or property tax? Direct or indirect? Aderates upon all alike. There is no distincvalorem or specific? And what classes of tion of persons. Everyone using one horse property are the fittest subjects of taxation? to his vehicle is taxed alike, and so of each -are all questions wisely confided by our class. The tax is uniform as to each subConstitution to the discretion of the legis- ject of the given class." In Rankin v. lative department. . . . But in some Henderson, 9 Ky. L. Rep. 861, 7 S. W. 174, other respects, and so far as the power of it is said: "That the legislature has the taxation may be effectual without being right to classify and impose a license tax thus limited, it is, in our judgment, limited on trades is well settled, and that such a by some of the declared ends and principles tax, when imposed, is not required to apply of the fundamental law. Among these po- to all kinds of business pursuits is equally litical ends and principles, equality, as far certain. Those pursuing like occupations as practicable, and security of property must be taxed in the same manner or in proagainst irresponsible power, are eminently portion to the amount of business conducted. conspicuous in our state Constitution. An We perceive, therefore, no valid objection to exact equalization of the burden of taxation this legislation, as it applies alike to all of is unattainable and Utopian. But still there the classes to be taxed." In Simrall v. Covare well-defined limits within which the prac-ington, 90 Ky. 444, 9 L.R.A. 556, 29 Am. tical equality of the Constitution may be preserved, and which, therefore, should be deemed impassable barriers to legislative power. Taxation may not be universal; but it must be general and uniform. Thus, if a capitation tax be laid, none of the class of persons thus taxed can be constitutionally exempt upon any other ground than that of public service; and, if a tax be laid on land, no appropriation land within the limits of the state can be constitutionally exempted, unless the owner be entitled to such immunity in consequence of public service. The legislature, in the plenitude of its taxing power, cannot have constitutional authority to exact from one citizen, or even one county, the entire revenue for the whole commonwealth. . . . And, although there may be a discrimination in the subjects of taxation, still persons in the same class and property of the same kind must generally be subjected alike to the same common burden. This alone is taxation, according to our notion of constitutional taxation in Kentucky." In Bullitt v. Paducah, 8 Ky. L. Rep. 870, 3 S. W. 802, decided before the present Con stitution, the city was authorized by its charter to collect a license upon certain oc- St. Rep. 398, 14 S. W. 369, where an ordinance imposing a tax upon insurance agents was before the court, it was said: "In this state we have no constitutional provision as to taxation eo nomine; but it is the settled constitutional rule, declared by oft-repeated decisions of this court, that every tax must be certain, universal, and, so far as practicable, equal and uniform. Burdens cannot constitutionally be imposed upon particular individuals, while others of the same class or locality, who have rendered no public service, are exempt." In Schuster v. Louisville, 28 Ky. L. Rep. 588, 89 S. W. 689, it was said: "While the municipal legislature may, under the amendment, classify personal property and levy a tax ad valorem on some personal property, and tax other personal property on the basis of income, licenses, or franchises, the tax must be uniform within the territorial limits of the authority levying the tax; and, under the guise of substituting one method of assessment for another, the burden which shifted so as to throw upon some more of should fall upon all equally must not be the common burden than their proper share.” The authorities we have cited arose in cases involving taxation for municipal purposes; but they illustrate the rule, that is firmly embodied in the principles of constitutional law that have always obtained in this state, that taxation must be uniform and equal as nearly as it is practicable to make it so; and that, although the legislature may single out certain species of property, classes of persons, and trades, occupations, and professions, dealing with each class separately, yet the burden upon every person in the class thus selected must be the same. If it is imposed upon the person, it must be equal and uniform; and so if it is graduated according to the amount of business done. The power to tax according to the volume of business done has been up held by this court in Strater Bros. Tobacco | spect the power of the legislature given to Co. v. Com. 117 Ky. 604,78 S. W. 871; and here it under the section of the Constitution in again the principle of uniformity was applied, the court saying: "We do not think | the tax is lacking in the quality of uniformity. It is