insurance companies engaged in business for profit (and it is not necessary to refine as to the distribution of such profits) and lodges and associations of a mutual benefit or benevolent character, having in mind also the necessity of the prompt payment of the insurance money in very many cases, in order to provide the means of living of which the beneficiaries had been deprived by the death of the insured. Fidelity Mutual Life Association v. Mettler, 185 U. S. 308.

The Texas statute authorizing the recovery of damages and attorneys' fees for failure by life and health insurance companies to pay losses is not repugnant to the guaranty of the equal protection of the laws, made by the Federal Constitution. Plaintiff in error urges the unconstitutionality of the Texas statute in such cases notwithstanding the decision of the court in Fidelity Mut. L. Ass'n v. Mettler, 185 U. S. 308. It is insisted, however, that to justify a recovery of the statutory damages demand of payment of the policy before suit was necessary, notwithstanding the denial of liability by the com.pany. This contention was sustained by the Texas court, but it was held that demand could be made after suit and set up by an amended petition as an original suit. The Supreme Court adopted this construction of the state statute. Iowa Life Insurance Co. v. Lewis, 187 U. S. 335.

The equal protection of the laws is not denied insurance companies by the provisions of the Nebraska statute allowing a reasonable attorney's fee to plaintiff in case of the unsuccessful defense by an insurance company of a suit on a policy of insurance covering real property which has been totally destroyed by the causes insured against. The statute is assailed as repugnant to the equality clause of the Fourteenth Amendment, because it arbitrarily subjects insurance companies to the liability for attorneys' fees when other defendants in other classes of cases are not so subjected; that it imposes no such burden on the plaintiff when the suit is successfully defended; and, because the statute arbitrarily distinguishes between

insurance policies on real property and policies on other kinds of property. Each and all of these objections must rest on the assumption that contracts of insurance, generically considered, do not possess such distinctive attributes as to justify their classification separate from other contracts, and that contracts of insurance, as between themselves, may not be classified separately depending upon the nature of the insurance, the character of the property covered, and the extent of the loss which may have supervened. But the unsoundness of these propositions is settled by the previous adjudications of the Supreme Court in Orient Insurance Co. v. Daggs, 172 U. S. 557; John Hancock Mutual Life Ins. Co. v. Warren, 181 U. S. 73; Fidelity Mutual Life Association v. Mettler, 185 U. S. 308. In all three of these cases it was held that insurance companies were so distinct as to justify legislative classification apart from other contracts or to authorize a classification of insurance contracts so as to subject one character of such contracts when put in one class to one rule and other varieties of such contracts when placed in another class to a different rule. The only claimed distinction between the cases previously decided and the present one is that in this case the classification is made to depend, not alone upon the general character of the contract, but upon the kind of property insured and the extent of the loss. But as the rule settled by the previous cases is that contracts of insurance from their very nature are susceptible of classification, not only apart from other contracts, but from each other, it must follow, as the lesser is included in the greater, that the character of the property insured and the extent of the loss afford reasons for subclassification. It is argued, however, that no reason could have existed for classifying losses on real estate separately from losses on other property. The distinction between real and personal property has in all systems of law constantly given rise to different regulations concerning such property. The difference of relation between the parties in case of

a total loss and of a partial loss, needs but to be suggested. In the one case there is ground for a reasonable difference of opinion in adjusting the payment under the policy. In the other the amount being fixed, the question of legal liability under the policy would be, as a rule, the only matter for consideration. It is obvious that the total destruction of real estate covered by insurance necessarily concerns the homes of many of the people of the state. If, in regulating and classifying insurance contracts, the legislature took the foregoing considerations into view and provided for them, it cannot be said that in doing so it acted arbitrarily and wholly without reason. Farmers' and Merchants' Ins. Co. v. Dobney, 189 U. S. 301.

