It is insisted by the plaintiff that the court went too far in its expressions of opinion upon the evidence bearing upon this issue, and that what was said had practically the effect of taking the case from the jury. It is no longer an open question that a judge of a court of the United States, in submitting a case to the jury, may, in his discretion, express his opinion upon the facts; and that, "when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury," such expression of opinion is not reviewable on writ of error. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 553 [30:257, 258]; St. Louis, I. M. & S. R. Co. v. Vickers, 122 U. S. 360 [30:1161]; U. S. v. Philadelphia & R. R. Co. 123 U. S. 114 [31: 138]. Whether the parties made such an agreement for compensation to the plaintiff as that alleged was the only issue made by the first count of the complaint; and that was a question of fact to be determined by the jury. Their right to determine it was distinctly recognized in that part of the charge which immediately followed the court's expression of opinion as to certain portions of the evidence, namely: "If you can find anything in the evidence to support the conclusion that the defendant made an agreement with plaintiff to pay this commission, and that the property was afterwards purchased by him in pursuance of that agreement, then the plaintiff is entitled to recover; otherwise he is not entitled to recover." In deed, we are not sure but that the court might properly have given a peremptory instruction in favor of the defendant upon this branch of the

He

has denied it or not. Mr. Webber could, if he chose to, by the terms of the agreement, reserve this entire interest to himself—that is, all that was accruing under the lease-if it was his intention to keep it to himself, and there was no agreement of the parties in respect to it; the deed constitutes no agreement. could reserve it to himself, and if he did reserve it to himself, if nothing was said about it at that time, in the absence of any agreement between them that it should go to the plaintiff, then it would go to Webber; and under these circumstances it remained in him up to the time that he made the sale to the defendant in this case. After the agreement of September 26, and some time in October, Nevitt sold, as you remember, through the negotiations of Mr. Judkins, to Mr. Devereux or to the defendant directly,—I don't remember much about that transaction,-and subsequently Mrs. Webber, in a conveyance which she made to the defendant, assumed to convey all right and interest accruing to her under the lease. Upon that point the question is whether there was any agreement between the parties that the plaintiff's right and interest under this deed should become effectual at once upon the execution of the deed, and that he should be entitled to whatever should come under the lease to Webber-that is, to his part of it, th, 5ths, of the whole amount-and if Nevitt was tak ing the whole proceeds of the mine, and I believe he was-at least it seems that he did so, or assumed the right to do so, after the mine became fruitful, and that was only in August, I think, of the same year-there were no proceeds of the mine, nothing that could be divided 2. In reference to the cause of action set out amongst them-among the several partiesin the second count of the complaint, it is until that time, and nothing was in fact divided manifest that the plaintiff bases his right to re- until after this agreement of the 26th of Sepcover upon the agreement alleged to have been tember was made. So that the question must made between him and Henry Webber, at the be whether there was an agreement between time the latter executed the quitclaim deed of the plaintiff and defendant, or between the April 28, 1884, to the effect that plaintiff's in- plaintiff and Webber, that he should be entitled terest would not be subject to the burden of the to these proceeds from the time of the conveylease made by Abbey to Nevitt; of which agree-ance to him; that is a question of fact for your ment, it is further alleged, Julia Webber had knowledge when she purchased from her husband, and defendant had knowledge at the time he purchased from her.

case.

Upon this part of the case the court said to the jury:

Now, the position of the plaintiff is that he comes in under the designation of a grantee or assignee of Webber for one half of the amount reserved to Webber by this agreement -that is, ths; this agreement reserves to Webber 8ths; and the position of the plaintiff is that he must be regarded as an assignee and grantee of Webber, in virtue of his deed of the preceding April for half of that amount which was reserved to Webber. He has brought this suit to recover that. Now, as I said before, in the deed there is nothing about that, and the question is, What was the intention of the parties at the time this deed was made? The plaintiff testifies that it was his intention that he should have the interest accruing under this lease as it went along, and was not to be postponed to the lease. I understand Mr. Webber to deny that proposition. Some comments have occurred between counsel as to the meaning of Mr. Webber's testimony,-whether he

consideration. If you find that there was such an agreement; that the parties understood and intended that Mr. Rucker should be entitled to whatever should arise under the lease according to the proportion and interest conveyed to him by this deed, from and after the time of the deed until the end of the lease,-then my understanding is that he is entitled to recover the sum specified in this stipulation between the parties. They have agreed upon the amount. In the absence of such an agreement, then he is not entitled to recover.'