the same on each person or corporation which manufactures the same quantity of tobacco. The legislature had the right to impose a graduated license tax. The larger manufacturer is required to pay more than the smaller one, based upon the value of the product manufactured." And so in Brown-Foreman Co. v. Com. 30 Ky. L. Rep. 793, 101 S. W. 321, where the tax was levied upon the volume of business done. question, or to deny to it the right to classify, divide, and select, in any reasonable manner it chooses, trades, occupations, or professions for taxation, or to prevent it from exempting entirely any one or more trades, occupations, or professions, but only to declare that, when any trade, occupation, or profession is selected for taxation, the tax levied upon it, or the license fee exacted from persons engaged in it, must be equal and uniform throughout the state, whether the tax be upon the individual or the business. different classes of property subject to taxation, is a dream unrealized." The nearest attempt to equality in taxation is the income tax, or a tax based upon the amount or volume of business done, or an ad valorem tax upon property, which exacts from everyone the same per cent upon property owned by him. But there should be no two opinions that an act that arbitrarily singles out for taxation a certain class of persons, and exempts some of them altogether, is unfair and unequal. It must be kept in mind that in the consideration of this question we are dealing with a subject that does not fall within the purview of the police power of the state, and is not touched by its comprehensive and yet undefined reach. What we have said has no application to a condition that might arise when this power is invoked as authority for the exaction of a license fee, or the levy of a tax, or the classification or exemption of persons engaged in occupations, pursuits, or business that may fairly and reasonably come within the police power of the state, as places where liquor is sold, or circuses, theaters, or other amusements are carried on. It is everywhere recognized that it is imIn the case before us no account is taken possible to produce exact uniformity of taxof the amount of business done, nor is it ation. Absolute equality is unattainable. pretended that the lack of uniformity and As said by Justice Miller in Taylor v. Secor, equality in the tax imposed was made to de- 92 U. S. 575, 23 L. ed. 663: “Perfect equalpend upon the quantity of business transact-ity and perfect uniformity of taxation, as ed by the real-estate agents taxed. The regards individuals or corporations, or the general assembly, doubtless proceeding upon the idea that the real-estate agents in large cities transacted a larger business than those engaged in smaller cities, imposed a heavier tax upon them; but this tax was not fixed with reference, so far as the act shows, to the amount of business done. It may be, and probably is, true that some real-estate agents in large cities do a larger business than real-estate agents in smaller places; but it does not necessarily follow that there are not real-estate agents in fourth-class cities who do a larger business than real-estate agents in second, or third, or even first, class cities. It might also safely be said that there are many agents who do not live in, or have a place of business in, any city or town, who do a more profitable business than many agents who have their places of business in cities or towns. The vice in the law is that, in undertaking to single out for taxation the occupation of real-estate agents, it not only taxes them in unequal amounts, depending upon the place in the state where they do business, but also exempts entirely other real-estate agents, thus plainly discriminating against real-estate agents who live or have a place of business in a city or town, in favor of those who do not live and have no place of business in a city or town. It is insisted for the state that a license fee or tax imposed for state purposes may be graduated alone by the population of the city or county in which such business may be conducted, or by the fact that the person from whom the fee is exacted resides or does business in one city or another, or in this county or that one; but, as we have endeavored to point out, classification cannot be made on these lines. The purpose of this opinion is not to limit or restrict in any re In considering this case we have not been unmindful that it is everywhere conceded that the power to lay taxes is the highest attribute of sovereignty, the exercise of which is confided alone to the lawmaking department of the government, and that the courts are reluctant to interfere with the discretion vested in the representatives of the people in imposing taxes that are necessary to sustain the government. Especially is this true of a property or ad valorem tax operating equally and upon all property within the territory affected. The amount of