(108 A.)

and for which it might fix a compensation, and charge the payment of the same upon the theater manager whose business was the subject of the regulations.

ers of discretion and judgment possessed by [respondent of its liberty and property withthe General Assembly, and it is no valid ob- out due process of law. We find no validity jection to a regulation that its necessity in any of them. They are all based upon should not be apparent to some mind which its misconception that the relation of the is not fully informed as to the situation and theater licensee to the fire inspector is that the particular purpose which is behind the of master and servant; whereas in fact and regulation. If it was for the members of a law the fire inspector is a public servant, court to prescribe the policy and method of performing public duties, which it was clearregulation, they might adopt an entirely dif-ly within the power of the state to regulate, ferent scheme. They might be of the opinion that the plan of the Legislature is practically faulty and ill-advised; that it will quite like ly fail of its purpose, or that some of its details are unnecessary; but for any or all of these reasons the legislation in question should not be declared unconstitutional unless the provisions are without doubt unre lated to the matter under consideration and so clearly unreasonable and arbitrary as to be oppressive. Our fundamental test must be applied. If a state of facts could exist which would justify the regulation, it is to be presumed that it did exist.

In the case dealing with billboard advertising in the city of Providence, Horton v. Old Colony Bill Posting Co., 36 R. I. 507, 90 Atl. 822, Ann. Cas. 1916A, 911, the ordinance under consideration was passed in accordance with the authority given by statute to the city council of Providence to regulate such out-door advertising "in order to preserve the health, safety, morals, and comfort of the inhabitants of this state." This was a delegation to said city council of a part of the police power of the state. An

examination of said ordinance discloses a

number of regulations which are not apparently necessary for the preservation of the health, safety, morals, and comfort of the inhabitants of the state. As to a number of the provisions this court was not free from doubt, even as to their reasonableness; yet they were approved. The court held that "In view of the fact that the lawmaking body has far more opportunity to ascertain and meet the public need than the court can have, and in view of the wide latitude permitted the legislative branch in determining

The respondent's contention is that, inasmuch as said section 5 does not operate uniformly upon all the theaters in the state, the act is therefore in violation of article 1, § 2, of the Constitution of Rhode Island, which declares that "the burdens of the state ought to be fairly distributed among its citizens," and is in violation of the Fourteenth Amendment to the Constitution of the United States, which requires that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.

In

The respondent contends that said section 5 imposes an unequal burden on him in the conduct of his business-in other words, imposes a heavier burden upon his theater and all other theaters situated in the city of Providence than it imposes on the same business in other cities. ness in other cities. It is not suggested that the act is invalid because it operates only as to cities, and does not apply to the towns, and yet some of our towns have thickly populated and congested centers in which theaters are conducted. In Providence, the largest city in the state, we have special provitors for the theaters. No fireguard is re sions for supplying fireguards or fire inspecthe cities of Pawtucket and Cranston theaquired for theaters situated in towns. ters must pay the city $2 per day for a regular fireman stationed in the theater; theaters in Newport pay the city $3 per day for ters in Newport pay the city $3 per day for a regular fireman; theaters in Providence and the public needs and the appropriate remeIn Providies, the court should uphold the limitations dence, Woonsocket, and Central Falls theaNewport pay the same amount. on size" of billboards "imposed by this sec- ter licensees must "employ" a suitable person, tion, which in our opinion are not clearly approved in Providence by the board of fire unreasonable," and the court quoted with ap-commissioners and in Woonsocket and Cenproval the language of the opinion in Re tral Falls by the chief of the fire department. Wilshire (C. C.) 103 Fed. 620, as follows: In Providence the theater must pay what"I entertain a good deal of doubt in respect ever price may be necessary, which shall to the reasonableness of the maximum limita- not be less than $3 per day, to secure a comtion placed upon the structures in question the municipal authorities of the city of Los An-petent person approved by the board of fire geles, but the fact that this doubt exists is sufficient reason for the court to decline to adjudge the ordinance invalid. It is only in clear cases that such a judgment should be given."

In the foregoing part of the opinion I have dealt with the respondent's various contentions that said section 5 deprives the

commissioners.

The statute makes three classes of theaters, and imposes a slightly different burden on each class; Providence and Newport in one class, Pawtucket and Cranston in another class, and those in Woonsocket and Central Falls in a third class. The Providence class differs from the Woonsocket and Central

Falls class, in that the Providence theater (those transporting heavy loads, probably do must pay the fireguard at least $3 per day far greater damage to the highways than and such fireguard is not permitted to have do pleasure motor vehicles, which are reany other duties; whereas in the Woonsocket quired to pay a registration fee (dependent and Central Falls class no minimum fee is upon horse power) ranging from $5 to $25, fixed and the fireguard is not forbidden to while commercial motor vehicles, and motor have other duties. It is to be noted that trucks, regardless of the horse power thereof, the act applies equally to all theaters in the pay a fee of $7. But such legislation has been city of Providence. held to be not unconstitutional. Hendrick v. Maryland, 235 U. S. 610, 35 Sup. Ct. 140, 59 L. Ed. 385; Kane v. New Jersey, 242 U. S. 160, 37 Sup. Ct. 30, 61 L. Ed. 222.

