special attention were excessive. Dr. D. A. J. Bell, for the plaintiff, testified in substance that he had himself attended Mrs. McDaniel in March and April, 1901, and from his knowledge of her condition he regarded the account as excessive as to the items of extra attention, "unless he is a professional nurse as well as a doctor, and has time to nurse as well as prescribe for his patients." He stated that Mrs. McDaniel's case was not plain case of kidney disease, but it was not an extraordinary case demanding the constant attention of a physician. He further stated that he did not know what the extra attention was, that in an extraordinary case a doctor may act to some extent as a professional nurse, and would have the right to charge when detained beyond the ordinary time by the patient in extraordinary cases.

On the other hand, in behalf of defendant, Dr. Thomas Jennings testified that he lived within two hundred yards of Mrs. McDaniel; that he attended on her first, then Dr. G. A. Burch, then Dr. Bell, and then Dr. J. J. Burch; that from his knowledge of Mrs. McDaniel's case her condition was such at times as to require this extra attention, and that the charge was not excessive. Dr. F. W. P. Butler testified that the account appeared to be an unusual one, but may be correct and all right, and that it was probable that the services rendered as stated in the account were necessary. Dr. J. H. Carmichael testified that he did not consider the items for special attention an overcharge or unreasonable according to the fee bill. Dr. J. G. Tompkins, sworn for the plaintiff in reply, testified that the extra charges per hour are legal and in accordance with the fee bill of the Edgefield Medical Association, but the frequency of them is very unusual, and that in his practice when the case demands constant attention he advocates the employment of a trained nurse as less expensive to the patient.

14 It seems to us that a fair inference from the testimony submitted is that the services charged for were rendered at the request and for the benefit of Mrs. McDaniel, and that while the account may seem large and unusual in the matter of special attention, still the charges for services admittedly rendered were not excessive and were in accordance with the medical fee bill prevailing in that community. In view of this it cannot be affirmed with certainty that if the executor had contested the account these items would have been disallowed by the court, and that the judgment rendered

thereon was the result of the executor's negligence and not the result of Dr. Burch's rights in the premises.

The only negligence imputed to the executor is the failure to answer the complaint on the account within the time required by law. It appears that the complaint was served on the executor July 11, 1903; that he employed counsel to defend the suit on August 5, 1903; that his counsel appeared in court on August 6th and opposed the granting of judgment by default, but, as no answer had been served in the time required, the court gave judgment by default on August 7th. Then the executor made a motion before Judge Jos. A. McCullough at the ensuing term of court to open the judgment by default on the ground of his excusable neglect, upon his affidavit stating that he resided twenty miles from Edgefield Courthouse, and that at the time of the service of the summons and complaint, and for some time thereafter, he was in a critical condition, due to a stab received in April before, and was unable to attend to business; that when he was able to notice the papers, although still unwell, he carried them to his attorney on August 5th. This motion was denied by Judge McCullough, who took the view under the affidavits presented that the failure to answer was not due to excusable neglect, because, conceding that the executor was not able to go to Edgefield in person, he had mind enough to appreciate the importance of the case, and could easily have communicated with his attorney by message or mail in time to answer within twenty days or secure the necessary time to

answer.

15

There was no appeal from Judge McCullough's order, and it is in no wise under review now, and we are bound to assume that it was a proper exercise of discretion under section 195, regulating the practice of relieving a party from a judgment taken against him through excusable neglect, etc. But the question before us is not one under section 195, but one addressed to the conscience of a court of equity, whether the negligence of the executor was such as resulted in the judgment rendered, and whether the circumstances are such as should deprive him of credit for a payment he was compelled to make. We are of the opinion that the credit claimed by the executor should have been allowed.

The decree of the circuit court is reversed, and it is further ordered and adjudged that the defendant executor in his accounting be allowed credit for the sum paid in settle

ment of the judgment in the case of J. J. Burch v. Winchester McDaniel, as executor.

Executors and Administrators are required to exercise only ordinary care and reasonable diligence in managing the estate they represent: Moore v. Eure, 10 N. C. 11, 9 Am. St. Rep. 17. They are not bound to exercise any higher responsibility than that which is imposed upon any other agent or trustee: Estate of Kohler, 15 Wash. 613, 55 Am. St. Rep. 904. They are required only to pursue such course in the management of the intestate's assets as a judicious man, looking alone to his own interests, would, under the circumstances, pursue in his own affairs: Harris v. Orr, 46 W. Va. 261, 76 Am. St. Rep. 815; note to Tarver v. Terrance, 12 Am. St. Rep. 311.

