*566

299.

of law is a question which it is unnecessary | varity of relations. Classification is to consider at this time.

Perceiving no error in the record, the judgment in each case must be affirmed. It is so ordered.

the recognition of those relations, and in making it a legislature must be allowed a wide latitude of discretion and judgment. This has been decided many times against contentions based on a variety of facts. I

Mr. Justice Gray did not participate in will content myself by citing the later cases the decision of this case.

Mr. Justice McKenna dissenting: The trust statute of Illinois of 1893 is directed against* combinations in trade made to affect prices of commodities. The court holds that the statute is repugnant to the Constitution of the United States because of the 9th section, which excludes from the operation of the statute "agricultural products or live stock while in the hands of the producer or raiser." In other words, and to present the discriminations of the statute in its application to persons, it punishes as a criminal conspiracy the acts enumerated in § 1, except when they are done by producers and raisers of agricultural products and live stock in respect thereto. The statute also takes away a right of action for the price of the commodities sold. One of the defenses of the plaintiffs in error was based on that provision.

and commenting upon them very briefly. The cases are Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594; Clark v. Kansas City, 176 U. S. 114, 44 L. ed. 392, 20 Sup. Ct. Rep. 284; Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633; Petit v. Minnesota, 177 U. S. 164, 44 L. ed. 716, 20 Sup. Ct. Rep. 666; Williams v. Fears, 179 U. S. 270, 45 L. ed. 186, 21 Sup. Ct. Rep. 128; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 45 L. ed. 102, 21 Sup. Ct. Rep. 43.

In these cases and the cases cited in them classifications were sustained which depended upon differences in the amounts of legacies; on differences between corporations; on differences between land dependent on its use for agriculture and other purposcs in regard to the power of a city to annex it; on differences between fire insurance and other insurance; on the right of a legislature to declare, as a matter of law, that the work of a barber was not a work of necessity, while as to all other kinds of labor the fact was to be determined by a jury; on the difference between hiring persons to labor in the state and hiring persons to labor out of the state; on differences between sugar refiners based entirely and only on the fact of the production or purchase of the sugar refined.

vided, however, that the law should not apply to "planters and farmers grinding and refining their own sugar."

The view of the court is that the legislation is purely discriminative, and is not justified by any legal principle of classification. To sustain the view the rule expressed in Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ot. Rep. 255, is quoted. It was there said: "It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the 14th Amendment, and that in all cases it In American Sugar Ref. Co. v. Louismust appear, not only that a classification iana a license tax was imposed on those has been made, but also that it is one based engaged in carrying on the business of reupon some reasonable ground,- -some differ-fining sugar and molasses. It was proence which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection." Undoubtedly. Without the observance of that principle, Wherein did the Louisiana statute, which there can be no classification at all in any was held constitutional, differ from the Illiproper sense. There will be arbitrary nois statute, which is held to be unconstigrouping-not association of persons or tutional? In the former case the distincthings on account of common properties or tion (in the opinion in the case it is called characters or relations. But differences "discrimination") was between manufacare recognized in classification as well as turers of sugar and growers of it. In the resemblances, and this court has found it case at bar the distinction is between tradnecessary to so state. In Atchison, T. & S. ers in products and growers of them. Isg F. R. Co. v. Matthews, 174 U. S. 96, 43 L. not a parallel obvious? Can the cases be ed. 909, 19 Sup. Ct. Rep. 609, we said: distinguished because one a tax was im"Indeed, the very idea of classification is posed and in the other conduct is regulated that of inequality, so that it goes without or penalized? Indeed, is not the distincsaying that the fact of inequality in notion verbal, each being means to an end? manner determines the matter of constitu- Besides, what justification for the distinctionality." tion is there under the Constitution? None, I submit, can be found in the words of that instrument. Any state legislation which denies the equal protection of the laws is prohibited. The prohibition is independent of form or means. It would be strange, indeed, if the power of a state is limited and confined by the Constitution of the United States, when the state attempts by law to regulate conduct, and is unbounded in its discretion when it imposes

It seems like a contradiction to say that a law having inequality of operation may yet give equality of protection. Viewed rightly, however, the contradiction disappears; indeed, need not even be expressed. There are very few exertions of government which can be made applicable to all persons as such. Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite

899.

taxes; that in one case it may see a differ- the grower of sugar and the buyer of it ence between manufacturers and planters, the exact and only distinction of the Illinois and in the other case may not see a differ- law now held to be void, and yet the Louisence between traders in commodities ac-iana law was sustained as constitutional. quired for the purposes of sale and such property when held by farmers by whose labor they were produced.