Said section 5 is not in conflict with the Constitution of Rhode Island (article 1, § 2), which reads as follows:

"All free governments are instituted for the protection, safety and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens."

In the case of In re Dorrance Street, 4 R. I. at page 249, Ames, C. J., in discussing the last clause of the foregoing section, said: "We will not stop to notice the very general language and declaratory form of this clause, setting forth principles of legislation rather than rules of constitutional law-addressed

While the Fourteenth Amendment to the

federal Constitution provides that no state shall deny to any person within its jurisdic tion the equal protection of its laws, this provision has been uniformly held to be entirely consistent with the power of a state Legislature to make classification as to the subjects of legislation provided all members of a class are treated equally. The following language was quoted with approval by this court in Sayles v. Foley, Blomquist, 38 R. I. 491, 96 Atl. 340:

"In Jeffrey Mfg. Co. v. Blagg, 235 U. S. 576 rather to the General Assembly, by way of ad- [35 Sup. Ct. 169, 59 L. Ed. 364], it is stated: vice and direction, than to the courts, by way proposition that it is not the purpose of the "This court has many times affirmed the general of enforcing restraint upon the lawmaking pow- Fourteenth Amendment, in the equal protection er. We do not mean to say that a law, pur- clause, to take from the states the right and porting to impose a tax or burden of some sort upon the citizen, may not be in its dis- power to classify the subjects of legislation. tribution of the burden, both in design and ef- It is only when such attempted classification is arbitrary and unreasonable that the court fect, so outrageously subversive of all the rules of fairness as not to come so far within the can declare it beyond the legislative authoripurview of this general clause as to enable the ty. In Kidd v. Ala., 188 U. S. 730, 733 [23 court to save the citizen from oppression by Sup. Ct. 401, 47 L. Ed. 669], the court says: declaring it to be void. But evidently a wide We need not repeat the commonplaces as to discretion with regard to the distribution of the the large latitude allowed to the states for burdens of state amongst the citizens was in-classification upon any reasonable basis'" (citing cases). tended to be reposed in the General Assembly by the will of the people, as signified in this clause of the Constitution. The form is 'ought to be,' the word is 'fairly' distributed, not 'equally' even-unless equality be fair, which it is not always in any sense, and never is in some senses; and especially the words are not 'equally upon property,' or words to that effect, as in the Constitution of Louisiana. All taxation is more or less unfair, and in any proper sense even unequal. Perfect fairness would be to make all those who are benefited by the burdens of the state to bear them, and to extend the burden in due proportion to every person according to this benefit."

Of course it is not only impracticable, but impossible, to frame and enforce laws which do exact justice to all. Our statute requiring motor vehicles to be registered and licensed is a good example. In order to maintain and improve our state highway system, a tax is imposed on motor vehicles; no similar tax is imposed on horse-drawn vehicles using and impairing the highways. And again the annual tax itself is graduated according to the horse power of the motor vehicle, without any reference whatever to the time or distance which motor vehicles travel on

See, also, Horton v. Old Colony Bill Posting Co., 36 R. I. 507, 90 Atl. 822, Ann. Cas. 1916A, 911; Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342, 59 L. Ed. 628, L. R. A. 1915F, 829; Bosley v. McLaughlin, 236 U. s. 385, 35 Sup. Ct. 345, 59 L. Ed. 632; Singer Sewing Machine Co. v. Brickell, 233 U. S. 304, 34 Sup. Ct. 493, 58 L. Ed. 974; Keokee Consolidated Coke Co. v. Taylor, 234 U. S. 224, 34 Sup. Ct. 856, 58 L. Ed. 1288; International Harvester Co. v. Missouri, 234 U. S. 199, 34 Sup. Ct. 859, 58 L. Ed. 1276, 52 L. R. A. (N. S.) 525; St. John v. New York, 201 U. S. 633, 637, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 Ann. Cas. 909.

