gate of his profits? but, What is the value of the services which he renders to the one seeking and receiving such services? The statute provides cumulative penalties for violation of its terms which become so enormous that a single day's violation of the statute might exhaust the entire value of the property of the company in satisfaction of the penalties incurred. In this situation of the case, the Court said, we are brought face to face with a question which legislation of other states is presenting. Do the laws secure to an individual an equal protection when he is allowed to come into court and make his claim or defense subject to the condition that, upon a failure to make good that claim or defense, the penalty for such failure either appropriates all his property, or subjects him to extravagant and unreasonable loss. Clearly such a law is tantamount to a denial of the equal protection of the laws. Notwithstanding the legislative right of classification of industries and occupations, it must be remembered that the equal protection of the laws is guaranteed, and that such equal protection is denied when upon one of two parties engaged in the same kind of business and under the same conditions burdens are cast which are not cast upon the other. If once the door is opened to the affirmance of the proposition that a state may regulate one who does much business, while not regulating another who does the same but less business, then all significance in the guaranty of the equal protection of the laws is lost. This statute is a positive and direct discrimination between persons engaged in the same class of business, and based simply upon the quantity of business which each may do. If such legislation does not deny the equal protection of the laws it is difficult to conceive what legislation would. Cotting v. Kansas City Stock Yard Co. et al., 183 U. S. 79.

§ 546. Municipal regulation of telephone rates. Municipal regulation of the rates which a telephone company may charge, on a lower scale than those prescribed for a

competitor, does not necessarily deny the equal protection of the laws, since such competitor may bring its patrons into communication with a larger number of persons, dwelling in a more widely-extended territory, and may render much more valuable service. Appellant contends that it was denied the equal protection of the laws because, contemporaneously with the fixing of rates for it, different rates were fixed for another telephone company doing business within the city. Whether the rates prescribed by the ordinance discriminated against the complainant and deprived it of the equal protection of the laws, is not made clear. Whether the two companies operated in the same territory, or afforded equal facilities for communication, or rendered the same services, does not appear. For aught that appears a just ground for classification may have existed. Every presumption should be indulged in favor of the constitutionality of the legislation. It is a well-settled rule of constitutional exposition that, if a statute may or may not be, according to circumstances, within the limits of constitutional authority, the existence of the circumstances necessary to support it will be presumed. Home Teleph. & Teleg. Co. v. Los Angeles, 211 U. S. 265.

§ 546a. Regulating private detectives. Municipal ordinances which subject the business of a private detective or detective agency to police supervision, and provide that no person shall carry on such business without first being recommended by the board of police commissioners and taking the oath of a city detective and giving a bond, do not offend against the due process of law and equal protection of the laws clauses of the Fourteenth Amendment. This case is easily within the principle of the police power of the state. It would be very commonplace to say that the exercise of police is one of the necessary activities of government, and all that pertains to it may be subjected to surveillance as a precaution against perversion. This ordinance does no more. It provides in effect that

Due Process-52

all who engage in the business of a private detective or detective agency shall have the sanction of the state, have the stamp of the state as to fitness and character, take an oath to the state for faithful execution of its duties, and give a bond for their sanction. This the state may do against its own citizens and may do against a citizen of any other state. Lehon v. Atlanta, 242 U. S. 53.

§ 546b. Regulating percentage of butter fat in ice cream. State statutes which prohibit the sale as "ice cream" of a product containing less than a fixed percentage of butter fat do not take property without due process of law nor deny the equal protection of the laws-the particular percentages fixed not being so exacting as to be in themselves unreasonable,-although the ice cream of commerce is not iced or frozen cream, but is a frozen confection, varying in composition, and under some formulas may be made without either cream or milk. The legislature may well have found in these facts persuasive evidence that the public welfare required the prohibition enacted. The facts show that, in the absence of legislative regulation, the ordinary purchaser at retail does not and cannot know exactly what he is getting when he purchases ice cream. He presumably believes that cream or at least rich milk is among the important ingredients; and he may make his purchase with a knowledge that butter fat is the principal food value in cream or milk. Laws designed to prevent persons from being misled in respect to the weight, measurement, quality, or ingredients of an article of general consumption are a common exercise of the police power. The legislature defines the standard article or fixes some of its characteristics; and it may conclude that fraud or mistake can be effectively prevented only by prohibiting the sale of the article under the tradename, if it fails to meet the requirements of the standard set. Laws prohibiting the sale of milk or cream containing less than fixed percentages of butter fat present a familiar instance of such legislation. The Supreme Court

has frequently sustained the validity of similar prohibitions. Hutchinson Ice Cream Co. v. Iowa, Crowl v. Pennsylvania, 242 U. S. 153.

§ 546c. State regulation of motor vehicles. Nonresident automobile owners are not denied rights under the Fourteenth Amendment of the Federal Constitution, because the New Jersey Automobile Law (N. J. Laws 1908, p. 613) in addition to providing for the registration of automobiles and the licensing of drivers, requires a nonresident owner to appoint the secretary of state as his agent upon whom process may be served "in any action or legal proceeding caused by the operation of his registered motor vehicle within this state against such owner." The absence from the law of any reciprocal provision by which nonresidents whose cars are duly registered in their home state are given for a limited period free use of the highways in return for similar privileges granted to residents of New Jersey, does not involve an unconstitutional discrimination against nonresidents where the annual fees prescribed are not so large as to be unreasonable, and where any resident owner would be subjected to the full annual charge for the use of the highways for any period, however brief. The fact that the fees collected under the law exceed the amount required to defray the expense of maintaining the regulation and inspection department, which excess, under the law, is to be applied to the maintenance of improved highways, does not render the law invalid as to nonresidents, as violating the provisions of the Fourteenth Amendment. Kane v. New Jersey, 242 U. S. 160.

CHAPTER XXIII

PROCEDURE IN STATE COURTS

§ 547. Different courts in the same state. The power of the state over procedure in its own courts was not intended to be restricted or interfered with by the Fourteenth Amendment, and the Supreme Court has uniformly so declared when the question has been presented to it. The equality clause prohibiting any state from denying the equal protection of the laws, contemplates the protection of persons against unjust discrimination by a state; it has no reference to territorial or municipal arrangements made for different portions of state. It was not intended to prevent a state from arranging and parceling out the jurisdiction of its several courts as it sees fit, either as to territorial limits, subject-matter or amount, or the finality of their several judgments or decrees. Each state has full power to make political subdivisions of its territory for municipal purposes and to regulate their government, including the constitution of courts, and the extent of their jurisdiction. A state may, if it pleases, establish one system of law in one portion of its territory, and another system in another; provided, always, that it does not encroach upon the proper jurisdiction of the United States, and does not abridge the privileges and immunities of citizens of the United States, nor deprive any person of his rights without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws in the same district. By the constitution and laws of Missouri, a court called the St. Louis Court of Appeals has exclusive jurisdiction in cer tain cases, of all appeals from the circuit courts in St. Louis and some adjoining counties; and the Supreme