found to be lawful; nor to impose a penalty for acts of disobedience, committed after the carrier had ample opportunity to test the validity of administrative orders and failed to do so. Where after reasonable notice of the making of an administrative order, the carrier failed to resort to the safe, adequate, and available remedy by which it could test in the courts the validity of such order, and preferred to make its defense by attacking the validity of the order when sued for the penalty, which may be any amount, up to $5,000 a day, it is subject to the penalty when that defense proved to be unsuccessful, without being denied the equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution. Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651. § 425. Taxation of foreign railway company. There is no denial of the equal protection of the laws, or of due process of law, in the imposition upon a foreign railway company, under Arkansas Laws 1899, No. 112, in addition to the general property tax on the property of foreign corporations within the state, of an annual franchise tax for the privilege of transacting intrastate business in corporate form, fixed solely by reference to the property of the corporation that is within the state and used in business within the state, and excluding any imposition upon, or interference with, interstate commerce, where the classification of corporations adopted by that statute is not unreasonable, and corporations of the class to which the company belongs are not discriminated against in favor of domestic corporations. The tax is not in any wise based upon the receipts of the railroad company from interstate commerce, either taken alone or in connection with the receipts from its intrastate business. The tax is measured by reference to property situated wholly within the confines of the state. The state may in addition to the imposition of an ordinary property tax upon an instrumentality of interstate or international commerce, impose a franchise tax ascertained by reference to the property of the corporation within the state, including that employed in interstate commerce, if amounting to no more than would be legitimate as an ordinary tax upon the property, valued with reference to the use in which it is employed. Nothing in the Fourteenth Amendment imposes any ironclad rule upon the states with respect to their internal taxation, or prevents them from imposing double taxation, or any other form of unequal taxation, so long as the inequality is not based upon arbitrary distinctions. St. Louis S. W. R. Co. v. Arkansas ex rel. Norwood, 235 U. S. 350. § 426. Discrimination between carrier and shipper as to attorneys' fees in demurrage cases makes law invalid. The Kansas "reciprocal" or "mutual demurrage" statute provided that a railway company failing to furnish cars upon proper application to shippers of freight is liable to the shipper for all actual damage suffered, for a penalty of five dollars per day for each car not so supplied, and for a reasonable attorney fee. Shippers who fail to load cars within forty-eight hours after they are placed at their disposal are subject to a like penalty of five dollars a day for each car not used and for the actual damages the railroad company may sustain by reason of the failure of the shipper to use said cars, but are not made liable for attorney fees. Such legislation is properly to be regarded as a police regulation, but a police regulation is like any other law subject to the equal protection of the laws clause of the Fourteenth Amendment to the Federal Constitution. The constitutional guaranty entitles all persons and corporations within the jurisdiction of the state to the protection of equal laws, in this as in other departments of legislation. It does not prevent classification but does require that classification shall be reasonable not arbitrary and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation. The statute clearly recognizes that either party may be obliged to sue the other in order to recover the penalty for damages, or both. No reason is suggested and none occurs to the court, the opinion reads, why the railroad company, when plaintiff in such an action, will not require the services of an attorney as well as the shipper when he is plaintiff. There is nothing in the nature of the cause of action that renders the burden of preparation more onerous, as a rule, to the shipper when he is plaintiff than to the company when it is plaintiff. There is nothing discernible, therefore, in the purposes of the legislation-which are to require the prompt furnishing of cars for use, and the prompt use of cars when furnished, and to redress a disregard of either of these requirements by suit when necessary to give ground for a distinction granting attorney's fees to the shipper when he sues, and denying attorney's fees to the company when it sues. The statute while recognizing the existence of a special burden in the litigation which may grow out of the statute allows compensation for it in favor of one class of litigants but does not allow like compensation to the other class when subject to the like burden. This is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. Atchison, T. & S. F. Railway Co. v. Vosburg, 238 U. S. 56. § 427. Requiring railroads to provide drainage for water contrary to common law rule. The state of Missouri enacted a law making it the duty of railroads in the state to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains, or water courses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad, whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad. A penalty was provided for the violation of the statute. The common law rule prevails in the state that surface water is a common enemy against which every landowner may protect himself as best he may. The Federal Supreme Court rejected the contention that the statute denied the plaintiff in error the equal protection of the laws as quite unsubstantial. Railroad embankments, the opinion reads, stretching unbroken across tracts of land that are liable to injury from surface waters, differ so materially from other artificial constructions and improvements to which the doctrine of the "common enemy" applies, that there is very plainly a substantial ground for classification with respect to the object of the legislation. The statute applies alike to corporations, companies, and persons owning or operating railroads that are so constructed as to obstruct the flow of drainage and surface waters, and the statute was held unexceptionable in that regard. Chicago & Alton Railroad Co. v. Tranbarger, 238 U. S. 67. § 427a. Requiring railway company to remove noxious weeds. The requirement of Indiana Act of March 6, 1889, that railway companies cut down and destroy noxious weeds "on lands occupied by them," under penalty of $25, recoverable by "any person feeling himself aggrieved" by the company's neglect or refusal, will not be held to offend against the equal protection of the law clause of the Fourteenth Amendment to the Federal Constitution, where the statute has as yet been given no broader construction by the state courts than one which permits a single recovery by a contiguous landowner because of a railway company's failure to cut and destroy weeds on its right of way. The court refused to anticipate a construction of the statute not yet given, and which may never be given, and on that anticipation hold the statute invalid, and re-expressed the propriety of waiting, when a state statute is attacked for unconstitutionality, until the state court has given it a construction which may justify the attack. The validity of the statute was upheld |