of a coupler to work at any time, sustains a charge of negligence in this respect, no matter how slight the pull on the coupling lever. And, further, "The mere fact that the pin would not lift when plaintiff [Brown] endeavored * to lift it makes a case of negligence under the first count." Contributory negligence is asserted because Brown knew, as it is contended, that he would have to pass over an unblocked guard rail; that, besides, he controlled the situation, it is contended, through signals to the engineer, and that he had two safe methods in which to make the cut of the cars but voluntarily and for his own purpose chose the most dangerous method.

But all these facts and how far they should have affected his conduct were submitted to the jury. The evidence detailed the situation to them and whether the judgment of Brown was prudently formed and exercised.

The trial court and the Circuit Court of Appeals, considering the evidence, confirmed the finding of the jury expressed by its verdict. It would be going far to say that these concurring judgments are not such as could be reasonably formed but such as must be pronounced to be without foundation as a matter of law.

The railway company starts its contentions with a concession of its own culpability in sending Brown to his duty to encounter defective appliances and then seeks to relieve itself from liability by a charge against him of a careless judgment in its execution. But some judgment was necessary, and whether he should have selected one of the ways which counsel point out admits of debate. It is one thing to judge of a situation in cold abstraction; another thing to form a judgment on the spot. The Germanic, 196 U. S. 589, 595, 596. The movement of trains requires prompt action, and we cannot hold that as a matter of law Brown, in leaning forward to remove a pin which would have yielded to his effort, was guilty of negligence because he did not anticipate that his foot VOL. CCXXIX-21

might slip and be caught in an open frog rail of which he had or could be charged with knowledge. The case is within the ruling in Texas & Pac. Ry. Co. v. Harvey, 228 . U. S. 319.

Judgment affirmed.

CITIZENS' TELEPHONE COMPANY OF GRAND RAPIDS v. FULLER, AUDITOR-GENERAL OF THE STATE OF MICHIGAN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.

No. 284. Argued May 2, 1913.-Decided June 10, 1913.

Power of exemption from taxation seems to imply the power of discrimination; and in taxation, as in other matters of legislation, classification is within the legislative power-and it may be even to a greater extent.

The numerous decisions of this court reviewed in this opinion illustrate the power of the legislature of the State over the subjects of taxation and the range of discrimination that may be exercised in classification.

The legislature, having the power of classification, has also the power to select the differences on which to base the classification. The State is not bound to rigid equality by the equal protection provision of the Fourteenth Amendment: classification simply must not be exercised in clear and hostile discrimination between particular persons and classes.

There is a clear and reasonable distinction on which to base a classification for taxation between telegraph and telephone corporations conducting for profit large businesses and having offices and exchanges in cities and villages, and those conducting a very small business for mutual convenience of the incorporators; and so held that the Michigan statute taxing such smaller corporations does not deny the larger corporations the equal protection of the laws because it

229 U. S.

Argument for Appellant.

exempts corporations having gross receipts of less than five hundred dollars.

Where there has been a constant legislative and executive construction of a provision of the constitution of the State in regard to the title of a statute clearly expressing the object thereof, this court will not, in view of the consequences of striking down legislation, declare a statute invalid on account of defective title where, as in this case, there has been substantial compliance with the requirements of the constitution of the State in that regard.

THE facts, which involve the constitutionality under the Fourteenth Amendment of a statute of Michigan taxing telephone companies and excepting therefrom certain classes thereof, are stated in the opinion.

Mr. Thomas P. Bradfield and Mr. Jacob Kleinhans for appellant submitted:

An exemption of companies whose gross receipts do not exceed $500 per annum invalidates the act.

Judicial construction cannot enlarge or restrict the obvious meaning of the act. Atty. Gen'l. v. Assessors, 143 Michigan, 73; Bate Refrigerator Co. v. Sulzberger, 157 U. S. 37; Denn v. Reed, 10 Pet. 527; Gibbons v. Ogden, 9 Wheat. 1; Leoni v. Taylor, 20 Michigan, 148, 154; People v. Plumstead, 2 Michigan, 465; Ry. Co. v. Phelps, 137 U. S. 528; Swartz v. Siegel, 117 Fed. Rep. 18; Whipple v. Saginaw Judge, 26 Michigan, 342; Wilt v. Cutler, 38 Michigan, 189.

