March 24, 1902. The opinion of the Court was delivered by This action was instituted in a magistrate's court, and carried thence by appeal to the Court of Common Pleas, and from the judgment of the last mentioned Court this appeal has been taken. The object of the action was to recover the penalty imposed by the second section of an act entitled "An act to require all common carriers to pay all loss of, or damage for loss, damage and breakage of any article shipped over their lines, or to refuse to do so within a certain time," approved 25th February, 1897, 22 Stat., 443. The pleadings in the case were more formal than is usual in a magistrate's court, the plaintiff having filed a regular complaint setting forth his cause of action, to which the defendant filed a formal answer setting up two defenses; the latter being that the act of 1897, upon which the plaintiff's action was based, is unconstitutional for two reasons, which are thus stated in the answer: "First, on the ground that it discriminates against common carriers and imposes a penalty upon them for failure to pay claims which is not imposed upon any other citizen of this State.Second, on the ground that it cannot apply to interstate commerce." The case was heard by the magistrate, who rendered *Page 176 judgment in favor of the plaintiff without in any way alluding to the constitutional question presented by the answer. From this judgment defendant appealed to the Circuit Court upon the two grounds set out in the "Case," the two grounds upon which the first exception is based being identical with those stated in the answer, and the second ground of appeal, which is not involved in this appeal, need not be stated here. The Circuit Judge rendered judgment dismissing the appeal and affirming the judgment of the magistrate, and from such judgment of the Circuit Court this appeal has been taken upon the several exceptions set out in the record. The judgment of the Circuit Judge as it appears in the "Case" (except so much thereof as relates to the second exception to the magistrate judgment), together with the exceptions thereto, will be embraced in the report of this case by the Reporter.
It is not very clear from the terms used in the judgment of the Circuit Judge whether he simply held that the constitutional question had not been properly raised, or whether he held that the act in question (1897) was constitutional. We must, therefore, consider the matter in both aspects. If he simply held that the constitutional question was not properly raised and could not, therefore, be considered, then we think he erred in so holding; but whether this was reversible or harmless error, will be presently considered. The Circuit Judge seemed to think that because the defendant, neither in its answer nor in its exceptions to the judgment of the magistrate, designated neither the article nor section of the Constitution with which the act of 1897 was claimed to conflict, although the constitutionalprovision with which the act was claimed to conflict — the clause prohibiting discrimination in legislation — was distinctly specified both in the answer and in the exceptions, the question of the constitutionality of the act was not properly presented. This was, we think, too narrow a view of the matter, especially when applied to pleadings and proceedings in an inferior court, where, as is well known, the *Page 177 same strictness is not required as in a court of general jurisdiction. Indeed, even in a court of general jurisdiction it is not always necessary to specify what particular section of what particular article of the Constitution is violated by the terms of a given act of the legislature. Suppose, for example, a party is desirous of assailing the constitutionality of an act upon the ground that it impairs the obligation of a contract and should so allege, without specifying the particular section of the particular article of the Constitution which forbids the passage of any law impairing the obligations of a contract, could it, for a moment, be successfully contended that in each case the constitutional question had not been properly raised and need not, therefore, be considered? No case has been cited and, so far as we are informed, can be cited, which holds that in order to raise the question of the constitutionality of an act of the legislature, it is necessary to specify the section and the article of the Constitution with which such act is claimed to conflict. On the contrary, where the constitutional provision with which such act is claimed to conflict (as it is here) is plainly specified, that is sufficient. The case of Tompkins v. Railroad Company,21 S.C. 420, cited by counsel for respondent, is obviously not in point; for at page 432, the Court said that the constitutionality of the act there sought to be impeached was raised for the first time in the argument before the Supreme Court. "But inasmuch as no such question was raised in the Circuit Court or by any of the exceptions, it is not properly before us for consideration. That case, therefore, lends no support to the position taken by the Circuit Judge; for here the constitutional question was raised in the answer of the defendant, and it was the duty of the magistrate to pass upon it; and although he does not appear to have done so, in terms, yet it must be assumed that if the question was properly raised, as we have seen it was, he did not hold the act unconstitutional; for if he had, he could not have rendered the judgment he did, for if the act was unconstitutional, it was a nullity, and afforded no basis for the plaintiff's cause *Page 178 of action. The question was again raised by the exceptions to the magistrate's judgment, and it was the duty of the Circuit Judge to pass upon it, and it must be assumed that he held the act to be free from any constitutional infirmity. Then, again, the question is again most specifically and plainly presented by the several exceptions to the judgment of the Circuit Judge, imputing error to him in not holding the act of 1897 to be in violation of certain specified sections and articles both in the Constitution of the United States and of this State. So that even if there was error on the part of the Circuit Judge in holding that the constitutional question was not properly raised, and if at the same time it should be ascertained that the act of 1897 is free from any constitutional infirmity, then such error on the part of the Circuit Judge becomes harmless, and is not reversible error.
