On the part of the defense the witnesses testify that the dredges were not thus cast and used upon the lands in question. There was no pretense in the charge, in the indictment, or in the testimony offered by the people, that a conviction could be had for the mere taking of a dredge over the leased lands. The conviction depended, both in the charge and in the testimony, upon establishing the fact that the plaintiffs in error thus illegally used the dredges.

It is contended that the plaintiffs in error might have been convicted for the mere sailing over the lands with a dredge aboard the boat, because of the following language in the court's charge:

"It then remains to be considered whether or not the defendants on that day dredged or threw, took or cast a dredge or other instrument used for the purpose of catching oysters upon that ground. If you find that they did, then they should be convicted of illegal dredging, as charged in the first count of the indictment."

But this excerpt must be read in connection with the rest of the charge, and it is perfectly apparent that it was not intended that the jury might convict for taking a dredge across the lands in sailing over them, under an indictment which made no mention of such taking, but distinctly counted upon the unlawful throwing and casting of the dredge upon the leased ground for the purpose of catching oysters. For immediately following the language quoted the learned judge goes on to say:

"Now, the State produces, bearing upon that question, the owner of the ground, and he testifies that on the day named in the indictment he, aboard of the Golden Light with Captain Hilton, visited his ground; that as they approached it—you will recall just how near they placed themselves, from their testimony-as they approached it they saw these defendants aboard of a vessel called the Lee maneuvering up and down this ground, No. 137, section B, of Captain Allen, and heaving their dredges thereon. Now, gentlemen, if you believe that

testimony, if you believe that occurred as these witnesses for the State say it occurred, then, regardless of whether or not they got any oysters, if they were throwing their dredges there upon that ground they should be convicted under the first count of this indictment.

"Now, considering all of this testimony and any other testimory in the case, you ought to determine whether or not the defendants were there heaving their dredges and dredging upon this ground. And in endeavoring to ascertain the truth from this conflicting testimony it is but the dictate of common sense that you should consider whether any of the witnesses have a motive to testify falsely."

It is, therefore, apparent that the possible construction of the statute in such manner as to convict plaintiffs in error of a crime in merely exercising their right to navigate interstate waters was not made essential to the determination of the case.

A conviction was had because of the use of a dredge upon leased lands, in violation of the New Jersey statute for the protection of the oyster industry. Against the statute, as thus enforced, no valid objection can be urged for want of power to pass or enforce it because of rights protected by the Federal Constitution.

is

Judgment of the Court of Errors and Appeals of New Jersey

Affirmed.

207 U. 8.

Argument for Plaintiff in Error.

SEABOARD AIR LINE RAILWAY v. SEEGERS.

ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH

CAROLINA.

No. 15. Argued October 16, 1907.-Decided November 4, 1907.

Where a state statute applies to both intrastate and interstate shipments, but the shipment involved is wholly intrastate, this court will not consider the validity of the statute when applied to interstate' shipments. A state statute may, without violating the equal protection clause of the Fourteenth Amendment, put into one class all engaged in business of a special and public character, and require them to perform a duty which they can do better and more quickly than others and impose a not exorbitant penalty for the non-performance thereof.

The statute of South Carolina of 1903 imposing a penalty of fifty dollars on all common carriers for failure to adjust damage claims within forty days is not, as to intrastate shipments, unconstitutional as violative of the Fourteenth Amendment, neither the classification, the amount of the penalty nor the time of adjustment being beyond the power of the State to determine. And so held in regard to a claim of $1.75, as small shipments are the ones which especially need the protection of penal statutes of this nature. 73 S. Car. 71, affirmed.

THE facts, which involve the constitutionality of a statute of South Carolina providing for penalty on common carriers for not promptly adjusting damage claims, are stated in the opinion.

Mr. W. F. Stevenson, with whom Mr. Edward Mclver was on the brief, for plaintiff in error:

This statute discriminates against carriers as between them and other debtors of the same class. It is an attempt to make a common carrier pay one class of debts growing out of transportation under penalties and forfeitures that are not inflicted on other people, even other debts growing out of the same relation. The title of the act shows-its partisan character and that it was leveled at one party to the contract of transportation

Argument for Plaintiff in Error.

207 U.S.

No other individual or corporation is thus punished. It is an arbitrary classification and discrimination against common carriers. The courts are not open to them as to other litigants to adjudicate such claims, but this law says to them "if you lose your case, you will be subject to a heavy penalty (in this case nearly thirty times as large as the claim in controversy), if your adversary loses his case he has no penalty to pay." This is unjust discrimination. Corporations are the same as persons within the provisions both of the state and the United States constitutions, and a State has no more power to deny to corporations the equal protection of the law than it has to individual citizens.

The legislature has the power to classify persons or corporations, yet it is equally true that such classification cannot be made arbitrarily. Classification for legislative purposes must have some reasonable basis upon which to stand, and must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed. Porter v. Ry., 63 S. Car. 180; G. C. & S. F. Ry. v. Ellis, 165 U. S. 150.

Clear and hostile discrimination against particular persons and classes cannot be made. Bells Gap R. R. v. Pa., 141 U. S. 232.

Here is a clear, and perhaps hostile, discrimination against common carriers, requiring them to pay their debts within a given time, or suffer a heavy penalty, imposed on no one else, even though the conditions be identical.

Similar statutes in other States have been held unconstitutional. Railroad Co. v. Morris, 65 Alabama, 193; Railroad Co. v. Moss, 60 Mississippi, 641; Wilder v. Railroad Co., 70 Michigan, 382; Railroad Co. v. Williams, 49 Arkansas, 492; Railroad Co. v. Baty, 6 Nebraska, 37; Frorer v. People, 141 Illinois, 171; Braceville Coal Co. v. People, 147 Illinois, 66.

By the statute in question carriers are denied access to the courts on equal terms with other litigants.

The State has no right to say, as it does by this statute, that two parties can enter into a contract and if one party fails to

carry out his part he can refuse to pay and stand a suit, and, if he loses, he shall not be liable for any penalty except for costs, but if the other party fail and appeal to the court and lose he shall be liable to a penalty in favor of his co-contractor. Such a statute denies equality before the courts, and courts exist to afford the protection of the laws, and therefore denial of equality before the courts is a denial of the equal protection of the laws. Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Davidson v. Jennings, 48 L. R. A. 340, and cases there cited; C., S. L. & N. O. Ry. Co. v. Moss, 60 Mississippi, 641; Wilder v. Chicago & W. M. R. Co., 70 Michigan, 382, 38 N. W. Rep. 289; Randolph v. Builders' Supply Co., 106 Alabama, 501, 17 So. Rep. 721.

The cases cited by the Supreme Court of South Carolina do not sustain its position herein. A. T. & S. F. Ry. v. Matthews, 174 U. S. 96; Erb, Rec'r, v. Monarch, 177 U. S. 584, and Fidelity Mut. Life Asso. v. Mettler, 185 U. S. 308, distinguished.

No counsel appeared for defendants in error.

MR. JUSTICE BREWER delivered the opinion of the court.

The question in this case is the constitutionality of section 2 of an act of the State of South Carolina, approved February 23, 1903 (24 Stat. 81), which reads:

"SEC. 2. That every claim for loss of or damage to property while in the possession of such common carrier shall be adjusted. and paid within forty days, in case of shipments wholly within this State, and within ninety days, in case of shipments from without this State, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: Provided, That no such claim shall be filed until after the arrival of the shipment or of some part thereof at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thercon from the date of the filing of the claim therefor