The reasoning of the cases is as strong and demonstrative as their instances. We have declared that we could not investigate or condemn the impolicy of a state law, and that this court is not a refuge from the mere injustice and oppression of state legislation. Many of the exercises of government, it has been pointed out, were addressed to persons, not absolutely or abstractly, but according to their relations, and that classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of persons or things. Therefore it has been repeatedly declared that classification is justified, if it is not palpably arbitrary.

I have already adverted to the distinction which may be claimed to exist between taxing laws and regulating laws, but a few words more may be justified. The opinion of the court makes a great deal of the penal provisions of the trust law, and its discriminations are displayed and intensified more by the recitation and effect of those provisions than by the provision upon which the defense of plaintiffs in error was based, that is, the provision (§ 10) which precludes recovery of the price of "any arti cle or commodity sold" by an offender against the statute.

The penal provisions of the statute are not before us for judgment. If they were, and the unconstitutionality of the statute could be attributed to them, they might be construed as separable and be discarded. The cases afford, not only affirmative ex- But, not insisting on that, and considering amples, but also by a negative deduction the comments on those provisions to be illustrate what is legal classification. Mr. more than incidental illustration of the Justice Bradley said in Bell's Gap R. Co. v. character of the statute, it is very clear to Pennsylvania, 134 U. S. 232, 33 L. ed. 892, me that they do not in any way affect the 10 Sup. Ct. Rep. 533: "Clear and hostile power of the state. In other words, the demonstrations against particular persons power of the state cannot be impugned or and classes, especially such as are of un-affected by the sanctions which the state usual character, unknown to the practice of may impose to secure obedience to its comour governments, might be obnoxious to mands or prohibitions. It may be through the constitutional prohibition." That is, a tax or it may be through penalties, and the prohibition upon the states to deny to the question will always be, Is the thing any citizen the equal protection of the which is directed or forbidden within the laws. The thought of Mr. Justice Bradley power of the state? And when a statute was developed and illustrated by Mr. Jus- is assailed as denying the equal protection tice Brown, speaking for this court in of the laws, its equal operation is only inAmerican Sugar Ref. Co. v. Louisiana, and tests of the unconstitutionality of the The principle of classification, therefore, discriminations of a state law were ex-is not different in tax laws than in other pressed, which were as ready as they were laws. That principle, as I have said, necessignificant. Speaking of the Louisiana act, sarily implies discrimination between the which discriminated between refiners of persons composing the class and other persugar, Mr. Justice Brown said: "The act sons. The equality prescribed by the Conin question does undoubtedly discriminate in favor of a certain class of refiners, but this discrimination, if founded upon a reasonable distinction in principle, is valid. Of course, if such discrimination were pure ly arbitrary, oppressive, or capricious [the italics are mine], and made to depend upon differences of color, race, nativity, religious opinions, political affiliations, or other considerations having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes."

volved.

stitution is fulfilled if equality be observed between the members of the class. It is violated if such equality be not observed, and the latter was the case in Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, sub nom. Cotting v. Godard, ante, 30, 22 Sup. Ct. Rep. 30. That case, therefore, does not sustain the ruling now made.

Any further remarks may be only repetition, but the application of the cases to the statute now before us should be pointed out.

The equality of operation which the Constitution requires in state legislation canOf course, the enumeration of some tests not be construed, as we have seen, as dedoes not exclude others, but why the enum-manding an absolute universality of operaeration of the special kind? Did not the tion, having no regard to the different case require it? What ingenuity can find capabilities, conditions, and relations of a difference in the act and process of sugar men. Classification, therefore, is necesrefining when done by a purchaser of raw sugar and a raiser (planter) of it; what difference in the product after it shall be refined, or in any element, thing, or circumstance, which can affect its use or sale. The whole and only distinction in the classes which the statute made was between

sary, but what are its limits? They are not easily defined, but the purview of the legislation should be regarded. A line must not be drawn which includes arbitrarily some persons who do and some persons who do not stand in the same relation to the purpose of the legislation. But a wide

t

692.

