would not be inferred that two or three bar-law results from a provision of a state statrels of Venetian red broke open, scattering ute which makes it a misdemeanor for any the powder over merchandise, from not be- person to act as a conductor on a railway ing properly stowed, where the evidence train in that state without having previousshowed the most stormy passage in fifteen ly served for two years as a freight conyears. The Fern Holme, 24 Fed. 502. ductor or brakeman. Presumption of negligence on the part of the carrier was held not to apply to a mule having pneumonia. St. Louis & S. F. R. Co. v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131. As to burden of proof of cause of injury to live stock during transportation, see Terre Haute & I. R. Co. v. Sherwood, 17 L.R.A. 339, note. See "Burden of proof as to negligence where property is destroyed while in the possession of a carrier holding as warehouseman." Yazoo & M. Valley R. Co. v. Hughes, 22 L.R.A.(N.S.) 975, note. As to presumption and burden of proof where loss or damage occurred, in actions against connecting carriers, see Atlantic Coast Line R. Co. v. Riverside Mills, 31 L.R.A.(N.S.) 102, note. Liability of carrier of property for loss occurring on connecting line, but due to its own negligence, see Whitnack v. Chicago, B. & Q. R. Co. 19 L.R.A. (N.S.) 1011, note. Cases in regard to negligence of warehousemen, and cases depending on connecting carriers' liability, are not intended to be included in this note. I. T. (Mr. Justice Holmes dissents.) (May 11, 1914.) Texas to review a judgment which ORROR to the Court of Criminal Appeals affirmed a judgment of the County Court of Gregg County convicting defendant of having acted as conductor of a freight train without previous experience as freight conductor or brakeman. Reversed. The facts are stated in the opinion. Messrs. Gardiner Lathrop and Robert Dunlap, for plaintiff in error: trarily restricting the right to engage in a The statute, by unreasonably and arbilawful occupation to a favored class, thereby depriving others who are as well fitted to engage therein, and depriving them of all opportunity to show their fitness, is arbitrary and capricious upon its face, and is obviously not passed for the sole purpose of protecting the community against the results of inexperience, but tends to give a monopoly in a particular employment to a favored class. It deprives those UNITED STATES SUPREME COURT. who do not fall within the favored class of W. W. SMITH, Plff. in Err., V. STATE OF TEXAS. their liberty or freedom without due process of law, and denies to them the equal protection of the laws of the state. Yick Wo v. Hopkins, 118 U. S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. Rep. 1064; (233 U. S. 630, 58 L. ed. 1129, 34 Sup. Ct. Barbier v. Connolly, 113 U. S. 31, 28 L. Rep. 681.) As to constitutionality and effect of restrictions on right to practise trade of barber, see note to Moler v. Whisman, 40 L.R.A. (N.S.) 629. As to constitutionality of restriction on business of undertaking, see note to Wyeth v. Thomas, 23 L.R.A. (N.S.) 147; and later cases People v. Ringe, 27 L.R.A. (N.S.) 528, and State v. Rice, 36 L.R.A. (N.S.) 344. The decision in SMITH V. TEXAS, in the light of the principles upon which it rests, would seem to preclude legislation which arbitrarily restrains a person in one branch or grade of railroad service from engaging in another branch or grade for which his actual experience fully qualifies him. The case holds that personal qualification, irre ed. 924, 5 Sup. Ct. Rep. 357; Connolly v. Union Sewer Pipe Co. 184 U. S. 559, 46 L. ed. 689, 22 Sup. Ct. Rep. 431; Lochner v. New York, 198 U. S. 53, 49 L. ed. 940, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Adair v. United States, 208 U. S. 173, 174, 52 spective of arbitrary distinction between branches and grades of service, is the proper standard by which one's fitness to occupy a certain position is to be judged. The court below, which is reversed in the principal case, arrived at the opposite conclusion (— Tex. Crim. Rep. 146 S. W. 900), admitting that the statute prevented persons from acting as conductors who were as fully qualified as those who were permitted to engage in that occupation, but holding that it was within the power of the legislature to make such a statute. And a position similar to that of SMITH v. TEXAS is taken in Cleveland, C. C. & St. L. R. Co. v. State, 26 Ohio C. C. 348, affirmed in 70 Ohio St. 506, 72 N. E. 1165, which holds unconstitutional a statute making it unlawful "to employ any person in the capacity of a conductor of a passenger train or trains unless he has had at least L. ed. 443, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; Dent v. West Virginia, 129 U. S. 114, 124, 125, 32 L. ed. 623, 626, 627, 9 Sup. Ct. Rep. 231; Reetz v. Michigan, 188 U. S. 508, 509, 47 L. ed. 566, 567, 23 Sup. Ct. Rep. 390; Cooley, Const. Lim. 7th ed. pp. 889, 890; State ex rel. Powell v. State Medical Examining Board, 32 Minn. 324. 