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251, that it may depend upon degrees of evil without being arbitrary or unreasonable. We repeated the ruling in Heath & Milligan Mfg. Co. v. Worst, 207 U. S. 338, in Engel v. O'Malley, 219 U. S. 128, in Mutual Loan Co. v. Martell, 222 U. S. 225, and again in German Alliance Insurance Company v. Kansas, 233 U. S. 389, 418. In the latter case a distinction was sustained against a charge of discrimination between stock fire insurance companies and farmers' mutual insurance companies insuring farm property. If this power of classification did not exist, to what straits legislation would be brought. We may illustrate by the examples furnished by plaintiff in error. In the enumeration of those who, it is contended, by combination are able to restrain trade are included, among others, "persons engaged in domestic service" and "nurses," and because these are not embraced in the law, plaintiff in error, it is contended, although a combination of companies uniting the power of $120,000,000 and able thereby to engross 85% or 90% of the trade in agricultural implements, is nevertheless beyond the competency of the legislature to prohibit. As great as the contrast is, a greater one may be made. Under the principle applied a combination of all the great industrial enterprises (and why not railroads as well?) could not be condemned unless the law applied as well to a combination of maidservants or to infants' nurses, whose humble functions preclude effective combination. Such contrasts and the considerations they suggest must be pushed aside by government, and a rigid and universal classification applied, is the contention of plaintiff in error; and to this the contention must come. Admit exceptions, and you admit the power of the legislature to select them. But it may be said the comparison of extremes is forensic, and, it may be, fallacious; that there may be powerful labor combinations as well as powerful industrial combinations, and weak ones of both, and that the law to be valid cannot distin

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guish between strong and weak offenders. This may be granted (Engel v. O'Malley, supra), but the comparisons are not without value in estimating the contentions of plaintiff in error. The foundation of our decision is, of course, the power of classification which a legislature may exercise, and the cases we have cited, as well as others which may be cited, demonstrate that some latitude must be allowed to the legislative judgment in selecting the "basis of community." We have said that it must be palpably arbitrary to authorize a judicial review of it, and that it cannot be disturbed by the courts "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." Mo., Kan. & Tex. Ry. Co. v. May, 194 U. S. 267, 269; Williams v. Arkansas, 217 U. S. 79, 90; Watson v. Maryland, 218 U. S. 173, 179.

The instances of these cases are instructive. In the first there was a difference made between land owners as to liability for permitting certain noxious grasses to go to seed on the lands. In the second, the statute passed on made a difference between businesses in the solicitation of patronage on railroad trains and at depots. In the third a difference based on the evidence of qualification of physicians was declared valid.

In Western Union Telegraph Co. v. Milling Co., 218 U. S. 406, a distinction was made between common carriers in the power to limit liability for negligence. In Engel v. O'Malley, supra, a distinction between bankers was sustained; and in Provident Savings Institution v. Malone, 221 U. S. 660, deposits in savings banks were distinguished from deposits in other banks in the application of the statute of limitations.

Other cases might be cited whose instances illustrate the same principle and in which this court has refused to accept the higher generalizations urged as necessary to the fulfilment of the constitutional guaranty of the equal pro

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tection of the law, and in which we, in effect, held that it is competent for a legislature to determine upon what differences a distinction may be made for the purpose of statutory classification between objects otherwise having resemblances. Such power, of course, cannot be arbitrarily exercised. The distinction made must have reasonable basis. Magoun v. Illinois Trust &c. Bank, 170 U. S. 283; Clark v. Kansas City, 176 U. S. 114; Gundling v. Chicago, 177 U. S. 183; Petit v. Minnesota, 177 U. S. 164; Williams v. Fears, 179 U. S. 270; American Sugar Refining Co. v. Louisiana, 179 U. S. 89; Griffith v. Connecticut, 218 U. S. 563; Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U. S. 453, 466; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 79; Fifth Avenue Coach Co. v. New York, 221 U. S. 467; Murphy v. California, 225 U. S. 623; Rosenthal v. New York, 226 U. S. 260, 269, 270; Mo., Kan. & Tex. Ry. v. Cade, 233 U. S. 642.