There was no error in this charge. It contained all that need have been said. It fairly submitted to the jury the question as to the existence or nonexistence of the agreement upon which the plaintiff relied. That the plaintiff did rely upon that agreement is perfectly clear, not only from the complaint, but from his second request for instructions, as follows: "2. The court is asked to instruct the jury that if they believe, from the evidence, that the lease of a portion of the lode, though made nominally to Nevitt, was in fact owned by Mr. Henry Webber, and that the same Webber sold and conveyed a one-twelfth interest to the plaintiff after the making and delivery of the

lease; and if they also believe, from the evidence, that at the time of the execution of the deed from Webber to plaintiff it was mutually agreed between Webber and plaintiff that this one twelfth should be exempt from the operation of said lease,-then plaintiff is entitled to the proceeds of the one twelfth, and upon these facts they should find for the plaintiff to the amount fixed by the stipulation of the parties read to the jury, and interest at the rate of ten per cent per year from August 24, 1885, the date the suit was brought.

The jury having found, under appropriate instructions as to the legal rights of the parties, that there was no such agreement, and the parties having stipulated that nothing was due to the plaintiff if the interest he acquired from Henry Webber was subject to the burden of the Nevitt lease, the judgment is affirmed.

Baltimore & O. R. R. Co. 57 U. S. 16 How. 326 (14:958); Northwestern Fertilizing Co. v. Hyde Park, 3 Biss. 481; Richmond F. & P. R. R. Co. v. Richmond, 96 U. S. 529 (24:737).

The constitutional inhibition includes legislative discrimination against classes as well as against races and individuals.

Civil Rights Cases, 109 U. S. 3 (27:835); Missouri v. Lewis, 101 U. S. 221 (25:989); Cooley, Const. Lim. 4th ed. 449; Missouri Pac. R. Co. v. Humes, 115 U. S. 512 (29: 463); Barbier v. Connolly, 113 U. S. 27 (28: 923); Soon Hing v. Crowley, Id. 703 (28:1145).

The statute of 1874 cannot be sustained as an exercise of the police power.

Missouri Pac. R. Co. v. Haley, 25 Kan. 35; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 40; People v. Jackson & M. Plank Road Co. 9 Mich. 307.

What are reasonable police regulations are purely judicial questions.

1 Rorer, R. R. 563; Chicago & A. R. R. C. v.

MISSOURI PACIFIC RAILWAY COM- People, 67 Ill. 11; Phila. W. & B. R. R. Co. v.

PANY, Plf. in Err,,

D.

PATRICK MACKEY.

(See S. C. Reporters' ed. 205-212.)

Kansas law-liabilities of railroad companies to employees-14th Constitutional Amendment.

1. The law of Kansas making a railroad company liable to an employé for the negligence or mismanagement of other employés or agents of the same company is not in conflict with the Fourteenth Amendment to the Constitution of the United States, in that it deprives the company of its property without due process of law and denies to it the equal protection of the laws.

2. Legislation which is special in its character is not obnoxious to the last clause of the Fourteenth Amendment, if all persons subject to it are treated alike, under similar circumstances and conditions, in respect both of the privileges conferred and the liabilities imposed.

3. Corporations are persons within the meaning of the amendment.

[No. 218.]

Argued April 13, 1888. Decided April 23, 1888.

IN ERROR to the Supreme Court of the

damages to an employee of a railroad company by the negligence of a co-employee of the same company. Affirmed.

The facts are stated in the opinion.

Bowers, 4 Houst. 506; Sloan v. Pacific R. Co. 61
Mo. 24; Ladd v. Southern Cotton Press & M.
Co. 53 Tex. 172.

The police regulations of corporations must be confined to the enforcement of the maxim, sic utere tuo ut alienum non lædas.

