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schools at one half the regular fare charged by it, as required by Massachusetts Revised Laws, chapter 112, section 72. At the trial the railway company admitted the fact, but set up that the statute was unconstitutional, in that it denied to the company the equal protection of the laws and deprived it of its property without just compensation and without due process of law. In support of this defense it made an offer of proof which may be abridged into the propositions that the regular fare was 5 cents; that during the last fiscal year the actual and reasonable cost of transportation per passenger was 3.86 cents, or, including taxes, 4.10 cents; that pupils of the public schools formed a considerable part of the passengers carried by it, and that the one street railway expressly exempted by the law transported nearly one half the passengers transported on street railways and received nearly one half the revenue received for such transportation in the commonwealth. The offer was stated to be made for the purpose of showing that the plaintiff in error could not comply with the statute without carrying passengers for less than a reasonable compensation and for less than cost. The offer of proof was rejected, and a ruling that the statute was repugnant to the fourteenth amendment was refused. The plaintiff in error excepted and, after a verdict of guilty and sentence, took the case to the supreme judicial court. (187 Mass., 436.) The court overrules the exceptions, whereupon the plaintiff in error brought the case here.
This court is of opinion that the decision below was right. A majority of the court considers that the case is disposed of by the fact that the statute in question was in force when the plaintiff in error took its charter, and confines itself to that ground.
The objection that seems to me, as it seemed to the court below, most serious is that the statute unjustifiably appropriates the property of the plaintiff in error. It is hard to say that street railway companies are not subjected to a loss. The conventional fare of 5 cents presumably is not more than a reasonable fare, and it is at least questionable whether street railway companies would be permitted to increase it on the ground of this burden. It is assumed by the statute in question that the ordinary fare may be charged for these children or some of them when not going to or from school. Whatever the fare, the statute fairly construed means that children going to or from school must be carried for half the sum that wouid be reasonable compensation for their carriage, if we looked only to the business aspect of the question. Moreover, while it may be true that in some cases rates or fares may be reduced to an unprofitable point in view of the business as a whole or upon special considerations (Minneapolis & St. Louis R. R. Co. v. Minnesota, 186 U. S., 256, 267), it is not enough to justify a general law like this, that the companies concerned still may
be able to make a profit from other sources, for all that appears. (Atlantic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S., 1, 24, 25.)
Notwithstanding the foregoing considerations, I hesitatingly agree with the state court that the requirement may be justified under what commonly is called the “police power." The obverse way of stating this power in the sense in which I am using the phrase would be that constitutional rights, like others, are matters of degree, and that the great constitutional provisions for the protection of property are not to be pushed to a logical extreme, but must be taken to permit the infliction of some fractional and relatively small losses without compensation, for some, at least, of the purposes of wholesome legislation. (Martin v. District of Columbia, 205 U. S., 135, 139; Camfield v. United States, 167 U. S., 518, 524.)
If the fourteenth amendment is not to be a greater hamper upon the established practices of the states in common with other governments than I think was intended, they must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens of a part of the community are somewhat increased. The traditions and habits of centuries were not intended to be overthrown when the amendment was passed.
Education is one of the purposes for which what is called the "police power” may be exercised. (Barbier v. Connolly, 113 U.S., 27, 31.) Massachusetts always has recognized it as one of the first objects of public care. It does not follow that it would be equally in accord with the conceptions at the base of our constitutional law to confer equal favors upon doctors or workingmen or people who could afford to buy 1000-mile tickets. Structural habits count for as much as logic in drawing the line. And, to return to the taking of property, the aspect in which I am considering the case, general taxation to maintain public sche an appropriation of property to a use in which the taxpayer may have no private interest, and, it may be, against his will. It has been condemned by some theorists on that ground. Yet no one denies its constitutionality. People are accustomed to it and accept it without doubt.