This brings us to the consideration of what is the real question in this case, viz: Whether the act of 1897 is in conflict with the provisions of the Constitution either of this State or that of the United States. The provisions with which the act is claimed to be in conflict, is that contained in sec. 1, of art. XIV., of the Constitution of the United States, and that contained in sec. 5, of art. I., of the Constitution of this State. As these provisions are practically identical, both prohibiting the denial to any person the equal protection of the laws, these two constitutional provisions need not be considered separately. The argument is, as we understand it, that by the provisions in the act of 1897 subjecting common carriers to a penalty for not paying or refusing to pay a claim for any loss of, or damage to, any article entrusted to them for transportation within sixty days from the time when such claims shall be made, the act comes in conflict with the constitutional provision above referred to, and thus, it is contended, discriminates against common carriers, by subjecting them to a liability not imposed upon any other person, or any other class of persons, and thus denying them the equal protection of the *Page 179 laws. It is quite true, that the act of 1897, above referred to (a copy of which is set out in the judgment of the Circuit Court, which is embraced in the report of this case, and, therefore, need not be repeated here), applies only to persons or corporations engaged in the business of common carriers, and has no application to any other person or class of persons; but this does not necessarily bring the act into conflict either with the constitutional provision of this State or that of the United States, as has been held by this Court inMcCandless v. Railroad Co., 38 S.C. 103, and Blum v.Richland County, 38 S.C. 291, and by the Supreme Court of the United States in the cases cited by Mr. Justice Brewer in the case of Gulf, Colorado Santa Fe Railway Company, v. Ellis, 165 U.S., at page 155. These cases establish the doctrine that while the object of these constitutional provisions, both Federal and State, is to prevent discrimatory legislation, yet they cannot be so construed as to deprive the law-making department of the government of the power to make a classification of its citizens; so that laws may be passed which, if applicable alike to all persons, natural or artificial, belonging to a given class, are not violative of the provisions of the Constitution forbidding a denial to any person of the equal protection of the laws. As is said by Mr. Justice Brewer, in delivering the opinion of the Court in Gulf, Colorado and Santa Fe Railway Co. v. Ellis, at the page above cited, "But it is said that it is not within the scope of the fourteenth amendment to withhold from States the power of classification, and that if the law deals alike with all of a certain class, it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undoubtedly true (citing numerous cases), yet it is equally true, that such classification cannot be made arbitrarily. The State may not say that all white men shall be subjected to the payment of the attorneys' fees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are *Page 180 distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis." The classification made by the act of 1897, the validity of which is here questioned, is that of common carriers, and the provisions of the statute apply alike to every person, natural or artificial, engaged in the business of a common carrier. If, therefore, this is not an arbitrary classification, but rests upon distinctive differences between the business of a common carrier and that of any other class of persons, then the fact that the provisions of the act apply alone to one class of persons, common carriers, will not render the act obnoxious to the constitutional provisions above referred to. That there are well marked distinctions between the kind of business carried on by a common carrier and that of any other class of business, is manifest and has always been recognized. As is said by the late Judge Cooley, in his valuable work on Constitutional Limitations, at page 390 of the 2d edition, "The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties and capacities of citizens" — and the distinguished author proceeds to give common carriers as one of the instances in which this may be done. In addition to this, it will be observed that the default for which the penalty is imposed is, not in failing to pay a debt, but in failing to pay, or refusing to pay, a claim of a character peculiar to common carriers, to wit: a claim for the loss of or damage to articles shipped over the lines of such common carrier. It was, therefore, not a debt of any character which might be contracted by any one, but it was a liability of such a character as none but a common carrier would be likely to incur. The case of Gulf, Colorado Santa Fe Railway Company, 165 U.S. 150, from which we have quoted above, seems to be largely, if not mainly, relied upon by counsel for appellant to sustain his contention *Page 181 that the act of 1897 is unconstitutional. We think, however, that this case differs widely from that; for here the act of 1897 applies to all common carriers, while in the case cited, the Texas statute, which was there under consideration, did not apply to all common carriers, but was limited in its application to one subdivision of the class known as common carriers, to wit: railway corporations. Again, the Texas act applied to any claim made "for personal service rendered or labor done, or for damages, or for overcharges on freight, or claims for stock killed or injured by the train of any railway company," c., and was not limited to such claims as were peculiarly incident to the business of a common carrier, as in the case of our act of 1897. This is quite sufficient to differentiate that case from this. We are of opinion that our act of 1897 was passed, not for the purpose of enforcing more speedy payment of claims against common carriers, but for the purpose of enforcing more prompt action on the part of common carriers in passing upon the validity of claims presented against them, and that the time allowed by the act — sixty days — after presentation of any claim, is reasonable and sufficient to afford an opportunity to investigate the propriety and legality of the claims; and that though the provisions of the act are applicable only to claims of a certain specified character against common carriers, and do not apply to any other class of persons, yet that does not bring the act in conflict with any constitutional provision, either State or Federal, and hence the Circuit Judge could not have properly held the act of 1897 to be unconstitutional; and the exceptions raising this point must be overruled.
It only remains to consider the appellant's third exception, which imputes error to the Circuit Judge in not holding that the act of 1897 has no application to interstate shipments of freight by common carriers. In the first place, we are unable to perceive anything in the record before us showing that this was an interstate shipment of freight. On the contrary, the allegation in the complaint is that the defendant *Page 182 company did. "on the 18th day of December, 1900, receive a certain lot of plows in the city of Charleston, S.C. consigned to above named plaintiff, at Ridgeland, S.C. and that the plows were damaged in transit." But even if it had appeared to have been an interstate shipment, we do not see wherein our act of 1897 conflicts with the interstate commerce clause of the Constitution of the United States, or with any act of Congress upon that subject. No such act has been cited, and we do not see any suggestion of conflict. The act of 1897 does not purport to regulate or in any way interfere with interstate shipments of freight. It simply imposes a certain duty upon "all common carriers doing business in this State," which in no way relates to the transportation of the freight, but relates to a duty required of the common carrier after the transportation is completed. We do not think that appellant's third exception can be sustained.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
Remittitur in this case held up on application for writ of error to Supreme Court of United States.