the dairy, the dairy utensils, or the stable, if these be uncleanly. Thorough inspections of cattle and dairies may reduce the frequen

and purified, and shall cause all milk to be removed without delay from the rooms in which cows are kept. "6. Every person keeping cows for the pro-cy of infection. The preservation of the pubduction of milk for sale shall cause every such cow to be cleaned every day and to be properly fed and watered with abundance of pure clean water.

"7. Any enclosure where cows are kept shall be graded and drained, so as to keep the surface reasonably dry; no garbage, fecal matter, or similar matter shall be placed or allowed to remain in such enclosure unless sufficient straw or similar good absorbent material be used to keep the enclosure clean at all times, and no open drains shall be allowed to run through it. And any person who shall ship or sell milk contrary to the aforesaid order of said board shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one dollar nor more than twenty dollars for each day during which shipments shall be made after notice of such order."

The indictment charges that the appellee, being a dairyman engaged in supplying milk to cities, towns, and villages within this state, failed, neglected, and refused to register his herd of cattle with the live-stock sanitary board. The demurrer admits these averments to be true.

|lic health by preventing the sale of infected
milk, or of milk that may come from infected
sources, when milk, by reason of its almost
universal use, in one form or another, as an
article of food, is especially likely to spread
disease, is one of the most imperative duties
of the state, and obviously one most incon-
testably within the scope of the police power.
As a means to that end,—the preservation of
the public health,—a requirement that every
person selling milk for consumption in cities,
towns, and villages shall cause his herd or
cattle to be registered with the live-stock
sanitary board is a reasonable and an appro-
priate enactment; and the subsequent pro-
visions are necessary parts of the scheme.
The 19th section no more deprives the indi-
vidual of due process of law than did the or-
dinance in Easton Comrs. v. Covey, 74 Md.
262, which prohibited the erection of any
building without a permit from the commis-
sioners of the town; or an ordinance forbid-
ding the keeping of swine without a permit
in writing from the board of health (Quincy
v. Kennard, 151 Mass. 563); or an ordinance
requiring the written permission of the may-
or of a town before any person was allowed
to move a building along the streets (Wilson
v. Eureka City, decided Feb. 20, 1899, 173
U. S. 32, 43 L. ed. 603), or the ordinance re-
quiring a license for the removal of the con-
tents of privies, and subjecting the holders
of such license to the orders of the board of
health (Boehm v. Baltimore, 61 Md. 259).
The constitutional limitations which declare
that no person shall be deprived of his prop-
erty or liberty without due process of law
have never been construed as being "incom-
patible with the principle-equally vital, be-
cause essential to the peace and safety of so-
ciety-that all property in this country is
held under the implied obligation that the
owner's use of it shall not be injurious to the
community.
The exercise of the po-
lice power by the destruction of property
which is itself a public nuisance, or the pro-
hibition of its use in a particular way, where-
by its value becomes depreciated, is very dif-
ferent from taking property for public use,
or from depriving a person of his property
without due process of law." Mugler v.
Kansas, 123 U. S. 623, 31 L. ed. 205.

So far as the 19th section of the act is concerned, it is not perceived that, standing alone, it deprives the appellee of due process of law in any way whatever. This is not a proceeding under the 20th section. The requirement of the 19th section would be of little value if it were not followed by, and did not form a part of, the other provisions of the statute. The entire act is strictly a police regulation, enacted for the purpose of preserving the public health. The strides which our knowledge of bacteriology has made in recent years are generally known, and the ubiquitous microbe has been shown to be a potent agent in the propagation of disease. Tuberculosis, identical, it is said, with consumption in man, is caused by the organism known as "Koch's bacillus," and is readily communicable through milk. Diphtheria is another contagious disease whose specific organism finds in milk favorable conditions of growth, and there is abundant evidence to show that contaminated milk transmits this contagion. Cholera has again and again been traced to the same source, and scarlet fever is generally believed to be It was earnestly insisted that the act of communicable by infected milk, and it is said 1898 deprives the appellee of the equal prothat it may be even caused by an eruption on tection of the law guaranteed by the 14th the udder. Typhoid fever bacilli have been Amendment. This amendment was called to detected in milk supposed to be wholesome. the attention of the Supreme Court for the Besides conveying disease, milk occasionally first time in 1872, in the Slaughter-House contains certain germs which form poison- Cases, 16 Wall. 36, 21 L. ed. 394, and since ous products known as "ptomaines." Milk then it has been repeatedly considered and inmay carry the bacilli of these, and perhaps terpreted. The scope of the amendment, other, deadly diseases to infancy, to adoles-in so far as it relates to the branch of the cence, and to age; to the delicate and to the subject now under discussion, has been briefrobust alike; and to persons in every class and condition of society. It may receive these germs direct from the cow, if the cow be unhealthy; or it may absorb them from

