plied by him for the prosecution of the work. The latter is the more substantial, as, of course, the suit was begun in the name of the United States to the real plaintiffs' use. But the objection is not serious in either form. No suit had been brought by the United States for more than six months from the completion of the work, affidavits were made and copies filed by intervenors, and in the circumstances the omission was only a formal defect. The language of the statute that after giving the affidavit the party should be furnished with a certified copy of the contract and bond, "upon which he or they shall have a right of action," etc., may be read as meaning 'upon which bond' as easily as 'upon doing which,' and hardly can be construed as making a condition precedent. The conditions are attached in the form of provisos by later words.

Next it is objected that certain claimants are not entitled to the benefit of the bond, either because they had a lien or because the service was too remote. Of the former class are claims for cartage and towage to the spot where the work was going on. We agree with Judge Putnam in American Surety Co. v. Lawrenceville Cement Co., 110 Fed. Rep. 717, that in these small matters the objection if carried to an extreme would defeat the purpose of the statute, that such liens ordinarily are not insisted upon, and that it would be unreasonable to let the statute 'interfere with the convenience of minor dealings in such methods as the usual practices establish.' Of the other class are the claims for patterns furnished to the moulding department of the Puget Sound Engine Works. As was said by the judge below, those who furnish the patterns have as fair a claim to be protected as those who erect the scaffolding upon which the carpenters stand in doing their work upon the ship.

Next it is said that the bond was without consideration because the contract was made on February 17, and the bond not executed until February 27, ten days later. But

the transactions may be regarded as simultaneous in a practical sense, and the bond being under seal, consideration is presumed.

The assignment of some of the claims did not affect the remedy. United States v. Rundle, 100 Fed. Rep. 400.

The allowance of a docket fee of $10 to each claimant appears to us to be correct. Rev. Stat., § 824. The claims are several and represent distinct causes of action in different parties, although consolidated in a single suit. Judgment affirmed.

MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY v. TURNIPSEED, ADMINISTRATOR.

ERROR TO THE SUPREME COURT OF THE STATE OF

MISSISSIPPI.

No. 59. Submitted November 30, 1910.-Decided December 19, 1910.

A general classification in a state statute resting upon obvious principles of public policy does not offend the equal protection provision of the Fourteenth Amendment because it includes persons not subject to a uniform degree of danger.

An employé of a railway company, although not engaged in the actual operation of trains, is nevertheless within the general line of hazard inherent in the railway business.

A state statute abrogating the fellow-servant rule as to employés of railway companies is not unconstitutional under the equal protection provision of the Fourteenth Amendment because it applies to all employés and not only to those engaged in the actual operation of trains; and so held as to § 3559 of the Mississippi constitution of 1890.

Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact is within the general power of government to enact rules of evidence; and neither due process of law nor equal protection of the law is denied if there is a rational connection between the fact and the ultimate fact presumed, and the party af

Argument for Plaintiff in Error.

219 U. S.

fected is afforded reasonable opportunity to submit to the jury all the facts on the issue.

It is not an unreasonable inference that a derailment of railway cars is due to negligence in construction, maintenance or operation of the track or of the train, and the provisions of § 1985 of the Mississippi Code of 1906, making proof of injury inflicted by the running of cars or locomotives of a railway company prima facie evidence of negligence on the part of servants of the company, does not deprive the companies of their property without due process of law or deny to them the equal protection of the law.

Such a statute in its operation only supplies an inference of liability in the absence of other evidence contradicting such inference.

THE facts, which involve the constitutionality under the equal protection clause of the Fourteenth Amendment of certain provisions of the Code and of the constitution of the State of Mississippi, are stated in the opinion.