tax that shall be thus imposed, if uni notice. special charter exemptions 2. The common-law liability of a railroad company for injury caused by a defective crossing is not affected by a charter provision exempting it from liability unless it has fect, and has received notice of injury withtwenty-four hours' previous notice of the dein fourteen days afterwards; the legislature not being empowered to exempt any particular person or corporation from the operation of a general law, statutory or common. (November 26, 1907.) form and not restrained by constitutional, Same Entertaining the opinion that the act being considered is violative of the Constitution for the reasons stated, the judgment of the lower court so declaring must be af firmed. EPORT by the Supreme Judicial Court for opinion of the full bench of an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Judgment for plaintiff. The facts are stated in the opinion. Messrs. Waterhouse & Crawford for plaintiff. Mr. E. C. Ryder, for defendant: Privileges granted by special acts are not affected by inconsistent general legislation on the same subject. Seaward v. The Vera Cruz, L. R. 10 App. Cas. 68; Walsall v. London & N. W. R. Co. L. R. 4 App. Cas. 467; Furman v. Nichol, 8 Wall. 44, 19 L. ed. 370; South Carolina v. MAINE SUPREME JUDICIAL COURT. Stoll, 17 Wall. 425, 21 L. ed. 650; Louisiana EDWARD J. MILTON V. v. Taylor, 105 U. S. 454, 26 L. ed. 1133; Ex parte Crow Dog (Ex parte Kang-GiShun-Ca) 109 U. S. 556, 27 L. ed. 1030, 3 BANGOR RAILWAY & ELECTRIC COM- Sup. Ct. Rep. 396; Rodgers v. United PANY. Railroads defective crossing liability. 1. The asumption by a railroad company of a charter duty to keep highway crossings in repair creates a liability for failure to do so, and gives a common-law right of action in favor of one damaged thereby. Case Note. · Constitutionality of requirement of notice of defect, or of injuries, as a condition of liability for personal injuries. States, 185 U. S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep. 582; Third Nat. Bank v. Harrison, 3 McCrary, 162, Fed. 721; Gilchrist v. Helena, H. S. & S. R. Co. 47 Fed. 593; Seward County v. Etna L. Ins. Co. 32 C. C. A. 585, 61 U. S. App. 41, 90 Fed. 222; New York, N. H. & H. R. Co. v. Bridgeport Traction Co. 65 Conn. 410, 29 L.R.A. 367, 32 Atl. 953; Capen v. Glover, 4 Mass. 305; Ridgway v. Gallatin County, 181 Ill. 521, the portion of the highway which a street railway company is bound by its charter to keep in repair, as a condition of the liability of such company, is not a denial or unreasonable abridgment of the right of the injured For the reasons suggested in the fore- person to obtain redress for an injury ocgoing opinion, cases dealing with the casioned by a neglect to perform the duty power of the legislature to require imposed upon the company by the charter, notice of the defective condition be- but is simply a restriction, deemed by the fore the injury, or notice of the in- legislature to be reasonable, upon the exerjury before the action, as a condition of the cise of such right, and is within the powliability of a municipal corporation for neger of the legislature. The decision rests ligence in the performance of the duties resting upon it as an agency of the state, have not been included in this note. The decision in MILTON V. BANGOR R. & ELECTRIC Co. is opposed by the case of Shalley v. Danbury & B. Horse R. Co. 64 Conn. 381, 30 Atl. 135, holding that a statute requiring notice of injuries caused by a defect in upon the general ground that the liability imposed by the charter is a substitute for the liability of the municipality, and, being of statutory origin, is subject to such rea sonable restrictions as the legislature may see fit to impose. The only essential difference between the Shalley Case and MILTON V. BANGOR R. & ELECTRIC Co. is that 55 N. E. 146; University of Michigan v. Auditor General, 109 Mich. 134, 66 N. W. 956; State ex rel. Lum v. Archibald, 43 Minn. 328, 45 N. W. 606; State ex rel. Putnam v. Egan, 64 Minn. 331, 67 N. W. 77; Re Central Park, 50 N. Y. 493; Muskingum County v. Board of Public Works, 39 Ohio St. 628; Providence v. Union R. Co. 12 R. I. 473; State ex rel. Gates v. Public Land Comrs. 