ly, but clearly, stated by the late Judge Cooley: "The guaranty of equal protection is not to be understood, however, as requiring that every person in the land shall possess

equal protection of the laws." The classifi cation may have reference to occupations Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780,-where it was held that a state statute limiting the period of employment of workmen in underground mines, or in the smelting, reduction, or refining of ores or metals, to eight hours per day, and making its violation a misdemeanor, was a valid exercise of the police power of the state). Or, again, the classification may relate to individuals. St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 41 L. ed. 611. But in every instance the classification, to be valid, must be based on reasonable grounds. It must not depend on distinctions which do not furnish any proper basis for the attempted classification. "That," as declared by the Supreme Court in Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis." In the case just cited a statute of Texas imposing an attorney's fee, in addition to costs, upon railway companies omitting to pay certain claims within a certain time, which applied to no other corporations or individuals, was declared unconstitutional, as denying to railway companies the equal protection of the laws. In the course of the court's opinion, Mr. Justice Brewer said: "It is, of course, proper that every debtor should pay his debts, and there might be no impropriety in giving to every successful suitor attorney's fees. Such a provision would bear a reasonable relation to the delin

the same rights and privileges as every other person. The amendment contemplates classes of persons, and the protection given by the law is to be deemed equal if all persons in the same class are treated alike under like circumstances and conditions, both as to privileges conferred and liabilities imposed. The classification must be based on reasonable grounds; it cannot be a mere arbitrary selection." Cooley, Const. Law, 249. This is abundantly supported by the adjudged cases. Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578; Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107; Walston v. Nevin, 128 U. S. 578, 32 L. ed. 544; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892; Pacific Exp. Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, 3 Inters. Com. Rep. 810; Giozza v. Tiernan, 148 U. S. 657, 37 L. ed. 599; Columbus Southern R. Co. v. Wright, 151 U. S. 470, 38 L. ed. 238; Marchant v. Pennsylvania R. Co. 153 U. S. 380, 38 L. ed. 751; St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 41 L. ed. 611. Thus, in Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578, it was held that a statute of a state, which provided that in capital cases, in cities having a population of over 100,000 inhabitants, the state shall be allowed fifteen peremptory challenges to jurors, while elsewhere in the same state the prosecution was only allowed eight such challenges, did not deny to a person tried for murder in a city containing over 100,000 inhabitants the equal protection of the laws enjoined by the 14th Amendment, and that there was no error in refusing to restrict the state's peremptory challenges to eight. And so in the very recent case of Central Loan & T. Co. v. Camp-quency of the debtor, and would certainly bell Commission Co. (decided by the Supreme Court on February 20, 1899) 173 U. S. 84, 43 L. ed. 623, it was held that a statute permitting an attachment against a nonresident debtor without a bond, while requiring a bond for an attachment against a resident debtor, does not constitute a denial to the nonresident of the equal protection of the law, because it was within the power of the legislature to divide debtors into two classes, nonresident and resident.-and, when so classified, to prescribe different methods of proceeding against them. The classification which the legislature is authorized to make may relate to territorial divisions of a state. Thus, in Missouri v. Lewis, 101 U. S. 22, 25 L. ed. 989, it was said by Mr. Justice Bradley: "We might go still further, and say with undoubted truth that there is nothing in the Constitution to prevent any state from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the state of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the state, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the 14th Amendment, be a denial to any person of the

create no inequality of right or protection. But before a distinction can be made between debtors, and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference in the obligation to pay, some reason why the duty of payment is more imperative in the one instance than in the other." "It is," said the same court in a very recent case. "the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public.

Indeed, the very idea of classification is that of inequality, so that it goes without saying that the fact of inequality in no manner determines the matter of constitutionality.

While cases on either side, and far away from the dividing line, are easy of disposition, the difficulty arises as the statute in question comes near the line of separation." Atchison, T. & S. F. R. Co. v. Matthews (decided April 17, 1899) 174 U. S. 96, 43 L. ed. 909. Special burdens are often necessary for general benefits, particularly in respect to the preservation of the public health. "Reg ulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good.