Mr. James N. Flowers for plaintiff in error:

Section 3559, Annotated Code, as now construed by the Supreme Court of Mississippi, violates the Fourteenth Amendment in that it denies to railroad corporations the equal protection of the laws. Said section is constitutional as construed by that court in Ballard v. Cotton Oil Co, 81 Mississippi, 507, and Bradford Construction Co. v. Heflin, 88 Mississippi, 362. That state statutes may abolish the fellow-servant rule in part as to employés of railroad companies and leave it in full operation as far as it affects the rights of servants of other masters is conceded, Minneapolis &c. Ry. Co. v. Herrick, 127 U. S. 210; Tullis v. Lake Erie &c. Ry. Co., 175 U. S. 348; Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, but they can do so only as to such employés as are emperilled by the hazardous nature of the business of operating railroad trains. A trackman is in no more danger from the operation of trains than is a telegraph oper

ator.

The statute cannot be consistently applied to the case

219 U. S.

Argument for Plaintiff in Error.

of employés, except those who take part in the actual operation of trains, or whose duties expose them to dangers from the actual operation of trains. The dangerous part of the railroad business, which justifies the classification of it as a dangerous business, is the running of trains. The statute only applies to those who take part in such dangerous business, or whose duties expose them to such dangers.

To determine whether the person injured is entitled to the protection of § 193 of the state constitution, one should not look at the character of the employment of the person whose negligence caused the injury, but to the character of the employment of the person who was himself injured.

In this case the man killed was engaged in no dangerous business. His injuries did result from a running train, the said train having been derailed and turned over on him.

The deceased was not even engaged about the duties of his employment at the time he was hurt, but had stopped at the noon hour and was walking along the track. His duties did not require him to be where he was. It was a place of his own selection. He cannot be said to have been engaged in a dangerous employment just because he worked on the track and a train running along the track might jump the track and fall on him. Railway Co. v. Mackey, supra; Tullis v. Railroad Co., 175 U. S. 351; Blomquist v. Great Northern R. R. Co., 65 Minnesota, 69; Jemming v. Great Northern R. R. Co. (Minn.), 1 L. R. A. (N. S.) 702; Anderson v. Railroad Co., 74 Minnesota, 432.

Cases allowing the railroad employé to plead such statutes have proceeded on the idea that the particular branch of employment was hazardous. Railroad Co. v. Pontius, 157 U. S. 200; Dunn v. Railroad Co., 107 N. W. Rep. 616; Callahan v. Railroad Co., 170 Missouri, 473, affirmed in 194 U. S. 826.

In the effort to make it easy to fasten liability upon

Argument for Plaintiff in Error.

219 U.S.

railroad companies the Mississippi legislature has gone to the extreme. The necessary effect of § 1985 of the Mississippi Code of 1906 is to make railroad corporations liable in every instance of damage to persons or property unless it is able to meet successfully the burden of proving its innocence. The burden of proof is shifted to the defendant and railroad corporations are put in a class to themselves. It is legislation directed specially against railroads. There is no reason in the classification. It is arbitrary and makes it easier to recover against railroad defendants than against any other defendants. It is a burden put upon them which is put upon no other class of litigants.

The inherent danger of railroading is not a matter to be taken into consideration in the enactment of rules of evidence or of law pertaining to the enforcement of rights of action for injuries inflicted by running trains. The "difference" between railroad companies and other persons and corporations in this regard does not bear a reasonable and just relation to the subject in respect of which the classification is proposed, and therefore such classification is arbitrary. Atchison, T. & S. F. R. R. Co. v. Matthews, 174 U. S. 96.

The statute, although upheld, was recognized as being on the border line; four members of this court condemned it. Missouri Pacific R. R. Co. v. Humes, 115 U. S. 512; Railroad Co. v. Paul, 173 U. S. 404, distinguished; and see Ballard v. Oil Co., supra; Bradford Construction Co. v. Heflin, supra; Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S.

150.

This statute will bear upon railroad companies in a discriminating and unequal way and deprive them of their property without due process of law. No law authorizing persons to recover of railroad companies on unjust and illegal claims can be justified on grounds of public policy.