106 Wis. 584, 82 N. W. 549. in the latter case the statute required previous notice of the defect, as well as notice of the injury, whereas the statute in the former case required only notice of the injury. The principle upon which the Shalley Case was decided, however, would seem to be equally applicable to either requirement. In Lambert v. Winchester Ave. R. Co. 76 Fed. 348, a Connecticut statute providing that no action for damages on account of injury to, or death of, any person, caused by negligence, shall be maintained against any electric, cable, horse, or steam railroad company, unless written notice of a claim therefor, giving a general description of the injury, and the time, place, and cause of its occurrence, shall be given to the company within four months after the neglect complained of; but that notice of any claim for damages occurring prior to the passage of the act may be given within four months after the act takes effect, was held to be neither a denial, nor an abridgment, of plaintiff's right of action, as applied to a cause of action existing prior to the passage of the statute, but only a reasonable restriction upon the exercise of the right. | Emery, Ch. J., delivered the opinion of the court: The Old Town, Orono, & Veazie Railroad Company, incorporated in 1891 by chapter 116, p. 198, Special Laws 1891, received authority to occupy portions of the streets of Old Town with its railroad tracks, etc., but coupled with the duty of keeping and maintaining in repair all such portions and of making all other repairs of such streets which should be renliability in case of injury or death in the territory, without the making and service of an affidavit stating certain prescribed particulars, including the character and extent of the injuries suffered, and the way or manner in which they were caused, was not, as to future causes of action, unconstitutional as depriving persons of property without due process of law. The courts said that, as it was within the province of the legislature to withhold any right of action for injuries occurring after the passage of the act, it perceived no constitutional objections to the validity of a statute which simply imposed conditions upon the right of action. The appellate division of the New York supreme court for the first department, in Gmaehle v. Rosenberg, 83 App. Div. 339, 82 N. Y. Supp. 366, construed the provision of the employers' liability law that no action for recovery of compensation for injury or death under the act shall be maintained unless notice of the time, place, and cause of injury is given to the employer within one hundred and twenty days, as applicable to an action for death due to the failure So, a statute providing that no action for of the master to supply proper scaffolding personal injuries shall be maintained unless or other mechanical contrivances, although notice is given to the person liable therefor the action was based on a breach of a comwithin one year is not, as applied to minors mon-law duty, and not upon the statute; and future causes of action, repugnant to and, as so construed, the statutory provithe 1st section of the 14th Amendment, nor sion was held not to be in violation of the to the provision of the Wisconsin Constitu- constitutional provision that the right of tion that every person is entitled to a rem- action now existing to recover damages for edy for the injuries or wrongs he may re-injuries resulting in death shall not be subceive to his person, property, or character.ject to any statutory limitation, since the Hoffmann v. Milwaukee Electric R. & Light provision does not take away the right of Co. 127 Wis. 76, 106 N. W. 808. The de-action, nor abrogate it, but is in the nacision is upon the ground that the statute is ture of a statute of limitations, which mereone of limitation, and that the time allowed ly affects the remedy without destroying the for the giving of the notice is reasonable. right. So, a provision of a municipal charter which requires notice of the time and place of the injury to be given within thirty days as a condition of the liability of a lot own er for injuries caused by defects in the walk is not unconstitutional, as the liability of the lot owner is statutory; nor is such provision, having been enacted prior to the statutory provision requiring uniformity in such charters, void because it does not apply to the state at large, but is limited to abutting lot owners of a particular city. McKibben v. Amory, 89 Wis. 607, 62 N. W. 416. In Sawyer v. El Paso & N. E. R. Co. (Tex. Civ. App.) 108 S. W. 718, the court held that a statute of the territory of New Mexico. declaring that there should be no civil The appellate division of the second department, however, in the case of Rosin v. Lidgerwood Mfg. Co. 89 App. Div. 245, 86 N. Y. Supp. 49, held that the requirement of the statute with reference to notice is applicable only where the plaintiff seeks to enforce a cause of action which did not exist at common law and was conferred by the statute. Woodward, J., who wrote the opinion, and Hooker, J., were of the opinion that, if the requirement as to notice were held to apply to actions arising at common law, it would be unconstitutional as denying the equal protection of the laws in violation of the 14th Amendment to the Federal Constitution. The other three justices concurred in the result, but expressed no.opinion on the latter point. dered them by its railroad. Sections 1 and 2 of the charter. Under this charter, that company constructed its tracks and operated its railroad through various of the streets of Old Town. Its property, franchise, and duty subsequently passed by various conveyances and