The present requirement is not different in fundamental principle, although the tax is paid in kind and falls only on the class capable of paying that kind of tax – a class of quasi-public corporations specially subject to legislative control. Thus the question narrows itself to the magnitude of the burden imposed — to whether the tax is so great as to exceed the limits of the police power. Looking at the law without regard to its special operation I should hesitate to assume that its total effect, direct and indirect, upon the roads outside of Boston amounted to a more serious burden than a change in the law of nuisance, for example, might be. See further Williams v. Parker (188 U. S., 491). Turning to the specific effect, the offer of proof was cautious. It was simply that a “considerable percentage” of the passengers carried by the company consisted of pupils of the public schools. This might be true without the burden becoming serious. I am not prepared to overrule the decision of the legislature and of the highest court of Massachusetts, that the requirement is reasonable under the conditions existing there, upon evidence that goes no higher than this. It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case
of real doubt a law must be sustained. Mr. Justice Harlan is of the opinion that the constitutionality of the act of 1900 is necessarily involved in the determination of this case. He thinks the act is not liable to the objection that it denies to the railway company the equal protection of the laws. Nor does he think that it can be held, upon any showing made by this record, to be unconstitutional as depriving the plaintiff in error of its property without due process of law. Upon these grounds alone, and independent of any other question discussed, he joins in a judgment of affirmance. Judgment affirmed.
II. EDUCATION AS A Civic RESPONSIBILITY Colonial Conceptions. — The first permanent outposts of public education were established by the colonials of New England; conspicuously by those of Massachusetts. The acts of the General Court of the Massachusetts Bay Colony of 1642 and 1647 are illuminative in that they contain a definite declaration in support of the principle of the responsibility of the commonwealth for the creation and maintenance of common educational opportunities. From this germinal principle there came the potent influences that have ever been exercised by Massachusetts throughout the United States.
Principles similar to those involved in the early Massachusetts laws were incorporated by Thomas Jefferson in his famous “ Bill for the More General Diffusion of Knowledge,” submitted to the Virginia legislature in 1779. The realization of Jefferson's ideals awaited many years, and the actual acceptance on any large scale of the state responsibility for education was far more belated in the other states of the Union than in New England. The New York statutes of 1791, being the first relating to elementary schools, and that of 1795 establishing a school system temporarily reveal this.
All of the sources mentioned above are necessarily eliminated from this collection, since they are to be incorporated in a companion piece to this source book, on Sources in the History of Education in the United States.
III. EDUCATION LEFT TO THE STATES
Education was left unmentioned in the new Federal Constitution, and the tenth amendment left the matter entirely to the states. This amendment reads:
Art. X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
During the period from the adoption of the Declaration of Independence to the close of the eighteenth century (17761800), all of the states, except Connecticut and Rhode Island, which considered their Colonial Charters sufficient, adopted new constitutions, and a number revised or amended their constitutions one or more times. Three new states, Vermont, Kentucky, and Tennessee, were also admitted during this period. Some idea of the conception as to the importance of education, held at this time by the people of the states, may be obtained by an examination of these early state constitutions."
Of these, the state constitutions of New Hampshire, New Jersey, Delaware, Maryland, Virginia, and South Carolina, in 1776; New York, in 1777; South Carolina, in 1778 and 1790; and Kentucky in 1792 and 1799 were silent on the matter. Connecticut did not adopt a state constitution until 1818, and Rhode Island until 1842, and were likewise silent. Maryland amended its constitution four times, and some of the other states one or more times, without including any mention of education. Of the sixteen states before 1800, half had made no mention whatever of education up to that time. The other half included short sections, which were as follows:
VERMONT, 1. Constitution of 1777 Sec. XL. A school or schools shall be established in each town, by the legislature, for the convenient instruction of youth, with such salaries to the masters, paid by each town; making proper use of school lands in each town, thereby to enable them to instruct youth at low prices. One grammar school in each county, and one university in this State, ought to be established by direction of the General Assembly.
Sec. XLI. Laws for the encouragement of virtue and prevention of vice and immorality, shall be made and constantly kept in force; and provision shall be made for their due execution; and all religious societies or bodies of men, that have or may be hereafter united and incorporated, for the advancement of religion and learning, or for other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities and estates which they, in justice ought to enjoy, under such regulations, as the General Assembly of this State shall direct.
2. Constitution of 1787 CHAP. II, Sec. 38. Laws for the encouragement of virtue, and prevention of vice and immorality, ought to be constantly kept in force, and duly executed; and a competent number of schools ought to be maintained in each town for the convenient instruction of youth; and one or more grammar schools be incorporated, and properly supported in each county in this State. And all religious societies, or bodies of men, that may be hereafter united or incorporated, for the advancement of religion and learning, or for other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities, and