50 Am. Rep. 575, 20 N. W. 238; Gage v. New Hampshire Electric Medical Soc. 63 N. H. 92, 56 Am. Rep. 492; Bank of Columbia v. Okely, 4 Wheat. 244, 4 L. ed. 561; The Federalist, No. 51; Marbury v. Madison, 1 Cranch, 176, 2 L. ed. 73; Wyeth v. Board of Health (Wyeth v. Thomas) 200 Mass. 474, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 925; Josma v. Western Steel Car & Foundry Co. 249 Ill. 508, 94 N. E. 945; Bonnett v. Vallier, 136 Wis. 193, 17 L.R.A. (N.S.) 486, 128 Am. St. Rep. 1061, 116 N. W. 885; Chenoweth v. State Bd. of Medical Examiners, Colo. 51 L.R.A. (N.S.) 958, 141 Pac. 132; Ruhstrat v. People, 185 Ill. 133, 49 L.R.A. 181, 76 Am. St. Rep. 30, 57 N. E. 41, 12 Am. Crim. Rep. 453; People v. Schenck, 257 Ill. 384, 44 L.R.A. (N.S.) 46, 100 N. E. 994, Ann. Cas. 1914A, 1129; Opinion of Justices, 211 Mass. 618, 98 N. E. 337; Morgan v. State, 179 Ind. 300, 101 N. E. 7; State v. Wagener, 69 Minn. 206, 38 L.R.A. 677, 65 Am. St. Rep. 565, 72 N. W. 67; Com. v. Snyder, 182 Pa. 630, 38 Atl. 356; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 58 L.R.A. 748, 91 Am. St. Rep. 934, 90 N. W. 1098; People v. Hawkins, 157 N. Y. 7, 42 L.R.A. 490, 68 Am. St. Rep. 736, 51 N. E. 257; Vicksburg v. Mullane, - Miss. 50 L.R.A. (N.S.) 421, 63 So. 412; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Connolly v. Union Sewer Pipe Co. 184 U. S. 549, 46 L. ed. 685, 22 Sup. Ct. Rep. 431; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30; Smith v. Board of Examiners of Feeble Minded, 85 N. J. L. 46, 88 Atl. 963; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Lawton v. Steele, 152 U. S. 137, 38 L. ed. 388, 14 Sup. Ct. Rep. 499; Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 761, 28 L. ed. 588, 4 Sup. Ct. Rep. 652. Messrs. B. F. Looney, Attorney General of Texas, and Luther Nickels, for defendant in error: two years' experience in the position of con-, ductor." The court says: "The act prescribes no standard and no test of efficiency; arbitrarily says who may labor at a given employment, and who may not, and fails to provide for the safety of the public, which must have been the purpose of any lawful exercise of the police power of the state." A statute requiring all flagmen on passenger, mail, or express trains to have at least one year's experience as brakemen was, however, held to be within the police power of the state, in Simpson v. Geary, 204 Fed. 507. The court assigns the following reason: "The right to contract for and retain employment in a given occupation or calling is not a right secured by the Constitution of the United States, nor by any Constitution. It is primarily a natural right, and it is only when a state law regu The state may rightfully prevent unqualified men from occupying the position of conductor of a passenger train; and in doing so the state does not: I. Unconstitutionally interfere with the right of contract, because: The state has the power to prevent individuals from making certain kinds of contracts in regard to which the Federal Constitution offers no protection, Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Olsen v. Smith, 195 U. S. 332, 49 L. ed. 224, 25 Sup. Ct. Rep. 52; Otis v. Parker, 187 U. S. 606, 47 L. ed. 323, 23 Sup. Ct. Rep. 168; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Northern Securities Co. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436; St. Louis, I. M. & S. R. Co. v. Paul, 173 U. S. 404, 43 L. ed. 746, 19 Sup. Ct. Rep. 419; Knoxville Iron Co. v. Harbison, 183 U. S. 13, 46 L. ed. 55, 22 Sup. Ct. Rep. 1; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427. V. II. Or unconstitutionally interfere with the right to pursue a lawful occupation, for: lating such employment discriminates arbitrarily against the equal right of some class of citizens of the United States, or some class of persons within its jurisdiction, as, for example, on acount of race or color, that the civil rights of such persons are invaded, and the protection of the Federal Constitution can be invoked to protect the individual in his employment or calling. The complainants' case is not within this protection. They have not been deprived of any of the equal rights of citizens or persons. The state law applies to all persons alike, without discrimination, whether citizens of the United States or persons within its jurisdiction, and it is plainly a regulation enacted under the police power of the state, having for its purpose the safety of passengers on the railways operating within the state." E. L. D. Unless