Though in many respects necessarily spe- was to guard against impurities in milk furcial in their character, they do not furnish nished to residents in populous settlements just ground of complaint if they operate alike by requiring persons who supply milk to upon all persons and property under the cities, towns, and villages to keep their cows same circumstances and conditions." Bar- and premises in a sanitary condition. The bier v. Connolly, 113 U. S. 31, 28 L. ed. 924. danger arising from the nonobservance of the If the legislature of Maryland has, by the sanitary rules prescribed by the act is instatute under consideration, made a class to creased in proportion to the increased numwhich the provisions of the act were designed ber of the consumers of milk; and a contato apply, and if that classification is just and gious disease introduced by contaminated reasonable, and not purely arbitrary, the rul- milk in a thickly settled locality is vastly ing on the demurrer was wrong. The ulti-more serious, because vastly further reachmate object of the statute was, as we haveing, than it can possibly be when communiseen, to protect the health of persons living cated, by the same means, to an isolated indiin cities, towns, and villages from the dis-vidual. The duty to avoid the introduction eases to which impure or contaminated milk of disease in both cases is unquestionably might expose them. There is a definite and incumbent on the vendor of milk, but there well-ascertained class of persons described in is every reason why a breach of that duty the statute, and that class comprises dairy- will be far more injurious in the one than men, herdsmen, and other individuals who in the other instance. Though the statute supply milk to cities, towns, and villages. furnishes no protection to persons not living It was not the purpose of the act to include in cities, towns, or villages, this in no way within its purview all persons who sell milk, indicates that its classification is unreasonbut it put into a class all dairymen, herds-able, or that it deprives anyone of the equal men, and individuals who supply milk to protection of the laws in the sense that would cities, towns, and villages,-those who are annul it. Hayes v. Missouri, 120 U. S. 68, engaged in the business of selling milk in 30 L. ed. 578. It was designed, like many populous communities. These persons are other health laws, to operate in a restricted singled out from all others who may own territory. There are numerous health laws cows, or who may occasionally sell milk in which do not operate on persons living bethe country to some individual, and are yond the limits within which they are apgrouped into a class, because they are the plicable; but it by no means follows that persons whose carelessness, whose inattention they are void merely because they were not to their herds, or whose uncleanly surround-made to cover a wider range of country, beings may originate or promote the spread of cause a classification may be made with refdisease in populous localities. No dairy-erence to the subdivisions of a state. Misman, herdsman, or individual who supplies souri v. Lewis, 101 U. S. 22, 25 L. ed. 989. milk to cities, towns, or villages is exempted It would not have been practicable to have from the operation of the law, but all who made the statute broad enough to include are thus engaged are specifically included. every vendor of milk, whether he sold to There is no uncertainty as to the persons cities, towns, and villages, or only to a sincomposing the class, and no dispute that the gle individual; nor was it necessary, in order general assembly intended to make exactly to reach the evil aimed at, that this should that classification. have been done. Laws relating to the inIs the classification just and reasonable, spection of milk do not operate outside of and free from the imputation of being mere- the large cities, and yet it has never been held ly arbitrary? The act in respect to which that they are invalid on that account. the classification is proposed is the act of act creates a reasonable class, and bears upon Supplying milk to cities, towns, and villages all in that class alike; and it cannot be asby dairymen, herdsmen, and other individ sailed because it may not, perhaps, be efficauals. It is founded on the right of the state cious enough to wholly eradicate the evil it in the exercise of its police power to classify was framed to extirpate. Such a test of its Occupations with relation to their peculiar constitutionality would make the validity of liability to cause injury to the inhabitants of a measure depend upon the universality of its the designated places from the article of food application, and not upon the fact that the employed in the business. It is identical in classification was just and reasonable, and principle with the classification under a Utah was made with reference to some difference statute by which a conclusive presumption of which bore a proper relation to the act in renegligence was made to apply to persons driv-spect to which the classification was proing a herd of cattle over a public highway, while the same presumption did not apply to a person driving less than a herd. Jones v. Brim, 165 U. S. 180, 41 L. ed. 677. There is an obvious difference between the occasional sale of milk to an isolated individual and the habitual sale of it to the inhabitants of a city, a town, or a village; and this difference is manifestly sufficient to "furnish a reasonable basis for separate laws and regulations." State v. Loomis, 115 Mo. 307. 21 L. R. A. 789. The clear purpose of the legislature

posed.

ure,

The

The 20th section of the act does, in a measinterfere with property rights, but not to such an extent or in such a way as to impair the validity of the enactment. While it is undoubtedly true that the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may most certainly be resorted to for the purpose of preserving the public health, safety, or morals, or the abatement of public nuisances; and a large discretion "is necessarily vested

|

Co. v. Hyde Park, 97 U. S. 659,24 L. ed. 1036;
Parker & W., Public Health, § 251.

new trial.

Judgment reversed, and new trial awarded; costs above and below to be paid by the appellee.

1.

2.

J. E. HELLER et al., Appte

บ.

NATIONAL MARINE BANK et al.