CITY OF LAURENS v. ANDERSON.

[75 S. C. 62, 55 S. E. 136.]

CONSTITUTIONAL LAW-Exemption from License Tax.-A statute exempting all soldiers and sailors of the Confederate states who enlisted from a certain state and who were honorably discharged from paying a license for carrying on any business or profession in any city, town, or village within the state is unconstitutional as unwarranted class legislation, and as not affording to every person the equal protection of the laws. (p. 886.)

Ferguson & Featherstone, for the appellant.

Dial & Todd, for the appellee.

62 GARY, J. The exceptions assign error on the part of his honor, the presiding judge, in declaring the following statute unconstitutional, to wit:

"Be it enacted by the General Assembly of the State of South Carolina, That all soldiers and sailors of the Confederate States, who enlisted from this state, and who were honorably discharged from such service, shall hereafter be exempt from any license for the carrying on of any business. or profession within this state, or any city, town or village 63 therein: Provided, That such soldiers and sailors shall file with the clerk of the court of the county in which he resides, the proper evidence of his service in the Confederate War: Provided, further, That no partnership shall exist in any such business or profession with any person not a bona fide soldier or sailor of the said Confederate States": 21 Stat. 441.

The defendant was tried in the mayor's court upon the charge of running a beef market and grocery store without license. He pleaded that he was exempt from the payment of a license tax under the provisions of said act. The mayor ruled that the statute was unconstitutional, and imposed a sentence upon the defendant, from which he appealed to the circuit court.

The respondent contended that the statute was in violation of the following constitutional provisions:

Article 1, section 5, of the constitution of this state, which provides that no person shall be denied the equal protection of the laws.

Section 1 of the fourteenth amendment of the United States constitution, which prohibits any state from denying to any person the equal protection of the laws.

Article 10, section 1 of the constitution of South Carolina, which contains the provisions that "the General Assembly shall provide by law for a uniform assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property. . . . Provided, That the General Assembly may provide. ... for a graduated license on occupations and business."

Article 4, section 2 of the United States constitution, which is as follows: "The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.”

The presiding judge ruled that the act was in violation of the first and second, but not of the third and fourth, of said provisions.

The respondent gave notice that in case it was necessary, it would rely upon the additional grounds that there was 64 error in overruling the third and fourth of said objections.

We will proceed, first, to state the general principles touching the subject of classification under the state and federal constitutions.

The case of Gulf etc. Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255, 41 L. ed. 666, decides that the classification must not be arbitrary-that is, "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed"; also, that such classification must be "based upon some reasonable ground, some difference which bears a just and proper relation to the attempted classification, and is not a merely arbitrary selection."

In American Sug. Ref. Co. v. Louisiana, 179 U. S. 89, 21 Sup. Ct. Rep. 43, 45 L. ed. 102, the court, in discussing the provisions of the constitution as to the equal protection of the laws, says: "The power of taxation under this provision was fully considered in Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. Rep. 533, 33 L. ed. 892, in which it was said not to have been intended to prevent a state from changing its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property altogether; may impose different specific taxes upon different trades or professions; may vary the rates of excise upon various products; may tax real and personal estate in a different manner; may tax visible property only and not securities; may allow or not allow deductions for indebtedness. 'All such regulations and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature or the people of the state in framing their constitution.'

The court, in Sutton v. State, 96 Tenn. 696, 36 S. W. 697, 33 L. R. A. 589, says that legislation, to be constitutional, "must possess each of two indispensable qualities: First, it must be so framed as to extend to and embrace equally all persons who are or may be in the like situation and circumstances; and, secondly, the classification must be natural and reasonable, not arbitrary and capricious.'

65

In Cooley's Constitutional Limitations, 482, we find the following statement of the principle: "Privileges may be granted to particular individuals, when by so doing the rights of others are not interfered with; . . . . but every one has a right to demand that he be governed by general rules, and a special statute which without his consent singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not in the province of free government. Those who make the laws are to be governed by promulgated, established laws, not to be varied in particular cases, but to have one rule for the rich and poor, for the favorite at court and the countryman at the plough.'

The court, in State v. Goodwill, 33 W. Va. 179, 25 Am. St. Rep. 863, 10 S. E. 285, 6 L. R. A. 621, uses this language: "The rights of every individual must stand or fall by the same rule of law that governs every other member of the