legislative acts to the defend ant company, which since 1905 has maintained the tracks and operated the railroad through the same and other streets of Old Town. necessary by the occupation of granted by the state to the defendant company a right, a franchise, to occupy portions of the streets, but coupled with the corresponding duty of keeping them in repair. The duty was prescribed for the protection of the traveling public. It was voluntarily assumed along with the right, and with it was assumed the necessary concomi| tant of a common-law liability to any of the traveling public suffering injury through its breach. The assumption of the duty creates the liability and the consequent right of action in favor of those persons for whose protection the duty was prescribed. Veazie v. Penobscot R. Co. 49 Me. 119; Tobin v. Portland, S. & P. R. Co. 59 Me. 183, 8 Am. Rep. 415; Gillett v. Western R. Corp. 8 Allen, 560; Gates v. Pennsylvania R. Co. 150 Pa. 50, 16 L.R.A. 554, 24 Atl. 638. "At common law, whenever a right is conferred and a corresponding duty imposed upon a person or a corporation, it is answerable to a third person who sustains damages by the negligent discharge of such duty." Mann v. Central Vermont R. Co. 55 Vt. 484, 487, 45 Am. Rep. 628. The plaintiff, while traveling in 1906 with his horse and carriage through the streets of Old Town, suffered an injury to his horse and harness through a defect in a crossing over the defendant company's tracks at a junction of two streets, which defect was due to the defendant company's neglect of its duty under its charter. The plaintiff was without fault, and has not been compensated. For defense, the defendant company relies solely upon the following provision in § 3 of the original charter of 1891, viz.: "Said corporation shall be liable for any loss or damage which any person may sustain by reason of any carelessness, neglect, or misconduct of its agents or servants, or by reason of any defect in so much of said streets or roads as is occupied by said railroad, if such defect arises from neglect or misconduct of the corporation, its agents or servants; and, in actions brought against the company to recover damages by reason of such defects, the plaintiff shall have the rights and be subject to the burdens of proof and limitations and conditions provided by the general statutes applicable to suits for such causes against towns as now existing, the directors of said company standing in this respect in place of town of ficers." This principle is affirmed in the case of street railroads, ex majore cautela, by our general statutes, Rev. Stat. chap, 53, § 27: "All street railroad corporations shall be liable for any loss or damage which any person may sustain by reason of any negligence or misconduct of any such corporation, its agents or servants, or by reason of any obstructions or defects in any street or road of any city or town, caused by the negligence of such corporation, its agents or servants." Of course, municipal corporations which act in the care of the streets, as governmental agencies, as trustees for the public, are not within this common-law rule. The distinction and the reasons for it are familiar, and need no new statement. Riddle v. Locks & Canals, 7 Mass. 169, 5 Am. Dec. 35. To maintain a suit for such a cause of action against a town, it must be made to appear that one or more of certain specified The defendant further contends, however, town officers had actual notice of the defect that, if the legislature did not create the twenty-four hours before the injury was re- plaintiff's right of action, it has, by the ceived from it, and, within fourteen days words of the charter quoted above, exempted after the injury, received notice thereof the defendant company from liability for infrom the plaintiff. There being no evidence | juries caused by its negligent performance to the contrary, it must be assumed that of its duty of keeping the streets in reno director of the defendant company had any such notice of the defect or of the injury. The defendant contends that the right of action against it for damages thus caused by it is a creature of the statute cited, and is limited to cases stated in that statute, viz., to cases where a director had the twenty-four hours' previous notice and the subsequent fourteen days' notice. This contention cannot be sustained. The plaintiff has a common-law right of action, independent of the statute. There was pair, unless some one of its directors had twenty-four hours' previous notice of the defect, and received notice of the injury within fourteen days afterwards. To this claim of exemption the answer should be apparent. The people have not conferred upon the legislature the power to exempt any particular person or corporation from the operation of the general law, statutory or common. Holden v. James, 11 Mass. 396, 6 Am. Dec. 174; Simonds v. Simonds, 103 Mass. 572, 4 Am. Rep. 576; Lewis v. Webb, 3 Me. |