— The appellee, Morris, in this action recovered judgment before a justice of the peace, against the appellant, for damages for the negligent killing of a hog by a railroad train, under the control of appellant’s servants. Upon appeal to the Circuit Court, it was insisted, by plea of the railroad company, that the claim was barred, because it had not been presented in writing within sixty days after accrual, as required by section 1701 of the Code (1876). A demurrer to this plea was sustained, and judgment rendered for the plaintiff; and the court imposed an attorney’s tax-fee of twenty dollars against the appellant, as part of the costs. These rulings of the Circuit Court are assigned for error.
The case is conceded to depend upon the constitutionality of certain sections of the “Act to define and regulate the responsibility of railroads for damages to live stock or cattle of any kind,” approved February 3,1877 (Sess. Acts 1876-7, p. 54), and now embraced in sections 1710-1716 of the Code.
In Zeigler v. S. & N. Ala. R. R. Co. (58 Ala. 594), this court pronounced the first section of this act, now comprised in section 1710 of the Code, to be unconstitutional, on the ground that it sought to impose an absolute and unconditional liability upon railroad companies, without regard to any question of legal wrong, fault or negligence on their part, and thus operated to deprive them of a hearing in court by that “ due process of law ” guarantied to all persons under section 7 of the Bill of Eights. It is urged by appellant’s counsel, that the unconstitutionality of this section vitiates the whole act, and that the remaining parts of it are void also, and must fall with it.
Though the law has been differently declared in some of the States, a safer and sounder rule, as we think, has been adopted by this court — that the presumption of the constitutionality of a statute will be indulged, until the mind of the court is clearly convinced to the contrary. — Zeigler v. S. & N. Ala. R. R. Co., supra; Sadler v. Langham, 34 Ala 311. Where, however, a part of any law has been held unconstitutional, the rule is different, and the same presumption will not be indulged in favor of the remainder of the act, that was allowable in support of the original statute, when primarily assailed. —People v. Bell, 46 N. Y. 68; State v. Dornbaugh, 20 Ohio (N. S.), 173.
We find the principle stated in Cooley on Constitutional *198Limitations, as follows: “ Where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, opererating together for the same purpose, or otherwise so connected together in meaning, that it can not be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall.” — Cooley’s Const. Lim. 177-8 ; Com. v. Hitchings, 5 Gray, 485. The true test seems to be, “ that “ if, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” — Ib. 178.
Applying these tests to the statute under consideration, we do not think that the fact of the first section (Code, § 1701) being void vitiates the remainder of the act. They are not so closely connected as to be inseparable. We can omit the obnoxious feature of absolute and unconditional liability, disclosed in section 1710, and find ample and unambiguous scope for the operation of the remaining sections; and keeping in view the main object to be accomplished by the statute, the general purpose of the legislature will not be defeated, by giving operation to all the sections except the one declared void.
We hold, therefore, that section 1711, which allows six months within which claims of this kind may be sued on, is constitutional, and in full force : and being in conflict with section 1701, and more recent in the date of its enactment, it repeals the latter section. The action was not barred, then, in sixty days, but in six months from the date of the injury for which this suit is brought; and the demurrer was properly sustained.
It is further insisted, that the court below erred in allowing an attorney’s tax-fee to the appellant’s counsel, on the ground that the law authorizing it is unconstitutional and void. This action of the court was taken under the provisions of section 1715 of the Code, which constituted section 6 of the statute in question,- and reads as follows : “ § 1715. Any corporation, person or persons, owning or controlling any railroad in this State, or any complainant against such corporation, person or persons, taking an appeal from a decision rendered by a justice of the peace, in suit for damages brought under the provisions of section 1711, and failing to sustain such appeal, or to reduce or increase the ju dgrnent *199before the appellate court, shall be liable for a reasonable attorney’s fee incurred by reason of such appeal, to be assessed by the court, not to exceed twenty dollars; and the attorney’s fee shall be part of the cost, and collected as such.”
After a careful consideration of this question, during which it has been held under protracted advisement by the whole bench, a conclusion has been reached, which clearly persuades us that this particular section of the Code is violative of both the constitution of the State and that of the United States. The following sections of the Declaration of Rights (Const. 1875, Art. 1,) are pertinent to this subject:
Section 2 provides, that all persons resident in this State, who are citizens, are entitled to possess “ equal civil and political rights.”