Mr. Justice Van Devanter, in discussing the power of the Legislature to make classification, said in Lindsley v. Natural Carbonic Gas Co., 220 U. S. at page 78, 31 Sup. Ct. 337, 340 (55 L. Ed. 369, Ann. Cas. 1912C, 160):

"The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these: (1) The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of

(108 A.)

that regard, and avoids what is done only when [ "Whenever a religious society shall spread it is without any reasonable basis and there- its tent in a community and hold its meetings, fore is purely arbitrary. (2) A classification or holds its meetings out of doors in such comhaving some reasonable basis does not offend munity, that all landowners within one mile of against that clause merely because it is not such meeting lose the right, while such meeting made with mathematical nicety, or because in is being so held, to use their property in the practice it results in some inequality. (3) When same manner as they may lawfully use it bethe classification in such a law is called in ques- fore the meeting commenced and after it ended." tion, if any state of facts reasonably can be conceived that would sustain it, the existence Shore resorts, county fairs, and even the of that state of facts at the time the law was same religious societies, when holding their enacted must be assumed. (4) One who as- meetings in a church edifice, are not similarsails the classification in such a law must car-ly protected from encroachment. But as the ry the burden of showing that it does not rest act applied to all religious societies it was upupon any reasonable basis, but is essentially held as a valid exercise of the police power arbitrary"-citing Bachtel v. Wilson, 204 U. S. 36, 41 [27 Sup. Ct. 243, 51 L. Ed. 357]; Louis- of the state. ville & Nashville R. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84; Ozan Lumber Co. v. Union County Bank, 207 U. S. 251, 256, 28 Sup. Ct. 89, 52 L. Ed. 195; Munn v. Illinois, 94 U. S.

113, 132, 24 L. Ed. 77; Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 615, 19 Sup. Ct. 553, 43 L. Ed. 823.

As was said in Heath & Milligan v. Worst, 207 U. S. at page 354, 28 Sup. Ct. 119, 52 L. Ed. 236:

"A classification may not be merely arbitrary, but necessarily there must be great freedom of discretion, even though it result in 'ill-advised, unequal, and oppressive legislation.""

In American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 21 Sup. Ct. 43, 45 L. Ed. 102, it was held that:

"A state statute imposing a license tax upon ness of refining sugar and molasses does not, by persons and corporations carrying on the busiexempting from such tax 'planters and farmers grinding and refining their own sugar and molasses,' deny sugar refiners the equal protection of the laws within the Fourteenth Amendment."

In Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, an act limiting labor in mines only to eight hours a day was held a valid exercise of the police power and not in violation of the Fourteenth Amendment.

In McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206, 53 L. Ed. 315, the court refused to hold that a legislative act requiring coal to be measured for payment of miners' wages before screening to be an unreasonable police

constitutional under the due process or the equal protection clause of the Fourteenth Amendment, and held that it was not an unreasonable classification to divide coal mines into those where less than ten miners are employed and those where more than that number are employed, and that a state police regulation is not unconstitutional under the equal protection clause of the Fourteenth Amendment because applicable only to mines where more than ten miners are employed.

In State v. Read, supra, 12 R. I. 137, this court held valid a statute making a very novel classification in reference to the use of land within one mile of an out-door meeting held by any religious society. The stat-regulation, and held that the act was not unute prohibited all persons other than the religious society, except "innkeepers, grocers, or other persons, from pursuing their ordinary business at their usual place of doing business," and persons selling victuals in their usual place of abode from selling food or other merchandise within one mile of such meeting. The act was unnecessary to prevent the sale of intoxicating liquors, as at the time of its passage statutes were in force, with penalties more severe, prohibiting the sale of intoxicating liquors. To sell food on one's property (except "in his usual place of abode") within one mile of an out-door meeting held by any religious society, is made a misdemeanor by the statute, unless the sale be made with the consent of the society. Had the society consented to the acts complained of, the defendant would have been guilty of no offense. Giving the society the right to consent to such sales might be regarded as tantamount to creating a monopoly in the sale of food, etc., and hence creating a favored class. The statute prohibited all persons other than the society within one mile radius of the meeting from using their property in a particular manner without consent of the society. The statute imposed an unequal burden upon one class of landowners. It says in substance:

In Louisiana St. Board of Health v. Standard Oil Co., 107 La. 713, 31 South. 1015, the court considered an act which required the inspection of coal oil "in every city and town of not less than two thousand inhabitants, except the city of New Orleans." Inspection in the latter city had been provided for by a special act. The court assumed that there was no question as to the constitutionality of the act under consideration.

In Minneapolis R. R. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585, a statute providing that if live stock strayed upon railroad tracks, by reason of there being no fence, where the railroad had the right to fence, and were injured or killed, the railroad should be liable for the damage, and if such corporation neglects to pay the value of damage done to such stock within 30 days

after notice in writing, accompanied by an considered the validity of a statute limiting affidavit of such injury or destruction, "such the rights of railroads and their employés owner shall be entitled to recover double the to contract. The act applied to railroad corvalue of the stock killed or damages caused | porations only. It was held that the "state thereto," was held not to be in violation of has power to prohibit contracts limiting liathe equal protection clause of the Fourteenth Amendment. And in Mo. Pacif. R. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 E. Ed. 463, a similar statute was held to be a valid police regulation, as it provided against accident to life and property.