regulations respecting the pursuit of a lawful trade or business 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. A man has no right to engage in or pur- Missouri, K. & T. R. Co. v. May, 194 sue any calling, the proper prosecution of U. S. 267, 48 L. ed. 971, 24 Sup. Ct. Rep. which requires a certain amount of tech- 638. nical knowledge or professional skill, the lack of which may result in material injury to the public or individuals, which can be controlled in all cases, or, in proper cases, to be taken away by state legislation. Lochner v. New York, 198 U. S. 53, 49 L. ed. 940, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Olsen v. Smith, Tex. Civ. App. 68 S. W. 320, 195 U. S. 332, 49 L. ed. 224, 25 Sup. Ct. Rep. 52; 1 Tiedeman, State & Federal Control of Persons & Property, p. 242. The legislature, having the power to prevent unqualified men from pursuing the occupation of conductors, had also the power to classify and the power to prescribe the one qualification of prior service. Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Dent v. West Virginia, 129 U. S. 122, 123, 32 L. ed. 626, 9 Sup. Ct. Rep. 231; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Jones v. Brim, 165 U. S. 180, 183, 41 L. ed. 677, 678, 17 Sup. Ct. Rep. 282, 1 Am. Neg. Rep. 547; Hawker v. New York, 170 U. S. 191, 193, 197, 198, 42 L. ed. 1004, 1006, 1007, 18 Sup. Ct. Rep. 573; Re CountySeat of Linn County, 15 Kan. 528; Ex parte Garland, 4 Wall. 333, 379, 18 L. ed. 366, 370; Re Admission to the Bar, 61 Neb. 58, 84 N. W. 611; Wilson's Application, 9 Pa. Dist. R. 102; Re Dunn, 43 N. J. L. 359, 39 Am. Rep. 600; A. B.'s Application, 4 Johns. 191; Anonymous, 3 Wend. 456; Ex parte Sayre, 7 Cow. 368; Com. ex rel. Brackenridge v. Cumberland County, 1 Serg. & R. 187; Re Admission to Practice, 14 S. D. 429, 85 N. W. 992; Re Lockwood, 154 U. S. 116, 38 L. ed. 929, 14 Sup. Ct. Rep. 1082; Williams v. People, 121 Ill. 84, 11 N. E. 881; State v. Creditor, 44 Kan. 565, 21 Am. St. Rep. 306, 24 Pac. 346; State v. Vandersluis, 42 Minn. 129, 6 L.R.A. 119, 43 N. W. 789; Bradwell v. Illinois, 16 Wall. 130, 21 L. ed. 442. When a state legislature has declared that, in its opinion, public policy requires a certain measure, its action should not be disturbed under the 14th Amendment un less the court can clearly see that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched. Gundling v. Chicago, 177 U. S. 183, 188, 44 L. ed. 725, 728, 20 Sup. Ct. Rep. 633. Mr. Justice Lamar delivered the opinion of the court: W. W. Smith, the plaintiff in error, a man forty-seven years of age, had spent twenty-one years in the railroad business. He had never been a brakeman or a conductor, but for six years he served as fireman, for three years ran as extra engineer on a freight train, for eight years was engineer on a mixed train, hauling freight and passengers, and for four years had been engineer on a passenger train of the Texas & Gulf Railway. On July 22, 1910, he acted as conductor of a freight train running between two Texas towns on that road. There is no claim in the brief for the state that he was not competent to perform the duties of that position. On the contrary, it affirmatively and without contradiction appeared that the plaintiff in error, like other locomotive engineers, was familiar with the duties of that position, and was competent to discharge them with skill and efficiency. He was, however, found guilty of the offense of violating the Texas statute which makes it unlawful for any person to act as conductor of a freight train without having previously served for two years as conductor or brakeman on †Sec. 2. If any person shall act or engage to act as a conductor on a railroad train in this state without having for two (2) years prior thereto served or worked in the capacity of a brakeman or conductor on a freight train on a line of railroad, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than $25 nor more than $500, and each day he so engages shall constitute a separate offense. Sec. 3. If any person shall knowingly engage, promote, require, persuade, prevail upon, or cause any person to do any act in violation of the provisions of the two preceding sections of this act, he shall be be punished by a fine of not less than $25 deemed guilty of a misdemeanor, and shall nor more than $500, and each day he so engages shall constitute a separate offense. [Tex. Laws 1909, chap. 46.] such trains. On that verdict he was sen- | plaintiff in error is that of Dent v. West tenced to pay a fine, and the judgment hav- Virginia, 129 U. S. 114, 32 L. ed. 623, 9 ing been affirmed, the case is here on a record in which he contends that the statute under which he was convicted violated the provisions of the 14th Amendment. Sup. Ct. Rep. 