And so in the case at bar. Whether the Missouri statute should have set its condemnation on restraints generally, prohibiting combined action for any purpose and to everybody, or confined it as the statute does to manufacturers and vendors of articles and permitting it to purchasers of such articles; prohibiting it to sellers of commodities and permitting it to sellers of services, was a matter of legislative judgment and we cannot say that the distinctions made are palpably arbitrary, which we have seen is the condition of judicial review. It is to be remembered that the question presented is of the power of the legislature, not the policy of the exercise of the power. To be able to find fault, therefore, with such policy is not to establish the invalidity of the law based upon it.

It is said that the statute as construed by the Supreme Court of the State comes within our ruling in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, but we do not think so. If it did we should, of course, apply that ruling here. Judgment affirmed.

Argument for Plaintiff in Error.

234 U. S.

INTERNATIONAL HARVESTER COMPANY OF AMERICA v. COMMONWEALTH OF KENTUCKY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

Nos. 276, 291, 292. Argued April 23, 24, 1914. Decided June 8, 1914.

An anti-trust criminal law may not necessarily be unconstitutional merely because it throws upon men the risk of rightly estimating what is an undue restraint of trade, but to compel a man to guess what the fair market value of commodities manufactured or sold by him would be under other than existing conditions is beyond constitutional limits.

The anti-trust provision of the constitution of 1891 and of the acts of 1900 and 1906 of Kentucky, as construed by the highest court of that State, are unconstitutional under the Fourteenth Amendment as offering no standard of conduct that it is possible to know in advance and comply with.

147 Kentucky, 564; Id. 795; 148 Kentucky, 572, reversed.

THE facts, which involve the constitutionality of antitrust provisions of the constitution and laws of Kentucky, are stated in the opinion.

Mr. Alexander Pope Humphrey and Mr. Edgar A. Bancroft, with whom Mr. Victor A. Remy was on the brief, for plaintiff in error:

The construction placed on the anti-trust statutes by the instructions of the lower court violated the Fourteenth Amendment.

The anti-trust statutes as construed are void for indefiniteness. See act of May 20, 1890, §§ 3915 and 3917, Ky. Stat.; § 198, Kentucky Const.; Ky. Stat., p. 145;

234 U. S.

Argument for Plaintiff in Error.

acts of March 21, 1906, p. 429 (Ky. Stat., § 3941a), and March 13, 1908, p. 38 (Ky. Stat., § 3941a).

The Kentucky anti-trust law, as construed and enforced, denies equal protection of the law contrary to the Fourteenth Amendment.

The instructions of the lower court placed a construction on the Kentucky anti-trust law which conflicts with the Fourteenth Amendment. They, in effect, require superior articles to be sold at the same prices as inferior ones.

The Kentucky anti-trust statutes as construed by the Court of Appeals are so indefinite that they are void as criminal laws.

The Kentucky anti-trust statutes as construed and enforced deny equal protection of the law.

The history of the laws and the decisions show the above is true.

The fact that Kentucky is an agricultural State and the "Night Riding" movement tend to show the purpose of the acts.

The construction given the conflicting statutes gave only an apparent equality to manufacturers and merchants as compared to farmers.

As a matter of fact, the laws as construed and enforced, deny manufacturers and dealers equal protection.

The law itself must save the rights of parties, and they cannot be left to the discretion of the courts.

In support of these contentions, see Am. Tobacco Co. v. Commonwealth, 115 S. W. Rep. 754; Collins v. Commonwealth, 141 Kentucky, 565; Commonwealth v. Bavarian Brewing Co., 112 Kentucky, 925, 928; Commonwealth v. Grinstead, 108 Kentucky, 59, 67, 76; Commonwealth v. Hodges, 137 Kentucky, 233; Commonwealth v. Int. Harvester Co., 131 Kentucky, 551; Commonwealth v. Int. Harvester Co., 131 Kentucky, 768; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Equitable Society v. Common

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