dissenting:
I can not agree that the apportionment of the space to be occupied by public hacks and carriages engaged in the transportation of persons to and from the railway station is reasonable upon the face of the regulation attempted to be enforced in this case.
Certainly it would be more satisfactory if we had before us evidence disclosing all the conditions prevailing at the *289time, including the number of public hacks and carriages then in ordinary use, belonging to the railway company and to other owners respectively, but it is not at all necessary.
This regulation, both in its nature and operation, is essentially different from that involved in Railway Co. v. Dist. of Col., 10 App. D. C. 111, 128, wherein it was said: “Had the appellants undertaken to obey the regulation, in good faith, and to give its operation a fair test before engaging in litigation to prevent its enforcement, we might have had abundant evidence before us by which the question of its reasonableness, under all the surrounding circumstances, could readily be determined.”
The apportionment of the space is made by the following sections of the amended or substituted regulation:
“Sec. 12. That so much as may be necessary of the west half of Sixth street from the south building line of B street northwest, to the line. of the south wall of the Baltimore and Potomac Railroad Company’s station building, be arid the same is hereby designated and set apart as a stand for omnibuses of licensed hotels; and so much of the west half of said street from the line of said south wall to the line of the south end of the train shed as may not be required for the convenient transaction of public business pertaining to or connected with said railroad station, including -the receiving, handling, and delivery of the mails, baggage, express and freight, is hereby designated as a stand for hacks and vehicles plying for hire; the north one-half of the space so allotted to hacks and vehicles plying for hire shall be for the sole use of the cabs, carriages, and other vehicles of the Baltimore and Potomac Railroad Company engaged in carrying passengers to and from its station.”
“Sec. 13. That so much of the south half of B street north from the line of the west wall of the Baltimore and Potomac Railroad Company’s station building, westerly to a point distant one hundred and sixty feet therefrom, as may be *290necessary to accommodate a double line of vehicles, placed parallel with the curb, be and the same is hereby designated and located as a stand for hacks and vehicles plying for hire; provided, however, that the easternmost one hundred feet in length of said space by its entire width is hereby set apart for the sole use of the cabs, carriages and other vehicles of the said railroad company engaged in carrying passengers to and from its station.”
Comparing this with that declared unreasonable on its face in Curry v. Dist. of Col., it is quite clear to my mind that it accomplishes practically, though indirectly, all that was expressly attempted by the other. The same unjust preference, modified only in degree, is given to the carriages of the railway company. Their rivals are, to an apparent and substantial extent, deprived of a fair and equal opportunity in competition for business that is open alike to all persons wishing to engage therein.
The foregoing regulation will now be analyzed and considered without regard even to those facts relating to the size of the station and the location of its entrances and exits that were conceded on the argument, or assumed as matters of common knowledge of all residents of the city of Washington.
It appears that the train shed extends south along Sixth street and that trains enter from the south. The “station building” abuts on both Sixth and B streets.
On the Sixth street side all of the space from the corner of B street to the south line of the station building is set apart for hotel omnibuses. Next to that comes an uncertain and elastic space assigned to mail, express and baggage wagons. The remaining space along the lower or south end of the train shed is divided equally in amount between the hacks and vehicles of the railway company and those of others; but the north half, that nearest the passenger station, is awarded to those of the railway company exclusively.
The general public hacks and carriages are excluded from *291the space adjacent to the passenger station and pushed down to the south end of the train shed to make room first for the mail, express and baggage wagons, and then for the hacks of the railway company. Evidence could scarcely make plainer the fact, that, on the Sixth street side, the general public hacks have been put at material disadvantage in the competition for passenger carriage.
Instead of compensating for this disadvantage on the B street front of the station building, which presents apparently the best location for hacks and carriages, it is aggravated by the disposition there made. One hundred and sixty linear feet have been assigned along that front (beginning at the western wall of the station building, thereby leaving its north front on B street unoccupied), of which the first one hundred feet are given to the exclusive use of the hacks and carriages of the railway company. Here, again, it requires no explanatory evidence to demonstrate the superior advantages of the location given to the railway company. The general public hacks and carriages are given a little more than one-third of the whole space, and that the most distant and inconvenient part. One single hack owner is given nearly two-thirds of the space, and that the nearest and most desirable.
There is nothing in the language of the act of Congress authorizing the Commissioners to establish stands at railway stations for hacks and carriages owned and operated by railway companies that indicates an intention to give the latter either a monopoly or an unfair and unjust preference.
All that reasonably can be inferred from that act is, that Congress intended to confer upon the railway companies a power that they could hardly have exercised otherwise, and to admit them to its exercise, at their own stations, upon terms of equality with all others similarly engaged.
I am not prepared to say, however, that the division of designated stands at railway stations into separate spaces *292for the exclusive occupation of vehicles of the same kind and character of use, according to a classification determined alone by ownership, would be valid even if expressly authorized by Congress.
As said in Curry v. Dist. of Col., the power of Congress to legislate for this District whilst exclusive is not unlimited or arbitrary.
Undoubtedly, the power to make classifications of persons and callings for the purposes of municipal regulatidn generally exists in the legislative department; but that classification must be founded on some reasonable distinction. It can not be arbitrary. “Arbitrary selection can never be justified by calling it classification.” G. C. & S. F. Rwy. Co. v. Ellis, 165 U. S. 150, 159. The equal protection of the laws, to which all persons are entitled, forbids it. As was said by Mr. Justice Brewer, in the above case: “No language is more worthy of frequent and thoughtful consideration than those words of Mr. Justice Matthews, speaking for this court in Yick Wo v. Hopkins, 118 U. S. 356, 369: 1 When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.’ ”
Now, the assignment of an exclusive and even favored location at railway stations for omnibuses — not alone those belonging to hotels, but to all licensed owners — might properly be made because of their peculiar character and the special advantages they offer to unattended women and children who may need special protection.
Undoubtedly, also, there could be reserved a convenient space at or near the places for the receipt and delivery of mails, baggage and express freight, and for the necessary wagons engaged in handling the same.
And so, likewise, a special and even favored reservation *293might be made for the hacks and carriages of railway companies, at their own stations, if Congress, instead of merely permitting should require them to provide the same, at all times, for the further carriage of their passengers to places throughout the city. Failure to perform this duty would subject to liability, and hence its imposition might with reason be attended with a preference over others who, though engaged in the same business, are under no obligation to prosecute it save at their own wills.
A railway company has no special easement of the kind in a public street because the station abuts thereon, and mere permission to engage in this additional carriage of passengers can not justify its preference therein over others similarly engaged, whether special incorporations for the purpose, or individuals with license. Hence there can exist no reasonable ground for its classification apart from them as a foundation for the grant of special privileges.
I believe that the judgment of the police court was right and that it ought to be affirmed.
For these reasons I am constrained to dissent from the opinion and judgment of the court.