years, without providing for the assessment of taxes for those years on other property not previously assessed therefor, general legislation having provided that railroad property should be assessed by the comptroller and real estate by the county treasurer. The single question for consideration is whether there is anything in the Federal Constitution which forbids a state to reach backward and collect taxes from certain kinds of property which were not at the time collected through lack of statutory provisions therefor, or in consequence of a misunderstanding of the law, or from negligence of administrative officials, without also making provision for collecting taxes for the same years on other property. There was no new levy of taxes, but the case is one in which, general levies having been made for the years named, certain property which ought to have paid taxes under them-and thus have contributed its share of the expenses of the state--failed to do so, and the effort is to compel that property to discharge its obligation. The objection is not that the property ought not during these years to have paid its proportion of the taxes, but that it ought not now to be compelled to pay such proportion, because certain other property was similarly situated, and no effort is made to compel payment from it. The fault, it fault there be, is one of omission rather than of commission. The act of the legislature is not a mandate to a single officer, charged with the duty of assessing all property, to assess certain property, and to omit to assess the rest; but the general legislation having provided that railroad property should be assessed by the comptroller and real estate by county assessors, the act simply directed the comptroller to discharge the duties of assessment as to the property committed to his care, and omitted any direction to the county assessors. This omission, it is contended, makes the law unconstitutional. In other words, the legislature may not pass an act directing one officer to discharge his duty unless it couples therewith a direction to other officers charged with kindred duty to

perform theirs. If the state of Florida had deemed it for the best interest of its people to encourage the building of railroads by exempting their property from taxation, such exemption could not have been adjudged in conflict with the Fourteenth Amendment, even though thereby the burden of taxation upon other property in the state was largely increased. And, conversely, if the state had subjected railroads to taxation, while exempting some other class of property, it would be difficult to find anything in the Fourteenth Amendment to overthrow its action. Florida Central & P. R. Co. v. Reynolds, 183 U. S. 471.

§ 404. Charging more for shorter than for longer haul. The laws of Kentucky which prohibit railroad companies from charging more for a shorter than for a longer haul, except by permission of the railroad commission in special cases after investigation, does not deny to them the equal protection of the laws. The evil sought to be prevented was the use of public highways in such a manner as to prefer, by difference of rates, one locality to another; and the remedy adopted by the state was to declare such preferences illegal, and to prohibit any person, corporation, or common carrier from resorting to them. That remedy included in its scope every one, without distinction, whose calling, public in its character, gave an opportunity to do the mischief which the state desired to prevent. The practical inefficiency of this remedy to reach the desired end, and the resulting injury to the welfare of both the producers and the consumers of an article like coal, when brought into competition with coal brought from without the state, are strongly urged; but however well-founded such objections may be, they go to the wisdom and policy of the enactment, not to its validity in a Federal point of view. The people of Kentucky, if it can be shown that their laws are defective in their conception or operation, have the remedy in their own hands. Louisville & N. R. Co. v. Kentucky, 183 U. S. 503.

§ 405. Validity of order requiring safety appliances at grade crossings. Neither due process of law nor the equal protection of the laws is denied a street railway company by an order of the commissioner of railroads made and issued under a Michigan statute requiring such street railway company to pay one-half of the expense of constructing and maintaining safety appliances at a grade crossing of a steam railroad which was not built until after the street railway had been constructed. It is contended that a street railway company has a different relation to a street than that which a steam railroad has; that the former "acquires a right to use the same in common with other members of the traveling public, and is not an additional burden upon the street, but is merely an adaptation of the highway to a particular means of travel, and does not constitute an additional servitude. A railroad is, on the other hand, an additional servitude, and if it is built across a highway it must do all things necessary to render the highway, for all its legitimate uses, as safe as it was before the railroad was built across it, or would be if such railroad were not built across it at all." Massachusetts C. R. Co. v. Boston, C. & F. R. Co., 121 Mass. 124. It may be that this difference is recognized as to abutting property owners or crossing railroads, but it can not be recognized as limiting or affecting the power of the state to regulate the management of the roads in view of the danger of their operation to the public. Whether electricity be the motive power, or steam be the motive power, there is enough danger in the operation of either to justify regulation. The record in this case shows that there are thirty-eight daily passenger trains crossing Clark avenue, and that the cars of the plaintiff in error pass every few minutes. It is manifest, as the supreme court of the state observed, that the crossing "is a place of unusual danger, not only to the passengers in steam cars, but also to the passengers in the electric cars," and that the danger is caused by both. In such situation the city is surely not powerless to act, nor before

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acting must it ascertain the exact quantum of damage caused by each road, and by that standard assign the cost of protecting the public. It is also objected to the order that it denies the equal protection of the laws. The argument to support this contention is an extension of that which claims that the use of the street by the plaintiff in error "is merely an adaptation of the highway to the particular means of travel." And it is deduced that an electric street railway has an equality of rights with ordinary vehicles. There is evidently a difference between ordinary vehicles and cars propelled by electricity, which may be recognized by the state in the exercise of its police power. Detroit, Ft. W. & B. I. R. Co. v. Osborn, 189 U. S. 383.

§ 406. Discriminating against railway companies. The Texas statute imposing upon railway companies alone the penalty therein given to contiguous landowners for allow ing Johnson grass or Russian thistle to mature and go to seed, does not deny such railway companies the equal protection of the laws. It is admitted that Johnson grass is a menace to crops, that it is propagated only by seed, and that a general regulation of it for the protection of farming would be valid. It is said that this particular subjection of railway companies to a liability not imposed on other owners of land on which Johnson grass may grow is so arbitrary as to amount to a denial of the equal protection of the laws. With regard to the manner in which such a question should be approached, it is obvious that the legislature is the only judge of the policy of a proposed discrimination. The principle is similar to that which is established with regard to a decision of Congress that certain means are necessary and proper to carry out one of its express powers. M'Culloch v. Maryland, 4 Wheat. 316. When a state legislature has declared that, in its opinion, policy requires a certain measure, its action should not be disturbed by the courts under the Fourteenth Amendment, unless they can see clearly that there

is no fair reason for the law that would not require with equal force its extension to others whom it leaves un touched. Mr. Justice Holmes in delivering the opinion of the court said they felt unable to say that the law may not have been justified by local conditions. It would have been more obviously fair to extend the regulations at least to highways. But it may have been found that the seed of Johnson grass is dropped from the cars in such quantities as to cause special trouble. It may be that the neglected strips occupied by railroads afford a ground where noxious weeds especially flourish, and that whereas self-interest leads the owners of farms to keep down pests, the railroad companies have done nothing in a matter that concerns their neighbors only. Other reasons may be imagined. Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Missouri, K. & T. R. Co. v. May, 194 U. S. 267.

§ 407. Legislative abrogation of fellow servant rule. The equal protection of the laws is not denied by construing the proviso excepting cases of injuries sustained by railway employees "while engaged in the construction of a new road or any part thereof not open to public travel or use," from the provisions of the Minnesota statute abrogating the fellow servant rule, as only exempting incomplete railroads, and therefore as not excepting from the operation of the statute an accident on a narrowgauge track on which dump cars were run by a mining company for the purpose of stripping the earth from the surface of its mine. The state court held that the act was confined to the dangers peculiar to railroads, and did not discriminate against railroads merely as such. It read the proviso as only exempting incomplete roads, marking the time when the statute should take effect, and not as confining it to roads intended for public travel.