Tiedeman, Lim. Police Powers, 584; Cooley, Const. Lim. 715 and note, 719, 724, 725; Thorpe v. Rutland & B. R. R. Co. 27 Vt. 149; 3 Wood, R. Laws, 1703; Pierce, R. R. 465; Munn v. Illinois, 94 U. S. 124, 125 (24:84); Ohio & M. R. Co. v. Lackey,78 Ill. 55; Zeigler v. South & North Ala. R. R. Čo. 58 Ala. 594; Memphis & C. R. R. Co. v. Lyon, 62 Ala. 71; Union Pac. R. Co. v. Harris, 33 Kan. 416; Deppe v. Chicago, R. 1. & P. R. R. Co. 36 Iowa, 55.

The constitutional validity of a law is to be tested, not by what has been done under it, but what may, by its authority, be done.

Stuart v. Palmer, 74 N. Y. 188.

The Act is unconstitutional because it denies the equal protection of the laws, as between companies and individuals operating

railroads.

Louisville, 19 Fed. Rep. 679; Minese; R. Ro.

& N. Co. v. Tennessee

is, 101 U. S. 31 (25:992).

Messrs. Thomas P. Fenlon and John C. Tomlinson, for defendant in error:

The statute of Iowa is almost identical in Messrs. John F. Dillon and Winslow S. terms with the Kansas Statute, and it is held Pierce, Jr., for plaintiff in error:

by the Supreme Court of that State not to be conflict with the Fourteenth Amendment to the Federal Constitution.

The Statute of 1874 operates to deprive rail-in road companies of property without due process of law, and is legislation of an unequal, partial and discriminating character.

Dow v. Kansas Pac. R. Co. 8 Kan.642; Union Pac. R. Co. v. Milliken, Id. 647.

The statute creates a new liability. No such liability is imposed by the State upon any person, individual or corporation, other than railway companies. No such liability exists at common law.

R. R. Tax Cases, 13 Fed. Rep. 733; Re Ah Fong, 3 Sawy. 144, 157.

Corporations are persons within the meaning of such constitutional provisions.

Santa Clara County v. Southern Pac. R. R. Co. 118 U. S. 396 (30:118); Bank of U. S. v. Dereaux, 9 U. S. 5 Cranch, 86 (3:44); Marshall v.

McAunich v. Mississippi & M. R. R. Co. 20 Iowa, 338; Bucklew v. Central Iowa R. Co. 64 Iowa, 603.

The constitutionality of a statute of Missouri was decided in Missouri Pac. R. Co. v. Humes, 115 U. S. 512 (29:463); Barbier v. Connolly, 113 U. S. 27 (28:923); Soon Hing v. Crowley, Id. 703 (28:1145); Atchison, T. & S. F. R. R. Co. v. Koehler, 37 Kan. 463; Missouri Pac. R. Co. v. Haley, 25 Kan. 35; Missouri Pac. R. Co. v. Mackey, 33 Kan. 298.

The constitutionality of an Act of Pennsylvania was decided in Kirby v. Pennsylvania R. R. Co. 76 Pa. 506; Boston, C. & M. R. R. Co. v. State, 32 N. H. 215.

As to the contention of the counsel for

plaintiff in error that the Act of 1874 of Kansas prohibits railroad companies from setting up as a defense contributory negligence on the part of the injured employé, see Quackenbush v. Wisconsin & M. R. R. Co. 62 Wis. 411; Southwestern R. R. Co. v. Paulk, 24 Ga. 356; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120; Thorpe v. Rutland & B. R. R. Co. 27 Vt. 140; State Board of Assessors v. Central R. R. Co. 4 Cent. Rep. 426, 48 N. J. L. 146; Veazie v. Mayo, 49 Me. 156; State v. Wabash, St. L. & P. R. Co. 83 Mo. 144; Ohio & M. R. R. Co. v. McClelland, 25 Ill. 140; Davis v. State, 3 Lea, 376; Commonwealth v. Eastern R. R. Co. 103 Mass. 254; New Albany & S. R. R. Co. v. Tilton, 12 Ind. 3; Cooley, Const. Lim. 5th ed. 482, § 390, p. 717, $581.

