Quong Wing v. Kirkendall, 101 P. 250

Quong Wing v. Kirkendall

101 P. 250 | Mont. | 1909

MR. JUSTICE SMITH

delivered the opinion of the court.

Plaintiff brought this action in the district court of Lewis and Clark county to recover the sum of $10, which was exacted of him by the defendant as treasurer of that county. The complaint alleges: That plaintiff is engaged in what may be termed the hand laundry business; that there are steam laundries in operation in the county, the proprietors of which are not required to pay a license; that there is no difference between the plaintiff’s business and that of a steam laundry, “except that the plaintiff employs different agencies in the said business; that' is to say, this plaintiff uses only hand power for *67the propulsion and operation of the implements and appliances used in his business, while said (other) persons usé steam power * * * and employ both males and females in said laundry business”; that in addition' to the steam laundries there are women engaged in the laundry business in the county “where not more than two women are engaged or employed or kept at work,” which business is the same as that of the plaintiff; that said women are not required to pay any money for the privilege of carrying on said business; that said license was demanded by the defendant treasurer by virtue of section 2776, Revised Codes, and was collected solely for the purpose of defraying the general governmental expenses of Lewis and Clark county and the state of Montana; that section 2776, Revised Codes, is the only law On the statute books requiring the payment of a license for the privilege of conducting the laundry business. The section referred to reads.as follows: “Every person engaged in laundry business, other than the steam laundry business shall pay a license of Ten Dollars per quarter, provided that this Act shall not apply to the women engaged in the laundry business, where not more than two women are engaged or employed or kept at work, and said license shall be for one place of business only.” The district court overruled a general demurrer to the complaint, and afterward, in default of an answer, entered judgment in favor of the plaintiff. From that judgment the defendant treasurer has appealed. It is claimed by the plaintiff that he is denied the equal protection of the laws guaranteed him by the Constitution of the United States.

1. Let us first assume, for the purposes of this inquiry, without deciding, that section 2776 classifies those engaged in the laundry business. This question was expressly reserved in State ex rel. Sam Toi v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415. We assume, also, that this license tax is imposed for the sole purpose of raising revenue for general governmental purposes. It is so alleged in the complaint, and the court had little doubt of the fact when the opinion in State ex rel. Sam Toi v. French, supra, was prepared, under a somewhat similar statute.

*68We may not declare this Act unconstitutional unless it is clearly so. (State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 44 Pac. 516, 32 L. R. A. 635; State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940.) The legislature is presumed to have exercised a reasonable discretion in making the classification, and the courts ought not to interfere with the action of this co-ordinate branch of the government, until the plaintiff, upon whom rests the burden of proof, clearly shows that he is denied the equal protection of the laws. (State v. McKinney, 29 Mont. 375, 74 Pac. 1095.) Every intendment is in favor of the validity of the legislative action. In other words, the classification is presumed to be reasonable. (See City of Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509; Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85, and Littlefield v. State, 42 Neb. 223, 47 Am. St. Rep. 697, 60 N. W. 724, 28 L. R. A. 588, where somewhat analogous presumptions were considered.) If on the face of the measure the classification appears to be arbitrary and unreasonable, or unjust, or no classification at all, a different question is presented. Even assuming that section 2776, Revised Codes, classifies laundries, we are not disposed to hold that the classification made is manifestly arbitrary or unreasonable. It certainly, is not obviously so on the face of it. If such .classification is made, then steam laundries are placed in one class and hand laundries in another. We do not regard the exemption of women from the operation of the statute, in certain cases, as amounting to a classification, for the reasons hereinafter stated. The fact that both steam laundries and hand laundries obtain the same results is not controlling. For aught we know there may be good and sufficient reasons for believing that the difference between the two classes, based upon the power employed in conducting the business, is fundamental and all-pervading. We cannot say that this classification is any more arbitrary or unwarrantable than would be a division'of gas-lighting plants and electric-lighting plants into two classes. Assuming that it might appear to the members of this court that steam laundries should pay a larger *69license fee than hand laundries, would the court be justified in declaring a statute unconstitutional which exacted the same fee from both? Or suppose the matter were reversed, and the legislature should provide that only steam laundries must pay a license, could it then be successfully contended that persons engaged in that business were discriminated against and denied the equal protection of the laws? We do not think so. The legislature probably had some good reason for exempting steam laundry proprietors from the payment of license, either permanently, or for the time being. In the case of East St. Louis v. Wehrung, 46 Ill. 392, it was held that an ordinance which did not “discriminate as between persons having equal facilities for profit” was not objectionable. (See, also, Tulloss v. City of Sedan, 31 Kan. 165, 1 Pac. 285; City of Cherokee v. Fox, 34 Kan. 16, 7 Pac. 625.) The supreme court of the United States, in Magoun v. Illinois T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037, said: “There is no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities; and necessarily so. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. ’ ’ (See, also, Clark v. Titusville, 184 U. S. 329, 22 Sup. Ct. 382, 46 L. Ed. 569.)

