Silver v. Silver , 108 Conn. 371 ( 1928 )

Upon the constitutionality of the statute I am obliged to differ with my brethren. They say, "the basis of the classification is the automobile." This is a misconception of the statute. The classification is not as to the automobile, but as to the guest in the automobile, taking away from him a right of action for ordinary negligence which the guest in every other mode of conveyance still enjoys under the law. In my opinion the statute deprives the guest in the automobile of the equal protection of the laws. What then does the equal protection of the law mean? We have held, under our Bill of Rights, that "no legislative Act is law, that clearly and certainly is obnoxious to the principle of equality in rights thus solemnly made the condition of all exercise of legislative power." State v. Conlon, 65 Conn. 478,489, 33 A. 519; State v. Porter, 94 Conn. 639, 643,110 A. 59. The equal protection of the laws guaranteed by the Fourteenth Amendment does not reach beyond the meaning of the declaration found in our Bill of Rights, "that all men when they form a social compact, are equal in rights," as we have construed this language. "Class legislation, discriminating against some and favoring others, is prohibited" by this provision of the amendment, "but legislation which, in carrying out a public purpose, is limited in its application," "either in the objects to which it is directed, or by the territory within which it is to operate," "if within the sphere of its operation it affects alike all persons similarly situated, is not within" this provision "of the amendment." Barbier v. Connolly,113 U.S. 27, 32, 5 Sup. Ct. 357; Hayes v. Missouri,120 U.S. 68, 7 Sup. Ct. 350; Truax v. Corrigan, 257 U.S. 312,333, 42 Sup. Ct. 124. The constitutional guaranty "does not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation." Atchison, T. S.F. Ry. Co. v. Vosburg, 238 U.S. 56, 59, 35 Sup. Ct. 675; SouthernRy. Co. v. Greene, 216 U.S. 400, 417, 30 Sup. Ct. 287. He who assails the classification must assume the burden of showing that it does not rest upon any reasonable basis, and a court must assume the existence of any state of facts which can reasonably be conceived of as existing at the time of the enactment of the law.Bachtel v. Wilson, 204 U.S. 36, 41, 27 Sup. Ct. 243. The characteristics which will serve as a basis for a reasonable classification must show such a difference as to fairly justify the division into classes with separate legislation as to each. Legislation cannot arbitrarily divide a class into two parts and constitute a different rule of law governing each of the parts of the severed class. Fountain Park Co. v. Hensler (Ind.)155 N.E. 465, 467. "A proper classification must embrace all who naturally belong to the class, all who possess a common disability, attribute or qualification, and there must be some natural and substantial difference germane to the subject and purposes of the legislation between those within the class included and those whom it leaves untouched." Fountain Park Co. v.Hensler (Ind.) 155 N.E. 465, 467; Chicago, M. St. P. Ry. Co. v. Westby, 102 C.C.A. 65, 178 F. 619;People v. Beakes Dairy Co., 222 N.Y. 416,119 N.E. 115.

We cite a few of the applications of these principles. In Atchison, T. S.F. Ry. Co. v. Vosburg, 238 U.S. 56,35 Sup. Ct. 675, a State statute imposed reciprocal burdens on both carrier and shipper, but provided that in the case of delinquency on the part of the carrier the shipper might recover an attorney's fee, but did not provide that in the case of the delinquency of the shipper the carrier might recover an attorney's fee, was held to deny the carrier the equal protection of the law granted by the Fourteenth Amendment. In QuakerCity Cab Co. v. Pennsylvania, 48 Sup. Ct. Rep. 553, a State statute imposed a tax on the gross receipts of taxicab corporations engaged in domestic and foreign business where the receipts accrued from intrastate business, but did not impose a corresponding tax on individuals or partnerships engaged in a like business; it was held to be a violation of the equal protection clause of the Fourteenth Amendment. A Massachusetts statute imposed absolute liability upon telegraph companies for injuries caused by their poles, wires or apparatus, while not applying to others utilizing similar apparatus, was held unconstitutional in depriving telegraph companies of the equal protection of the laws. Vigeant v. Postal Telegraph Cable Co.,260 Mass. 335, 157 N.E. 651. In State v. Goodwill, 33 W. Va. 179,10 S.E. 285, a State statute which prohibited miners and manufacturers from paying in store orders was held a denial of the equal protection of the laws.