*571

latitude of selection must be left to the legislature. It is only a palpable abuse of the power of selection which can be judicially reviewed, and the right of review is so delicate that even in its best exercises it may lead to challenge. At times, indeed, it must be exercised, but should always be exercised in view of the function and necessarily large powers of a legislature.

United States army, required by a contract for constructing a canal, which contains an express provision that the contract "shall be subject to the approval" of such engineer, is a future approval of the contract as written, and cannot be satisfied by the engineer's previous acts, such as his authorization of the acceptance of the contractor's bid, and the furnishing of a blank on which to make the contract.

[No. 98.]

January 14, 1902.
March 10, 1902.

Decided

APPEAL from a judgment of the Court of Claims dismissing a petition by contractors against the United States. Af firmed.

See same case below, 35 Ct. Cl. 199.

Statement by Mr. Justice McKenna: The appellees brought suit against the United States in the court of claims for the sum of $25,485.89, for expenses incurred and for damages. The latter consisted of losses suffered by them by the breach of a contract entered into by the United States through W. S. Marshall, captain in the corps of engineers. The contract was made in pursuance of an advertisement made by the United States, inviting proposals for constructing a canal to be known as the Illinois & Mississippi Canal, upon the terms, conditions, and specifications set forth in an exhibit which was attached to and made a part of the petition.

"What was the purpose of the Illinois statute, and what were the relations of its classes to that purpose? The statute was the expression of the purpose of the state Submitted to suppress combinations to control the prices of commodities, not, however, in the hands of the producers, but in the hands of traders, persons, or corporations. Shall we say that such suppression must be universal or not at all? How can we? What knowledge have we of the condition in Illinois which invoked the legislation, or in what form and extent the evil of combinations to control prices appeared in that state? Indeed, whether such combinations are evils or blessings, or to what extent either, is not a judicial inquiry. If we can assume them to be evil because the statute does so, can we go beyond the statute and determine for ourselves the local conditions and condemn the legislation dependent thereon? But are there not, between the classes which the statute makes, distinctions which the legislature had a right to consider? Of whom are the classes composed? The excluded class is composed of farmers and stockraisers while holding the products or live stock produced or raised by them. The included class is composed of The contract contained the following merchants, traders, manufacturers, all en- clause: "This contract shall be subject to gaged in commercial transactions. That is, approval of the chief of engineers, United one class is composed of persons who are States army." There was no averment that scattered on farms; the other class is com- the contract had been so approved, and the posed of persons congregated in cities and United States demurred. The demurrer towns, not only of natural persons, but of stated: "Not only does the contract itself, corporate organizations. In the differ- a copy of which is attached as above, fail ence of these situations, and in other differ- to show that the same was ever approved ences which will occur to any reflection, by the chief of engineers, U. S. A., but the might not the legislature see difference in testimony in the case fully and conclusively opportunities and powers between the shows, and the same is not denied by the classes in regard to the prohibited acts? claimant, that said contract has never been That differences exist cannot be denied. To approved by the said chief of engineers, U. describe and contrast them might be invidi- S. A., in any manner whatsoever." ous. To consider their effect would take us from legal problems to economic ones, and this demonstrates to my mind how es-ingly." sentially any judgment or action based upon those differences is legislative and cannot be reviewed by the judiciary.

I am therefore constrained to dissent from the judgment of the court.

(184 U. S. 524)

It was prayed that the petition "be quashed and the action be dismissed accord

The action of the court is expressed in the following order: "Allowed in part and judgment for defendants on findings of fact filed."

As a conclusion of law from the findings the court ordered the petition dismissed and a formal judgment was entered accordingly.

SAMUEL MONROE and David M. Richard-35 Ct. Cl. 199. This appeal was then taken.

son, Late Copartners Trading as Monroe & Richardson, Appts.,

v.

UNITED STATES.

The findings of fact are as follows: On or about the 25th of May, 1892, the United States through W. S. Marshall, a captain in its corps of engineers, advertised for proposals for constructing a canal to Public contracts-approval of chief engi- be known as the Illinois & Mississippi Canal. The claimants submitted a bid to do certain parts of the work. The bid was accepted by The approval of the chief of engineers of the Captain Marshall, acting under an authori

neer of army.

ty contained in a letter from the chief of engineers of the United States army.

