge of the necessity of such enactments. The mere
fact that a court may differ with the legislature in its views of
public policy, or that judges may hold views inconsistent with the
propriety of the legislation in question, affords no ground for
judicial interference unless the act in question is unmistakably
and palpably in excess of legislative power."
"
* * * *"
"It the law in controversy has a reasonable relation to the
Page 217 U. S. 89
protection of the public health, safety, or welfare, it is not
to be set aside because the judiciary may be of opinion that the
act will fail of its purpose, or because it is thought to be an
unwise exertion of the authority vested in the legislative branch
of the government."
And see Donovan v. Pennsylvania Co., 199 U.
S. 279.
In the present case, the Supreme Court of Arkansas (
Williams
v. State, 85 Ark. 470) said:
"The legislature clearly has the power to make regulations for
the convenience and comfort of travelers on railroads, and this
appears to be a reasonable regulation for their benefit. It
prevents annoyance from the importunities of drummers. It is
suggested in argument that the statute was especially aimed at the
protection of travelers to the City of Hot Springs. If this be so,
we can readily see additional reason why the regulation is a
wholesome one. A large percentage of those travelers are persons
from distant states, who are mostly completely strangers here, and
many are sick. Drummers who swarm through the trains soliciting for
physicians, bath houses, hotels, etc., make existence a burden to
those who are subjected to their repeated solicitations. It is true
that the traveler may turn a deaf ear to these importunities, but
this does not render it any the less unpleasant and annoying. The
drummer may keep within the law against disorderly conduct and
still render himself a source of annoyance to travelers by his much
beseeching to be allowed to lead the way to a doctor or a
hotel."
"It is also argued that the act, literally construed, would
prevent any person of the classes named from carrying on a private
conversation on a train concerning his business. This is quite an
extreme construction to place upon the statute, and one which the
legislature manifestly did not intend. We have no such question,
however, before us on the facts presented in the record."
"This statute is not an unreasonable restriction upon the
privilege one should enjoy to solicit for his lawful business,
Page 217 U. S. 90
which, it is rightly urged, is an incident to any business. It
does not prevent anyone from advertising his business or from
soliciting patronage except upon trains, etc. This privilege is
denied him for the public good. It is a principle which underlies
every reasonable exercise of the police power, that private rights
must yield to the common welfare."
As to the objection that the act discriminated against plaintiff
in error and denied him the equal protection of the law because
forbidding the drumming or soliciting business or patronage of the
trains for any "hotel, lodging house, eating house, bath house,
physician, masseur, surgeon, or other medical practitioner," which,
it was contended, was an unreasonable classification, the state
supreme court said:
"The legislature, in framing this statute, met a condition which
existed, and not an imaginary or improbable one. The class of
drummers or solicitors mentioned in the act are doubtless the only
ones who ply their vocation to any extent on railroad trains. It is
rare that the commercial drummer finds opportunity to meet
customers and solicit trade on trains; therefore the lawmakers
deemed it unnecessary to legislate against an occasional act of
that kind."
It is settled that legislation which,
"in carrying out a public purpose, is limited in its application
if, within the sphere of its operation, it affects alike all
persons similarly situated, is not within the Amendment."
Barbier v. Connolly, 113 U. S. 27,
and
"when a state legislature has declared that, in its opinion,
policy requires a certain measure, its action should not be
disturbed by the courts under the Fourteenth Amendment unless they
can see clearly that there is no fair reason for the law that would
not require with equal force its extension to others whom it leaves
untouched."
Missouri, Kansas & Texas Ry. Co. v. May,
194 U. S. 267.
Judgment affirmed.