The guest statute separates gratuitous guests in automobiles from other gratuitous guests in every other possible situation and in every other mode of conveyance or transportation. It cannot be seriously claimed that any public purpose is served by this classification. It does not tend to increase the safety of traffic in any degree; on the contrary, the tendency would be the reverse, since the transporting owner or operator of the car would be relieved of liability to the guest for his own ordinary negligence in its operation.

It merely relieves the operator and owner from his own ordinary negligence. It does not affect all persons similarly situated. Guests in other modes of conveyance are liable to injury through the ordinary negligence of the transporting operator or owner of the conveyance. The mere fact that the danger of injuring the guest may be greater in the automobile than in the other mode of conveyance does not afford a basis for valid classification. That does no more than to limit the right of action of a part of one class for the benefit of someone who is not a member of either part of the class. There could not well be a clearer violation of the equal protection of the law constitutional provision.

There is another feature of this statute which requires consideration. Cooley, in Constitutional Limitations, Vol. 2 (8th Ed.) 809, says: "The legislature may suspend the operation of the general laws of the State; but when it does so the suspension must be general, and cannot be made for individual cases or for particular localities; . . . but everyone has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments."

The Maryland court held in Carozza v. FederalFinance Credit Co., 149 Md. 223, 248, 131 A. 332: "The only restriction upon the power of the legislature to suspend the operation of a general law of the State is that the power when exercised must result in a suspension which is uniform, both in the privileges conferred and the liability imposed, in its application to all persons and property similarly situated and in like condition, within either the political territory or the class affected, and which shall not be arbitrary classification, but one supported by some sound and defensible reason inherent in the subject-matter."

The Illinois court in Millett v. People, 117 Ill. 294,302, 7 N.E. 631, thus announced its adherence to this principle: "`The rights 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 corporate bodies would be governed by one law; the mass of the community and those who made the law, by another; whereas a like general law, affecting the whole community equally, could not have been passed.'" See also Atchison, T. S.F. Ry. Co. v. Vosburg, supra;Giffith v. Connecticut, 218 U.S. 563, 31 Sup. Ct. 132.

The only case which we find nearest to that before us is Birmingham-Tuscaloosa Ry. Utilities Co. v.Carpenter, 194 Ala. 141, 69 So. 626. The statute in that case provided that the contributory negligence of the operator or driver of a motor vehicle shall be imputed to every occupant of it except passengers paying fare in a motor vehicle regularly used for public hire. The trial court ignored this statute upon the theory that the same was unconstitutional. In the course of its opinion the court said: "The doctrine is well settled in this and most of the other States, as well as by the Federal courts, that the contributory negligence of one in charge, or control of, a train, car, or other vehicle, cannot be visited upon a person who is a passenger therein, whether for reward or not, unless the person so riding has charge or control of the vehicle, or over the person driving or operating the same." And thereafter the court held: "Section 34 not only discriminates against persons riding in motor vehicles in favor of those riding in all other vehicles under similar conditions, but it discriminates between those who ride in a motor vehicle for hire. In other words, if a person rides in a motor vehicle which is regularly used for hire, he is not responsible for the negligence of the driver or operator; yet if he rides in one for hire he is responsible, unless said vehicle is regularly operated for hire. The section denies an equal protection of the law to all persons similarly situated, and is an unwarranted discrimination. . . . Of course, this constitutional guaranty does not forbid the legislature from making a reasonable classification in the operation of our laws; but such a classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed, and classification cannot be arbitrarily made without any such substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification."

The general rule of our common law gave to every gratuitous guest in an automobile an action against him who invited him to ride, for injuries suffered by him through the ordinary negligence of the operator of the automobile. This right of action cannot be taken away from the guest in the automobile by a law applicable to the guest in the automobile but not to all other guests transported in other modes of conveyances upon the invitation of another. Privileges conferred by law cannot be taken away from the guest in the automobile while left to the guest in other forms of conveyance. Such a classification does not rest upon a fair or substantial basis; it does not affect alike all guests similarly situated. It is unreasonable in its differences and essentially arbitrary. It, therefore, denies to this plaintiff the equal protection of the law. For this reason, in my opinion, the statute was invalid, and the trial court was in error in directing a verdict.

In this opinion HAINES, J., concurred.