231. The act there under review provided that no one except licensed physicians should be allowed to practise medicine, and declared that licenses should be issued by the state board of health only 1. Life, liberty, property, and the equal to those (1) who were graduates of a protection of the law, grouped together in reputable medical college; (2) to those who the Constitution, are so related that the had practised medicine continuously for ten deprivation of any one of those separate years; or (3) to those who, after examand independent rights may lessen or ex-ination, were found qualified to practise. tinguish the value of the other three. In so Ten years' experience was accepted as proof far as a man is deprived of the right to of fitness, but such experience was not made labor, his liberty is restricted, his capacity the sole test, since the privilege of practo earn wages and acquire property is less- tising was attainable by all others who, ened, and he is denied the protection which by producing a diploma or by standing an the law affords those who are permitted to examination, could show that they were work. Liberty means more than freedom qualified for the performance of the duties from servitude, and the constitutional of the profession. In answer to the conguaranty is an assurance that the citizen tention that the act was void because it shall be protected in the right to use his deprived the citizen of the liberty to conpowers of mind and body in any lawful tract and the right to labor, the court said calling. no objection could be raised to the statutory requirements "because of their strin have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation." If the service is public, the state may prescribe qualifications and require an exam-gency or difficulty. It is only when they ination to test the fitness of any person to engage in or remain in the public calling. Re Lockwood, 154 U. S. 116, 38 L. ed. 929, 14 Sup. Ct. Rep. 1082; Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644. The private employer may likewise fix standards and tests, but, if his business is one in which the public health or safety is concerned, the state may legislate so as to exclude from work in such private calling those whose incompetence might cause injury to the public. But, as the public interest is the basis of such legislation, the tests and prohibition should be enacted with reference to that object, and so as not unduly to "interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Lawton v. Steele, 152 U. S. 137, 38 L. ed. 388, 14 Sup. Ct. Rep. 499. A discussion of legislation of this nature is found in Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 98, 32 L. ed. 353, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28, where this court sustained the validity of a statute which required all locomotive engineers to submit to an examination for color blindness, and then provided that those unable to distinguish signals should not act as engineers on railroad trains. That statute did not prevent any competent person from being employed, but operated merely to exclude those who, on examination, were found to be physically unit for the discharge of a duty where defective eyesight was almost certain to cause loss of life or limb. Another case cited by the The necessity of avoiding the fixing of arbitrary tests by which competent persons would be excluded from lawful employment is also recognized in Smith v. Alabama, 124 U. S. 465, 480, 31 L. ed. 508, 513, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564. There the act provided that all engineers should secure a license, and in sustaining the validity of the statute the court pointed out that the law "requires that every locomotive engineer shall have a license, but it does not limit the number of persons who may be licensed, or prescribe any arbitrary conditions of the grant." This and the other cases establish, beyond controversy, that, in the exercise of the police power, the state may prescribe tests and require a license from those who wish to engage in or remain in a private calling affecting the public safety. The liberty of contract is, of course, not unlimited; but there is no reason or authority for the proposition that conditions may be imposed by statute which will admit some who are competent and arbitrarily exclude others who are equally competent to labor on terms mutually satisfactory to employer and employee. None of the cases sustains the proposition that, under the power to secure the public safety, a privileged class can be created and be then given a monopoly of the right to work in a special or favored position. Such a statute would shut the door, without a hearing, upon many persons and classes of persons who were