Wing v. Kirkendall/Opinion of the Court
This is an action to recover $10 paid under duress and protest for a license to do hand laundry work. The plaintiff got judgment in the court of first instance, but this judgment was reversed by the supreme court of the state. 39 Mont. 64, 101 Pac. 250. The law under which the fee was exacted imposed the payment upon all persons engaged in laundry business other than the steam laundry business, with a proviso that it should not apply to women so engaged, where not more than two women were employed. Rev. Codes, § 2776. The only question is whether this is an unconstitutional discrimination, depriving the plaintiff of the equal protection of the laws. U.S.C.onst. 14th Amend.

The case was argued upon the discrimination between the instrumentalities employed in the same business and that between men and women. One like the former was held bad in Re Yot Sang, 75 Fed. 983, and while the latter was spoken of by the supreme court of the state as an exemption of one or two women, it is to be observed that in 1900 the census showed more women than men engaged in hand laundry work in that state. Nevertheless we agree with the supreme court of the state so far as these grounds are concerned. A state does not deny the equal protection of the laws merely by adjusting its revenue laws and taxing system in such a way as to favor certain industries or forms of industry. Like the United States, although with more restriction and in less degree, a state may carry out a policy, even a policy with which we might disagree. McLean v. Arkansas, 211 U.S. 539, 547, 53 L. ed. 315, 319, 29 Sup. Ct. Rep. 206; Armour Packing Co. v. Lacy, 200 U.S. 226, 235, 50 L. ed. 451, 456, 26 Sup. Ct. Rep. 232; Connolly v. Union Sewer Pipe Co. 184 U.S. 540, 562, 46 L. ed. 679, 690, 22 Sup. Ct. Rep. 431. It may make discriminations, if founded on distinctions that we cannot pronounce unreasonable and purely arbitrary, as was illustrated in American Sugar Ref. Co. v. Louisiana, 179 U.S. 89, 92, 95, 45 L. ed. 102, 103, 105, 21 Sup. Ct. Rep. 43; Williams v. Fears, 179 U.S. 270, 276, 45 L. ed. 186, 189, 21 Sup. Ct. Rep. 128; W. W. Cargill Co. v. Minnesota, 180 U.S. 452, 469, 45 L. ed. 619, 627, 21 Sup. Ct. Rep. 423. It may favor or discourage the liquor traffic or trusts. The criminal law is a whole body of policy on which states may and do differ. If the state sees fit to encourage steam laundries and discourage hand laundries, that is its own affair. And if, again, it finds a ground of distinction in sex, that is not without precedent. It has been recognized with regard to hours of work. Muller v. Oregon, 208 U.S. 412, 52 L. ed. 551, 28 Sup. Ct. Rep. 324, 13 A. & E. Ann. Cas. 957. It is recognized in the respective rights of husband and wife in land during life, in the inheritance after the death of the spouse. Often it is expressed in the time fixed for coming of age. If Montana deems it advisable to put a lighter burden upon women than upon men with regard to an employment that our people commonly regard as more appropriate for the former, the 14th Amendment does not interfere by creating a fictitious equality where there is a real difference. The particular points at which that difference shall be emphasized by legislation are largely in the power of the state.

Another difficulty suggested by the statute is that it is impossible not to ask whether it is not aimed at the Chinese, which would be a discrimination that the Constitution does not allow. Yick Wo v. Hopkins, 118 U.S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064. It is a matter of common observation that hand laundry work is a widespread occupation of Chinamen in this country, while, on the other hand, it is so rare to see men of our race engaged in it that many of us would be unable to say that they ever had observed a case. But this ground of objection was not urged, and rather was disclaimed when it was mentioned from the bench at the argument. It may or may not be that if the facts were called to our attention in a proper way the objection would prove to be real. But even if, when called to our attention, the facts should be taken notice of judicially, whether, because they are only the premise for a general proposition of law (Prentis v. Atlantic Coast Line R. Co. 211 U.S. 210, 227, 53 L. ed. 150, 159, 29 Sup. Ct. Rep. 67; South Ottawa v. Perkins, 94 U.S. 260, 24 L. ed. 154; Telfair v. Stead, 2 Cranch, 407, 418, 2 L. ed. 320, 324), or for any other reason, still there are many things that courts would notice if brought before them that beforehand they do not know. It rests with counsel to take the proper steps, and if they deliberately omit them, we do not feel called upon to institute inquiries on our own account. Laws frequentry are enforced which the court recognizes as possibly or probably invalid if attacked by a different interest or in a different way. Therefore, without prejudice to the question that we have suggested, when it shall be raised, we must conclude that so far as the present case is concerned, the judgment must be affirmed.

Judgment affirmed.

I dissent from the conclusions reached in the first branch of the opinion, because, in my judgment, the statute, which is not a police but a revenue measure, makes an arbitrary discrimination. It taxes some and exempts others engaged in identically the same business. It does not graduate the license, so that those doing a large volume of business pay more than those doing less. On the contrary, it exempts the large business and taxes the small. It exempts the business that is so large as to require the use of steam, and taxes that which is so small that it can be run by hand. Among these small operators there is a further discrimination, based on sex. It would be just as competent to tax the property of men and exempt that of women. The individual characteristics of the owner do not furnish a basis on which to make a classification for purposes of taxation. It is the property or the business which is to be taxed, regardless of the qualities of the owner. A discrimination founded on the personal attributes of those engaged in the same occupation, and not on the value or the amount of the business, is arbitrary. 'A classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed.' Connolly v. Union Sewer Pipe Co. 184 U.S. 560, 46 L. ed. 690, 22 Sup. Ct. Rep. 431. 

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