This law denies to no person affected by it 'equal protection of the laws." Owensboro & N. R. Co. v. Daviess County, 3 S. W. Rep. 364; Ohio & M. R. R. v. McClelland, 25 Ill. 140.

Mr. Justice Field delivered the opinion of the court:

against such railroad company for an injury received, while in the line of his employment, through the negligence of a fellow servant or employé engaged with him in the same common work of the master or employer, unless such injured servant or employé has himself been guilty of negligence or want of ordinary care which has directly contributed to produce the injury complained of."

To this charge the defendant excepted. The jury found a verdict for the plaintiff for $12,000, upon which judgment was entered. On appeal to the Supreme Court of the State the judgment was affirmed; and to review the latter judgment the case is brought here.

At the trial, and in the Supreme Court of the State, it was contended by the defendant, and the contention is renewed here, that the Law of Kansas of 1874 is in conflict with the 14th Amendment of the Constitution of the United States, in that it deprives the Company of its property without due process of law, and denies to it the equal protection of the laws.

In support of the first position the Company calls the attention of the court to the rule of In 1882, the defendant below, the Missouri law exempting from liability an employer for Pacific Railway Company, a corporation cre- injuries to employés caused by the negligence ated under the laws of Kansas, operated lines or incompetency of a fellow servant, which of railway in the latter State. It also had con- prevailed in Kansas and in several other States trol of two track yards adjacent to the City of previous to the Act of 1874, unless he had emAtchison, designated respectively as the upper ployed such negligent or incompetent servant and lower yard, and it used two switch engines without reasonable inquiry as to his qualificain moving cars from one yard to the other. On tions, or had retained him after knowledge of the 11th of February of that year the plaintiff his negligence or incompetency. The rule of was in the service of the Company as a fire-law is conceded where the person injured, and man on one of these engines employed in trans- the one by whose negligence or incompetency ferring cars from one point to another in the the injury is caused, are fellow servants in the upper yard, when it was run into by the other same common employment, and acting under engine, owing to the negligence of the engineer the same immediate direction. Chicago, M. & of the latter. By the collision the right foot St. P. R. Co. v. Ross, 112 U. S. 377, 389 [28: and leg of the plaintiff were so crushed as to 787, 792]. Assuming that this rule would ap necessitate amputation. For the damages thus ply to the case presented but for the Law of sustained the present action was brought in a Kansas of 1874, the contention of the Company, district court of the State. On the trial the de- as we understand it, is that that law imposes fendant requested the court to instruct the jury, upon railroad companies a liability not prethat if they found from the evidence that the viously existing, in the enforcement of which plaintiff was injured through the carelessness their property may be taken; and thus authorof a fellow servant, he could not recover; izes, in such cases, the taking of property withwhich instruction was refused, and the defend-out due process of law, in violation of the 14th ant excepted. The court charged the jury as follows:

"At the common law a master or employé could not be held liable for an injury sustained by one servant by reason of the mere negligence of a fellow servant engaged in the same common employment, the negligence of the fellow servant not being deemed in such case the negligence of the master; and such was the law of this State up to 1874, but at that time this rule of the common law was abrogated, so far as it related to railroad companies and their employés in this State, by a statute which reads as follows:

"Every railroad company organized or doing business in this State shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés, to any person sustaining such damage.'

"This enactment so far modifies and changes the common law that a servant or employé of a railroad company may maintain an action

Amendment. The plain answer to this contention is that the liability imposed by the law of 1874 arises only for injuries subsequently committed; it has no application to past injuries, and it cannot be successfully contended that the State may not prescribe the liabilities under which corporations created by its laws shall conduct their business in the future, where no limitation is placed upon its power in this respect by their charters. Legislation to this effect is found in the statute books of every State. The hardship or injustice of the Law of Kansas of 1874, if there be any, must be relieved by legislative enactment. The only question for our examination, as the law of 1874 is presented to us in this case, is whether it is in conflict with clauses of the 14th Amendment. The supposed hardship and injustice consist in imputing liability to the Company, where no personal wrong or negligence is chargeable to it or to its directors. But the same hardship and injustice, if there be any, exist when the Company, without any wrong or negligence on its part, is charged for inju