competent | excludes the engineer on a freight train,— to serve, and would deprive them of the even though, under the rules of all railroads, liberty to work in a calling they were quali- the freight engineer now acts as conductor fied to fill with safety to the public and in the event the regular conductor is disbenefit to themselves. abled en route. This general custom is a practical recognition of their qualification, and is founded on the fact that the engineer, by virtue of his position, is familiar with the rules and signals relating to the train's movement, and peculiarly qualified for the performance of the duties of conductor. If we cannot take judicial knowledge of these facts, the record contains affirmative proof on the subject. For, according to the testimony of the state's witness, "acting as engineer on a freight train would better acquaint one with the knowledge of how to operate a freight train than acting as brakeman." And yet, though 2. The statute here under consideration permits those who had been freight conductors for two years before the law was passed, and those who for two years have been freight conductors in other states, to act in the same capacity in the state of Texas. But barring these exceptional cases, the act permits brakemen on freight trains to be promoted to the position of conductor on a freight train, but excludes all other citizens of the United States from the right to engage in such service. The statute does not require the brakeman to prove his fit | ness, though it does prevent all others from showing that they are competent. The act prescribes no other qualification for appointment as conductor than that for two years the applicant should have been a brakeman on a freight train, but affords no opportunity to any others to prove their fitness. It thus absolutely excludes the whole body of the public, including many railroad men, from the right to secure employment as conductor on a freight train. For it is to be noted that under this statute, not only the general public, but also four classes of railroad men, familiar with the movement and operation of trains, and having the same kind of experience as a brakeman, are given no chance to show their competency, but are arbitrarily denied the right to act as conductors. The statute excludes firemen and engineers of all trains, and all brakemen and conductors of passenger trains. But no reason is suggested why a brakeman on a passenger train should be denied the right to serve in a position that the brakeman on a freight train is permitted to fill. Both have the same class of work to do, both acquire the same familiarity with rules, signals, and methods of moving and distributing cars, and if the training of one qualifies him to serve as conductor, the like training of the other should not exclude him from the right to earn his living in the same occupa tion. It is argued in the brief for the state that, in practice, brakemen on freight trains are generally promoted to the position of freight conductors, and then to the position of conductors on passenger trains. And yet, under this act, even passenger conductors of the greatest experience and highest capacity would be punished if they acted as freight conductors without having previously been brakemen. The statute not only prevents experienced and competent men in the passenger service from acting as freight conductors, but it I understand the railroad business, and know that a locomotive engineer learns as much about how a freight train should be conductor. Acting as engineer on a freight operated by a conductor as a brakeman or train will better acquaint one with a knowledge of how to operate a freight train than acting as a brakeman. Under the rules of all railroads, and of the Texas & Gulf Railway Company, the engineer is held equally responsible with the conductor for the safe operation of the train. All orders are given to the engineer as well as to the conductor. Every order sent to a conductor in a train is made in duplicate, and one copy of it is given to the conductor and the other to the engineer. It is a rule with railway companies that if anything should happen to disable the conductor, or in any way prevent his proceeding with his train, the entrain and handle it into the terminal. The gineer is to immediately take charge of the engineer is constantly with the train and knows all of the signals, knows how the couplings are made, knows how the cars are switched and distributed, and knows how they are taken into the train and transported from one place to another. An engineer is so constantly associated with all the he should know work of a conductor on a freight train that as much about how a All ac freight train should be operated by a con- The |