§ 541. Attorneys' fees to successful plaintiff in mandamus proceedings. Damages for attorneys' fees for services rendered to the successful plaintiff in mandamus proceedings may be awarded under the authority of Kansas General Statute, 1909, § 6319, without denying to the defendant the equal protection of the laws, although no reciprocal right in case of success is given to defendant, and no such right is given to litigants generally. It is not open to controversy that the Fourteenth Amendment was not intended to deprive the states of their power to establish and regulate judicial proceedings, and that its provisions therefore only restrain acts which so transcend the limits of classification as to cause them to conflict with the fundamental conceptions of just and equal legislation. It cannot be said that there is not such a distinction between the extraordinary proceeding by mandamus and the ordinary judicial proceedings as affords a ground for legislating differently concerning the two. A distinction must obtain between that which is ordinary and usual and that which is extraordinary and unusual, between the duty to perform a ministerial act concerning which there is room neither for the exercise of judgment nor discretion, and the right, on the other hand, to bring into play

judgment and discretion as prerequisites to the performance of an act of a different character, and the distinction which justifies the classification made by the statute also answers the argument that the equal protection clause of the Fourteenth Amendment is violated because the allowance of attorneys' fees was not reciprocal. Missouri Pacific Ry. Co. v. Larabee, 234 U. S. 459.

§ 542. Certain penalties imposed on common carriers for failure to settle claims. Common carriers are not denied the equal protection of the laws guaranteed by the Fourteenth Amendment, by the provisions of the South Carolina statute requiring them to adjust and pay every claim for loss and damage to an intrastate shipment within forty days after the filing of a claim, under penalty of $50 for each failure or refusal, where there can be no award of a penalty under the statute unless there is a recovery of the full amount claimed. The power of classification is conceded, but this will not uphold one that is purely arbitrary. There must be some substantial foundation and basis therefor. It is asserted that this is merely legislation to compel carriers to pay their debts within a given time, by an unreasonable penalty for any delay, while no one else is so punished, and that there is no excuse for such distinction. While the principles upon which classifications may rightfully be made are clear and easily stated, yet the application of those principles to the different cases is often attended with much difficulty. This is not an act leveled against corporations alone, but includes all common carriers. The classification is based solely upon the nature of the business, that being of a public character. The matter to be adjusted is one peculiarly within the knowledge of the carrier. It receives the goods and has them in its custody until the carriage is completed. It knows what is received and what is delivered. It knows what injury was done during the shipment, and how it was done. It may be stated as a general rule that an act which puts in one class all

engaged in business of a special and public character, requires of them the performance of a duty which they can do better and more quickly than others, and imposes a not exorbitant penalty for a failure to perform that duty within a reasonable time, cannot be adjudged unconstitutional as a purely arbitrary classification. Mr. Justice Brewer, in delivering the opinion of the court in this case, said: "While in this case the penalty may be large as compared with the value of the shipment, yet it must be remembered that small shipments are the ones which especially need the protection of penal statutes like this. If a large amount is in controversy, the claimant can afford to litigate. But he cannot well do so when there is but a trifle of a dollar or two in dispute, and yet justice requires that his claim be adjusted and paid with reasonable promptness. Further, it must be remembered that the purpose of this legislation is not primarily to enforce the collection of debts, but to compel the performance of duties which the carrier assumes when it enters upon the discharge of its public function. We know there are limits beyond which penalties may not go even in cases where classification is legitimate; but we are not prepared to hold that the amount of penalty imposed is so great, or the length of time within which the adjustment and payment are to be made is so short, that the act imposing the penalty and fixing the time is beyond the power of the state." Seaboard Air Line Ry. v. Seegers, 207 U. S. 73.

The Mississippi statute imposing a penalty of $25 for the failure to settle a claim for damages to an intrastate shipment betwen two points on the carrier's line within sixty days from the giving of notice of the claim, where, upon the trial, the actual damages were assessed at the sum stated in the notice, denies the carrier neither due process of law nor the equal protection of the laws. As applied by the state court the statute is repugnant neither to the due process of law nor equal protection clause of the constitution, but on the contrary, merely provides a