A law must operate equally and uniformly and the classification must be based upon some reasonable ground. Am. Sugar Co. v. Louisiana, 179 U. S. 89, 92; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Stockyards Co., 183 U. S. 79, 112; Field v. Asphalt Co., 194 U. S. 618, 621; Kentucky R. R. Tax Cases, 115 U. S. 321, 337; McLean v. Arkansas, 211 U. S. 539; Railway Co. v. Ellis, 165 U. S. 150, 160; St. Louis Cons. Coal Co. v. Illinois, 185 U. S. 203; S. W. Oil Co. v. Texas, 217 U. S. 114; State v. Haun, 61 Kansas, 146.

While the legislature has the right to make exemptions, as held in Supervisors v. Auditor Gen'l, 65 Michigan, 408; Loan Co. v. Detroit, 136 Michigan, 451; People v. Auditor Gen'l, 7 Michigan, 84, the power is not absolute and without limitation. 1 Cooley Taxation (3d ed.), 382; Cotting v. Stockyards Co., 183 U. S. 79; Gulf &c. Ry. v. Ellis, 165 U. S. 150; Railroad Co. v. Pennsylvania, 134 U. S. 237; Yick Wo v. Hopkins, 118 U. S. 369.

The exemption does not operate to segregate any definite class of telephone companies to the exclusion of all others.

The value of non-assessed properties is substantial.

The object of the act is not expressed in the title and is in conflict with the Michigan constitution. Atty. Gen'l v. Bolger, 128 Michigan, 355; Bresler v. Delray Investment Co., 156 Michigan, 3; Callaghan v. Chipman, 59 Michigan, 614; Cooley's Const. Lim. 143; Depot Co. v. Com'nr of Railroads, 118 Michigan, 340; Detroit v. Wayne Circuit Judge, 112 Michigan, 319; Fish v. Stockdale, 111 Michigan, 646; In re Hauck, 70 Michigan, 396; Pratt Food Co. v. Bird, 148 Michigan, 634; Wilcox v. Paddock, 65 Michigan, 24.

Mr. Roger I. Wykes, with whom Mr. Grant Fellows was on the brief, for appellee.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Appellant is a telephone company, located in the city of Grand Rapids, in the State of Michigan, where it has 10,000 telephones in use, and by its own and other lines is engaged in the telephone business all over the southern peninsula. It brought this suit to restrain the collection of a tax levied on its property under a certain act of the State of Michigan, on the ground (1) that the act violates

the Fourteenth Amendment of the Constitution of the United States and (2) violates the constitution of the State because the purpose of the act is not expressed in its title.

A demurrer was filed to the bill, which was overruled. An answer was then filed and, after hearing, a decree was entered dismissing the bill. This appeal was then taken directly to this court, the case presenting questions under the Constitution of the United States.

Prior to 1909 telephone companies were taxed under Act No. 179 of the Public Acts of Michigan for the year 1899 (June 23, 1899, Pub. Acts 1899, p. 270), at the rate of 3% on their gross receipts for the year in which the tax was laid. This act also embraced express and telegraph companies. The companies were required to make a report of their gross receipts for the year ending December 1st next preceding such report. The taxes paid were to be in lieu of all other taxes.

Act No. 282 of the Public Acts of 1905 (June 16, 1905, Pub. Acts 1905, p. 439) provided for the assessment of the property of railroads and certain other companies and for the levying of taxes thereon by a State Board of Assessors. The act did not include either telephone or telegraph companies.

In 1909 the legislature passed Act No. 49 (April 28, 1909, Pub. Acts 1909, p. 77), which amended the title and certain sections of the Act No. 282 and provided for the assessment by the State Board of Assessors of the property of telephone companies on an ad valorem basis instead of a tax on their gross earnings, as provided by the act of 1899. The act contained this proviso: "Provided, That the property of telegraph and telephone companies whose gross receipts within this State for the year ending June thirty do not exceed five hundred dollars shall be exempt from taxation."

The contention of appellant that the act offends the