Section 11: “ That no person shall be debarred from prosecuting or defending, before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.”
Section 11:“ That all courts shall be open ; and that every person, for any injury done him, in his lands, goods, person or reputation, shall have a remedy by due process of law ; and right and justice shall be administered, without sale, denial, or delay.”
Article XIY, section 12 of the constitution, also declares, that “ all corporations shall have the right to sue, and shall be subject to be sued, in all courts, in like cases as natural persons.”
It is further asserted that “ the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property; and when the government assumes other functions, it is usurpation and oppression.” — Art. I, § 37.
The clear legal effect of these provisions is to place all persons, natural and corporate, as near as practicable, upon a basis of equality in the enforcement and defense of their rights in courts of justice in this State, except so far as may be otherwise provided in the constitution. This right, though subject to legislative regulation, can not be impaired or destroyed under the guise or device of being regulated. Jus- ’ tice can not be sold, or denied, by the exaction of a pecuni-l ary consideration for its enjoyment from one, when it is ' given freely and open-handed toan other, without money and without price. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right, by the imposition of arbitrary, unjust, and odious discriminations, perpetrated under color of establishing peculiar rules for a particular occupation. Unequal, partial, and discriminatory legislation, which secures this right to some favored *200class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spirit of the foregoing constitutional provisions.
It was forcibly said by the Supreme Court of Tennessee, in Wally v. Kennedy (2 Yerger, 554): “ The right of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or land, under similar circumstances; and every 'partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporations would be governed by one law, and the mass of the community, and those who made the law, by another; whereas, the like general law, affecting the whole community equally, could not have been passed.”
In Holden v. James, 11 Mass. 396 (6 Amer. Dec. 174), the Supreme Court of Massachusetts said: “It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges.and advantages which are denied to all others under like circumstances; or that one should he subject to losses, damages, suits or actions, from which all others, under lilce circumstances, are exempted.”
The section of the Code under consideration (§ 1715) prescribes a regulation of a peculiar and discriminative character, in reference to certain appeals from justices of the peace. It is not general in its provisions, or applicable to all persons, but is confined to such as own or control railroads only; and it varies from the general law of the land, by requiring the unsuccessful appellant, in this particular class of cases, to pay an attorney’s tax-fee, not to exceed twenty dollars. A law which would require all farmers who raise cotton to pay such a fee, in cases where cotton was the subject-matter of litigation, and the owners of this staple were parties to the suit, would be so discriminating in its nature as to appear manifestly unconstitutional; and one which should confine the tax alone to physicians, or merchants, or ministers of the gospel, would be glaring in its obnoxious repugnancy to those cardinal principles of free government which are found incorporated, perhaps, in the Bill of Eights of every State constitution of the various commonwealths of the American government. We think this section of the Code is antagonistic to these provisions of the State constitution, and is void. Durkee v. City of Gainesville, 28 Wis. 464; Gordon v. Win*201chester Association, 12 Bush, 110; Greene v. Briggs, 1 Curtis, 327; Cooley’s Const. Lim. (3d ed.) § 393.
Tbe section in question is also violative of tbat clause in section 1, Art. IY, of tbe constitution of tbe United States, which declares that no State shall “deny to any person within its jurisdiction the equal protection of its laws.” This guaranty was said by Justice Bradley, in Missouri v. Lewis (101 U. S., 1 Otto, 22, 30), to include “ tbe equal right to resort to the appropriate courts for redress.” “ It means,” as was further said by tbe court, “ tbat no person, or class of persons, should be denied tbe same protection which is enjoyed by other persons, or other classes, in the same place, and under like circumstances.”
Tbe same court, in United States v. Cruikshank, 92 U. S. (2 Otto), 542, 555, per Waite, C. J., used the following language, in discussing the foregoing constitutional clause “ The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by tbe States, and it still remains there.” — Ward v. Flood, 48 California, 36.
Tbe Circuit Court erred in taxing an attorney’s fee against tbe appellant; and its judgment is, for this reason, reversed, and tbe cause is remanded.