Georgia Southern & Florida Railway Co. v. Adkins
120 S.E. 610
Ga.
1923
Check Treatment
Gilbert, J.

1. As will be seen from the statement of the ease, the action is based on section 2782 of the Civil Code of 1910, which is a codification of the act approved August 16, 1909 (G?.. Laws 1909, p. 160). This act fixes the liability of common carriers by railroad to their employees. An employee is alleged to have been killed by an intrastate railroad-train of the company by which he was employed. The plaintiff brought suit as administrator of the estate of the employee, for the benefit of the “next of kin dependent upon' such employee.” The act provides for a recovery, where the railroad is liable in case of death of the employee, by the personal representative for the benefit of the surviving “widow or husband, or child, or children of such employee, and if none, then of such employee’s parents, and if none, then of the next of loin dependent upon such employee.” That portion of the statute which we have italicized is attacked in the demurrers as being unconstitutional because in conflict with the fourteenth amendment to the constitution of the United States. Civil Code (1910), § 6700. The ground of demurrer is that the portion of the act which creates a cause of action in favor of the personal representative of a deceased employee of a railway, whose death is caused by the wrongful act of the railway, is unconstitutional, because it violates the fourteenth amendment to the Federal constitution, in that it denies to defendant, as a common carrier by railroad, due process of law and equal protection by the law, because said act affords to the next of kin dependent upon an employee of a common carrier by railroad the right of action for the death of such employee caused by the wrongful act of a carrier by railroad, while there is no provision of law for such beneficiary in case of death by wrongful act of any other employers save those of common carriers by railroad. The fourteenth amendment to the constitution of the United States, in so far as pertinent, is as follows: “No State shall make or enforce any law which 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 *830the laws.” ' Corporations are persons, within the meaning of this' amendment. See 11 Fed. Stat. Ann. 636, and numerous authorities cited; 6 R. C. L. 413, § 409 and authorities in note 18. It is settled that “The legislature has power to make reasonable classifications of subjects of legislation. But it has no power to make arbitrary discriminations in favor of certain persons or corporations, as against others in like circumstances.” Leonard v. American Life & Annuity Co., 139 Ga. 277 (77 S. E. 41).

The Supreme Court of the 'United States has held that classification “ must always rest upon some difference which bears a reason-' able and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without such basis . . arbitrary selection can never be justified by calling it classification. . . The equal protection demanded by the fourteenth amendment forbids this.” See Leonard v. American Life & Annuity Co., supra; Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. 357, 28 L. ed. 923); Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560 (22 Sup. Ct. 431, 46 L. ed. 679); Gulf &c. Ry. v. Ellis, 165 U. S. 150, 155, 160, 165 (17 Sup. Ct. 255, 41 L. ed. 666). In Arthur v. State, 146 Ga. 827 (92 S. E. 637), it was said: “ Equal protection of the laws ’ means equal security under them to every one, under similar terms, in his life, his . . property, and in the pursuit of happiness, and exemption from- any greater burdens and charges than such as are equally imposed upon all others under like circumstances. Hence, a statute bearing alike on individuals of each class, or on all districts in like- conditions, does not deny the equal protection of the laws; but such classification must not be arbitrary and without reasonable grounds on which it may be based'.” By reference to section 4424 of the Civil Code of 1910, it will be observed that no cause of action lies against employers generally in favor of the next of kin of employees for a wrongful injury or death resulting from the negligence of the employer. The defendant insists that a common carrier by railroad cannot be singled out and made a class separate from all other employers and made liable in such cases for the benefit of “ the next of kin.” It is insisted that such a classification is arbitrary, and does not rest upon any difference which bears a reasonable and just relation to the act in respect to which the classification is proposed. Counsel for defendant does not controvert, but freely admits, the *831right to make classifications, and further admits that under the decisions of the courts of this State and of the United States railroads may be constitutionally classified in the matter of abrogating the common-law rule as to injuries resulting from the negligence of a fellow servant. It is admitted that this classification rests upon a sound basis. On the other hand it is insisted that the creation by statute of a liability in favor of the “ next of kin ” bears no reasonable or logical relation to the subject-matter of the homicide by negligence, and therefore that such a classification is not permitted under the fourteenth amendment to the constitution of the United States.

In determining the question raised by the demurrer, as above stated, we proceed on the theory that certain principles involved are settled. “ 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 the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in- practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.

4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (31 Sup. Ct. 337, 55 L. ed. 369, Ann. Cas. 1912C, 160). In this case the defendant company has not carried the burden imposed upon it of showing that the classification does not rest upon a reasonable basis, nor has it shown that the classification bears no reasonable or logical relation to the subject-matter affected by the legislation, to wit, the imposition of a liability for a wrongful homicide by a common carrier by rail for the benefit of the next of kin. The primary object of the statute is to make railroad companies liable for negligent injuries and homicides on account of the hazards of their business. The character of the *832business would justify a classification making these companies alone liable for negligent homicides. The disposition of the damages recoverable, and provision for the payment to the “next of kin” of the employees killed, would not make such classification unreasonable or arbitrary because in other classes of homicide a different disposition of damages is provided.

Common carriers are subject to police regulation; and “while the police power is not unlimited, it does include provisions, in pursuance of the public policy of the State, against such a corporation,” and a statute fixing a liability as stated above is reasonable, and does not deny equal protection of the law because it does not apply to negligent homicides committed by other persons and corporations. Western Union Telegraph Co. v. Commercial Milling Co., 218 U. S. 406, 410 (31 Sup. Ct. 59, 54 L. ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815). That case involved the validity of a statute placing telegraph companies in a class as to limiting liability for negligence not shared with any other person or corporation. The ruling upholding the statute was approved in International Harvester Co. v. Missouri, 234 U. S. 199, 214 (34 Sup. Ct. 859, 58 L. ed. 1276, 52 L. R. A. (N. S.) 525), by unanimous decision of the Supreme Court. We think the principles ruled in the last-mentioned cases applicable to this case. The classification does not appear to be without a reasonable basis, to wit, the compensation of the next of kin dependent upon the deceased employee for wrongful homicide of employees of common carriers by railroad. Such employees are engaged in an occupation indisputably hazardous. Georgia R. Co. v. Miller, 90 Ga. 571 (16 S. E. 939); and see Thompson v. Central R. Co., 54 Ga. 509; Augusta &c. R. Co. v. Randall, 79 Ga. 304 (4 S. E. 674). The decision is not based on any argument that the police power of the State is unlimited. On the contrary we freely subscribe to what was said by the Supreme Court in Connolly v. Union Sewer Pipe Co., supra: “ The constitution of the United States is the supreme law of the land, anything in the constitution or statutes of the States to the contrary notwithstanding. A statute of a State, even when avowedly enacted in the exercise of its police powers, must yield to that law. No right granted or secured by the constitution of the United States can be impaired or destroyed by a state enactment, whatever may be the source from which the power, to pass such *833enactment may have been derived. . . ■. The State has undoubtedly the power, by appropriate legislation, to protect the public morals, the public health, and the public safety, but if, by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void.” Atchison &c. R. Co. v. Vosberg, 238 U. S. 56 (35 Sup. Ct. 675, L. R. A. 1915E, 953). Finally it should be remembered that we are dealing with the power of the General Assembly, and not the policy that should be pursued. Questions of public policy are exclusively within the province of the General Assembly, and not the courts.

2. The remaining grounds of the demurrer are dealt with in the headnotes, which do not require elaboration.

Judgment affirmed.

All the Justices concur.