"On the 20th day of July, 1892, Captain Marshall forwarded to claimants the formal contract annexed to and forming part of the petition, and bonds to be executed within len days thereafter, all which claimants fully executed and returned to the said engineer on the 28th day of July, 1892, which formal contract was duly signed by Captain Marshall. The form of the contract had been prepared by the chief of engineers and forwarded to Captain Marshall for use in such cases.

"Immediately upon receiving notice of the acceptance of their said bid, claimants began preparation for the commencement of said work. They shipped their plant from Portsmouth, Ohio, to Rock Island, Illinois; rented and furnished a boat and had the same taken to Rock river, in the vicinity of the work, to be used as a boarding house for men employed on the work; built stables for their teams; hired men and teams; purchased a large amount of plant, consisting of shovels, plows, scrapers, and the like; and generally equipped themselves in a proper manner to expeditiously perform the work; and commenced the work with men and teams about the 1st day of August, 1892.

"On the 6th day of August, 1892, without fault on their part and while the work was progressing, claimants were stopped by the United States and their contract abrogated against their consent, and the work that they had contracted to do readvertised, for the alleged reason that by the act of August 1, 1892, no work could be prosecuted by the United States without a stipulation in the contract binding the contractor not to permit his workmen to labor more than eight hours per day, and the United States refused to permit claimants to continue the work either under the terms of the contract or under the terms of the law of August 1, 1892, but immediately, and against the protest of claimants, readvertised and let the said work to other parties.

gineers was necessary to the legal consummation of the contract. It is, however, insisted that the approval was not required to be formally expressed, but could and did consist of acts preceding the written instrument, though the latter contained the terms and covenants of the parties. In other words, it is contended that the advertisement, claimant's bid made under competi tion, which was submitted to the chief of engineers, who, after some correspondence with the engineer in Chicago in relation thereto, had in writing directed it to be accepted, the preparation of the formal contract on a blank furnished by the chief of engineers, its execution by both the officer in charge and the claimants, in due form and in strict accordance with the provision of § 3744 of the Revised Statutes, constituted an approval.

We are unable to assent to this view. It is the final written instrument that the statute contemplates shall be executed and signed by the parties, and which shall contain and be the proof of their obligations and rights. And it was such written instrument that was to be approved by the chief of engineers. The approval was to be a future act. The provision of the contract was: "This contract" (that is, the instrument to which the contracting officer and the claimants attached their signatures and seals) "shall be subject to approval of the chief of engineers of the United States army." The approval, therefore, did not consist of something precedent, but was to consist of something subsequent. That which preceded was inducement only, and contemplated an instrument of binding and remedial form, and hence to contain covenants imposing obligations and giving rights and remedies, containing provisions for the time of performance and the manner of it; provisions for changes and for extra work-indeed, of the provisions which prudence and necessity require and those which the statutes of the United States might require. And the final right to see that this was done, the parties agreed, should be devolved on the chief of engineers, and it was not satisfied by prior instructions. In other words, a final reviewing and approving judgment was given to the chief of engin eers, and was given by a covenant so expressed as to constitute a condition prece dent to the taking effect of the contract. If the covenant did not mean that, it was idle. Construed as prospective, it had a natural purpose. The engagement of the parties did not end with the bid and its acceptance. The performance of the work was 7,150 00" to be secured, and the final judgment of what was necessary for that, as we have already said, was to be given by the chief of engineers.

"In the prosecution of said work under said contract, prior to the abrogation there of on August 6, 1892, claimants expended the sum of $678.21, which has not been paid

to them.

"By reason of the abrogation of said contract claimants lost the following sums expended and were deprived of the following profits which they would have made in the execution of said work: Expenses incurred Profits if they had been permitted to perform...

$678 21

Mr. John C. Fay for appellants. Assistant Attorney General Pradt and Mr. Franklin W. Collins for appellee.