But we doubt whether this statute attempts to classify laundries. The -Constitution gives the power to impose a license tax upon persons doing business in. this state. (Section 1, Article XII, Constitution.) The legislature is not required to tax all occupations equally or uniformly. (State ex rel. Sam Toi v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415.) Therefore, it appears to follow that the legislature has power to single out the proprietors of hand laundries and compel them to pay a license, and if such license falls upon all hand laundry proprietors alike, no one of them is aggrieved. No suggestion is made that this law is not uniform as to all hand laundry proprietors, either on its face or in its application, except in so far as it exempts certain women, and in all other respects it *70appears to us to be uniform and reasonable. “If the constituents of each class are affected alike, the rule of equality prescribed by the cases is satisfied. In other words, the law ‘operates equally and uniformly upon all persons in similar circumstances.’ ” (Magoun v. Illinois T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037.) The supreme court of Louisiana, in Kaliski v. Grady, 25 La. Ann. 576, said: “It is contended that the (law) is unconstitutional because it levies a tax of $85 on persons dealing in distilled liquor or retailing spirituous liquors on land, while a tax of only $50 is levied on persons following a like occupation on steamboats, although they may only ply within the limits of a single parish of the state. We fail to see the force of this proposition. The same amount of tax is levied upon all persons pursuing a certain traffic in a certain way, and we do not see how there can be any unjust discrimination in this.”

2. It is contended that the law is invalid because one or two women engaged in the laundry business are not required to pay a license. This provision furnishes no just cause for complaint on the part of the plaintiff. We all know that in every community are to be found women, who, through'misfortune, are obliged, as the common expression is, to take in washing for a living. Some are widows, some have been abandoned, others are caring for invalid husbands, and all, generally, have small children to support. Probably a bare living is all that is gained by them. Such women do not compete with those laundries which are operated for profit, any more than do those who, from necessity or choice, perform the'laundry work for one private family. They, are not to be classed with men who are engaged in the business of conducting public laundries. The legislature in its wisdom has seen fit to say to them: “So long as you do not compete with the public laundries, you need pay no license; but in case you manifest an intention to enter into competition by employing additional help, you must thereafter pay the same fee as do men who are likewise engaged.” In thus enacting, the legislature but followed the natural dictates of humanity, *71and seems to have been actuated by sentiments altogether praiseworthy and commendable.

Mr. Justice Brewer, of the supreme court of the United States, has said this: “History discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened, and her opportunities for acquiring knowledge are great, yet even with that, and the consequent increase of capacity for business affairs, it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained.' It is impossible to close one’s eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to pro*72tect her from the greed as well as the passion of men. * # * Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights; and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is.designed to compensate for some of the burdens which rest upon her.” (Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551.) On such high authority we are content to rest our opinion on this branch of the case.

Rehearing denied, May 22, 1909.

The judgment of the district court of Lewis and Clark county is reversed, and the cause is remanded, with directions to vacate the order overruling the defendant’s demurrer to the complaint, and to enter, in lieu thereof, an order sustaining the same. .

Reversed and remanded.

Mr. Chief Justice Brantlt and Mr. Justice Holloway concur.

Appeal taken to supreme court of the United States, August 21, 1909.