The preferred stock authorized by Code, art. 23, § 294, differs radically from ordinary preferred stock in that it is expressly constituted "a lien on the franchises and property" of the corporation, with priority over subsequent mortgages or other encumbrances.

in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of For the reasons we have given we are persuch interests." Lawton v. Steele, 152 U. S. fectly satisfied the act of 1898 is a valid ex133, 38 L. ed. 385. As observed by Chief ercise of the police power, and that it is Justice Shaw in Com. v. Alger, 7 Cush, 84: entirely free from constitutional objections. "Every holder of property, however absolute There was, consequently, error in the ruling and unqualified may be his title, holds it un- which sustained the demurrer. The judg der the implied liability that his use of it ment appealed from will accordingly be remay be so regulated that it shall not be in-versed, and the case will be remanded for a jurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. .. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient." "This power, legitimately exercised, can neither be limited by contract nor bartered away by legislation." Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780. The requirements of the 20th section of the act of 1898 are simply such regulations as the general assembly had, in the exercise of the police power, the undoubted authority to prescribe. A dairyman has no right to sell milk that may be contaminated, or that may be given by diseased cows, or may be kept on uncleanly premises, or in unsterilized utensils; and if he undertakes to sell milk at all to cities, towns, and vil-4. lages, he must submit to such reasonable sanitary regulations respecting his property used in that business as the legislature may deem necessary to prevent that property from being the source or origin of infectious and contagious diseases. No matter how absolute his title he holds his property subject to this liability: that his use of it may be so regulated as that it shall not be injurious to the community. The statute does not deprive him of his property, but it does impose upon him the duty of so using it, when employed in that business, that no injury shall result to others most likely to be affected by a disregard on his part of the reasonable health regulations which it enacts. Almost every police regulation affects, to a greater or less extent, some property right; but there is no such invasion of a property right by this act as other valid statutes have permitted. For example, in the Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394, a law of

the state of Louisiana, vesting in a slaughterhouse company the sole and exclusive priv: ilege of conducting a live-stock landing and slaughter-house business, and requiring that all animals should be landed at the stock landings and slaughtered at the slaughterhouses owned by the company, and nowhere else, was upheld as a valid exercise of police power, though it rendered practically valueless other property that had previously been used by its owners for slaughterhouses. See, too, Northwestern Fertilizing

3.

5.

6.

7.

That which is essentially in accord with the statutes does not contravene public policy.

The priority over “any subsequent lien, mortgage, or other encumbrance" given to preferred shareholders by Code, art. 23. § 294, extends to unsecured claims over which subsequent mortgages would have preference.

A meeting of the stockholders, called for the issue of preferred stock, is properly called under the provisions of Code, art. 23, § 76, providing for meetings to increase or diminish the capital stock to be called by directors on four weeks' published notice, and is not within § 6 of the same article, which ap plies to meetings generally.

Insurance collected by receivers for buildings, machinery, and stock in trade that were burned is not subject to the lien of preferred shareholders given by statute on the franchises and property of the company.

Articles produced by a corporation for sale are not subject to the lien on the franchises and property of the company given by Code, art. 23, § 294, to holders of preferred stock.

Rents collected by receivers of a corporation are not included in a lien given to preferred shareholders on the company's franchises and property.

(June 22, 1899.)

APPEAL by intervening claimants from a City distributing the assets of the Chesapeake Guano Company of Baltimore City, to Dorsey Grafflin, to the holders of preferred wind up which a bill had been filed by F. stock in preference to the claims of creditors of the corporation. Affirmed in part; reversed in part.

decree of the Circuit Court of Baltimore

terest-bearing stock in general, see note to Field NOTE. As to preferred, guaranteed, and Inv. Lamson & G. Mfg. Co. (Mass.) 27 L. R. A. 136.

A preferred stockholder is not a creditor, but a stockholder. The stockholder, and even the preferred stockholder, is, so to speak, a partner in the business of the corporation, and "his chance of gain, by the operations 1 Cook, Stock & Stockholders & Corp. Law, of the corporation, throws on him, as respect § 271; St. John v. Erie R. Co. 22 Wall. 147, creditors, the entire risk of the loss of his 22 L. ed. 746; Hamlin v. Continental Trust share of the capital, which must go to satis- Co. 47 U. S. App. 422; Hamlin v. Toledo, St. fy the creditors in case of misfortune. He L. & K. C. R. Co. 78 Fed. Rep. 671, 24 C. C. cannot be both creditor and debtor, by vir- A. 271, 36 L. R. A. 826; 2 Beach, Priv. Corp. tue of his ownership of stock." § 502; Lockhart v. Van Alstyne, 31 Mich. 76, 18 Am. Rep. 156.