Mr. Justice McKenna delivered the opinion of the court:

We agree with counsel that the question in the case is a narrow one. It is not denied that the approval of the chief of en

The case of United States v. Speed, 8 Wall. 78, 19 L. ed. 449, cited by appellant, is not apposite. In that case the facts were that the Secretary of War, through the Commissary General, "authorized Major Simonds, at Louisville, in October, 1864, and during the late Rebellion, to buy hogs

*529

and enter into contracts for slaughtering hours per day." It may be assumed that and packing them to furnish pork for the the chief of engineers considered that the army. On the 27th of October, Simonds, contract took effect by his approval, and for the United States, and Speed, made a that if he approved it he would incur the contract by which the live hogs, the cooper- penalties of the statute. But, however that age, salt, and other necessary materials, may be, the reasons for his action is not were to be delivered to Speed by the United open to our inquiry. The contract was not States, and he was to do the work of approved, and how can the legal consequence slaughtering and packing. The contract of that be escaped? We could not have was agreed to be subject to the approval of compelled the approval of the contract, and the Commissary General of Subsistence. No we cannot treat it as approved, and adjudge advertisements for bids or proposals were rights as upon the performance of a condiput out before making the contract, nor did tion which was not performed. the contract contain a provision that it should terminate at such times as the Commissary General should direct. After the contract was made, Simonds wrote-as the facts were found under the rules, by the "The contract bears date the 19th July, court of claims, to be to the Commissary 1892. It provides in terms that the conGeneral, informing him substantially of its tractors 'shall commence work on or before terms; but no copy of it nor the contract the 1st day of August, 1892,' but it appears itself was presented to the Commissary by evidence aliunde that the instrument General for formal approval. The Commis- was not mailed to the contractors for signasary General thereupon wrote to Simonds, expressing his satisfaction at the progress made, and adding: The whole subject of porkpacking at Louisville is placed subject to your direction under the advice of Colonel Kilburn.'"

After reciting those facts this court said by Mr. Justice Miller: "We are of the opinion that, taking all this together, it is a finding by the court as a question of fact that the contract was approved by that of ficer; and inasmuch as neither the instrument itself nor any rule of law prescribes the mode in which this approval shall be evidenced, that a jury would have been justified in finding as the court did."

In United States v. Speed, therefore, the acts which were held to constitute an approval of the contract relied upon were subsequent to the contract, and referred to it. In the case at bar it is stated in the opinion of the court of claims that after the contract was signed it was mailed "to the chief of engineers in Washington for his approval," and that "it was immediately disapproved and returned to the officer (engineer in charge at Chicago) with instructions to readvertise the work."

The declaration, in the opinion of the court of claims, that the contract was disapproved, is asserted to be incorrect by claimants, and the findings are quoted to show that the contract was abrogated, not disapproved. That is undoubtedly the expression of the finding, but its meaning is manifest. An order to the officer in charge to abrogate the contract was certainly a very definite and unmistakable disapproval of it. At any rate, there was no approval of it, and that was a necessary condition to its final effect and obligation.

It is further urged that the terms of the contract were not disapproved, and that the action of the chief of engineers was "for the alleged reason that by the act of August 1, 1892, no work could be prosecuted by the United States without a stipulation in the contract binding the contractor not to permit his workmen to labor more than eight

This case has some features of hardship. They are, however, explained and somewhat lessened by the facts stated in the opinion of the court of claims. It is there stated:

ture until the 20th July, 1892; that it was returned for corrections; that it was not finally mailed for signature until the 27th of July, 1892, and that it was not signed by the contractors until some day between the 27th of July and the 1st of August, 1892. On the faith of the agreement executed by the contracting officer, but without his knowledge or direction, the contractors proceeded to make ready for their work and, indeed, performed, to some extent, incurring thereby a loss of $678.21."

And, further, that "the work was done without the knowledge or direction of the officer in charge, and no benefit resulted thereby to the defendants" (United States). Judgment affirmed.

(184 U. S. 530)

MISSOURI, KANSAS, & TEXAS RAIL
WAY COMPANY, Plff. in Err.,

V.

JOHN S. ELLIOTT.

Appeal-highest state court to which writ of error may issue-injunction bond-allowance of attorneys' fees-rule of Federal courts.

1.

2.

3.

4.

The actual decision of a Federal question In denying a rehearing is sufficient to give jurisdiction on writ of error to a state court from the Supreme Court of the United States, although an attempt to raise that question for the first time on motion for rehearing is usually too late.

The fact that a state court, in deciding a Federal question, erroneously declares that no Federal question exists, does not preclude a review of its decision on writ of error from the United States Supreme Court.

The Kansas city court of appeals is the court to which a writ of error will be issued by the Supreme Court of the United States to review a Federal question decided by it, when the supreme court of the state has decided that it cannot review the decision. Attorneys' fees cannot be allowed as damages on an injunction bond given in a Federal court.