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the privilege of doing business as a peddler, while the other class may carry on the same business in the same manner, sell the same kind and quality of goods in the same territory, without payment of such tax. Does this classification have the equality of indiscriminate operation, on all persons licensed thus to do business according to their relations? Upon the answer to this question being in the affirmative or in the negative depends the validity or the invalidity of the law in question under the equality clause of the 14th Amendment Upon what basis does the attempted classification rest? There is no basis upon which it can rest except that persons in the one class served as soldiers in the Civil War, and were honorably discharged, and those of the other class did not so serve, or were not honorably discharged. This classification is dependent solely on a condition of things long since past, and not on a present situation or con

not intended to compel the state to adopt an | while a license may be had by all in the iron rule of equal taxation." And in Bar former class without the payment of such bier v. Connolly, 113 U. S. 27, 28 L. ed. 923, tax. The classification, therefore, is one of 5 Sup. Ct. Rep. 357, the court, speaking taxation. From one class a tax on their through Mr. Justice Field, said this amend-goods authorized so to be sold is exacted for ment, "in declaring that no state 'shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal pro tection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights;. that all persons should be equally entitled to pursue their happiness and acquire and enjoy prop erty; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, nor on a substantial distinction havdition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses." And in Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594, it is said that the rule only prescribes that the "law have the attribute of equality of operation; and equality of operation does not mean indiscriminate operation on persons merely, as such, but on persons according to their relation." Such is the rule laid down by this court in State v. Hoyt, 71 Vt. 59, 42 Atl. 973. It was there held that the mere fact of classification is not enough to exempt the operation of the statute from the equality clause of the Constitution, but that it must also appear that the classification made is one based upon some reasonable ground, some difference which bears a just and proper relation to the attempted classification, and not a mere arbitrary selection.

By the law in question the legislature has made a classification by placing persons resident of the state, who served as soldiers in the Civil War, and were honorably discharged, in one class, and all other citizens together in another class. All persons engaged in the business of peddling, whether they belong to the one class or the other, must have a license in force, or be subject to a penalty; but a license tax is required to be paid by persons in the latter class,

ing reference to the subject-matter of the law enacted. The veterans were originally from no particular class, and when discharged from the army they returned to no particular class, they again became a part of the general mass of mankind, with the same constitutional rights, privileges, immunities, burdens, and responsibilities as other citizens similarly circumstanced in law in the same jurisdiction. Assuming that thus to have served as a soldier and to have received an honorable discharge may well merit reasonable considerations at the hands of the state in recognition of patriotism and valor in defense of a common country, yet such considerations cannot exceed those constitutional limits established for the welfare and protection of the whole; for equal protection of the laws requires "that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed." Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594. It cannot be said that service as a soldier in the Civil War and the receipt of an honorable discharge bear any relation to the business of a peddler as defined by the law under consideration. There is no difference between the present conditions and circumstances of such veterans and those of other citizens regarding the relations to the law or the attempted classification. In fact, ac

cording to their relations, they are of the | emolument of the office does not exceed $4 same class, and any attempted classification per day was in conflict with the Constitubetween them is but a mere arbitrary selection. And a somewhat similar law in Masstion, and based upon no reasonable grounds. achusetts, purporting absolutely to give vetIn State v. Hoyt, referring to the equality clause, it is said that it is enough if there is no discrimination in favor of one against another of the same class; but that, when such discrimination exists, it impairs that equal right which all can claim in the enforcement of the laws. And the cases of

State v. Harrington, 68 Vt. 623, 34 L. R. A. 100, 35 Atl. 515, and State v. Cadigan, 73 Vt. 245, 57 L. R. A. 666, 50 Atl. 1079, are much in point. In the former the respond ent was charged with selling and exposing for sale goods, wares, and merchandise as an "itinerant vendor," without a license therefor. It was contended upon demurrer to the information that the law upon which the prosecution was based discriminated between itinerant vendors and resident vendors, and between classes of itinerant vendors, and therefore it was in conflict with both the state and Federal Constitutions. It was held that the state might require a license fee from persons in one occupation, and not from those in another, provided no discrimination was made between those of the same class. In the latter case, the respondent was charged with acting as agent of a partnership organized under the laws of the state of New York in selling certain municipal bonds here without the partnership having procured a license from the inspector of finance, etc., as required by the laws of this state. It was held that to discriminate between residents of our own state by denying to one class the privilege of transacting business without complying with conditions and exactions not required of others, when the ground of classification is wholly fanciful and arbitrary, is a denial of the equal protection of the laws.

The constitutional right of a state legislature to discriminate in favor of persons who served in the army or navy of the United States in the Civil War has been before the court of last resort in several of the sister states. In New York the Constitution provides that appointments and promotions in the civil service "shall be made according to merit and fitness, to be ascertained so far as practicable by examinations which, so far as practicable, shall be competitive." [Art. 5, § 9.] In Re Keymer, 158 N. Y. 219, 35 L. R. A. 447, 42 N. E. 667, it was held that a provision of the civil service law in effect that as to honorably discharged soldiers and sailors of the Civil War competitive examination should not be deemed practicable or necessary in cases where the compensation or other

erans particular and exclusive privileges different from those of the community in obtaining public office, was held to be not within the constitutional power of the legislature. Brown v. Russell, 166 Mass. 14, 32 L. R. A. 253, 43 N. E. 1005. In Iowa the

tion;

Constitution provides that "all laws of a general nature shall have a uniform operathe general assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens." [Art. 1, § 6.] A statute requiring peddlers to procure a license and to pay a license tax contained the provision that the section requiring the payment of the tax should not be held to apply "to persons who have served in the Union army or navy." In State v. Garbroski, 111 Iowa, 496, 56 L. R. A. 570, 82 N. W. 959, it was contended that, because of this immunity from the tax to peddlers who so served in the army or navy, the law was void. In an extended opinion, reviewing many authorities, the court, saying that the attempted classification is based on no apparent necessity or difference in condition or circumstances that have any relation to the employment in which the veteran of the Civil War is authorized to engage without paying license, and that it savors more of philanthropy than of reasonable discrimination based upon real or apparent fitness for the work to be done, held the law unconstitutional.

We think it clear that the discrimination made in the law in question in favor of persons who served in the War of the Rebellion and were honorably discharged is without reasonable ground, and arbitrary, having no possible connection with the duties of the citizens as taxpayers, and their exemption from the payment of the tax therein required of others exercising the same calling is pure favoritism, and a denial of the equal 4732 of the Vermont Statutes is unconsti protection of the laws. It follows that § tutional, and without force, and that § 4733 of the Vermont Statutes, so far as it relates to the payment of license required by said chapter 198, is unconstitutional, and without force.

Pro forma judgment reversed, demurrer sustained, information adjudged insufficient and quashed, the respondent discharged and let go without day.

NEW YORK COURT OF APPEALS.

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(Parker, Ch. J., and Martin, J., dissent from proposition 3.)

A

(October 6, 1903.)

People v. Brooks, 131 N. Y. 321, 30 N. E. 189; Lamb v. Lamb, 146 N. Y. 317, 41 N. E. 26; Schultz v. Third Ave. R. Co. 89 N. Y. 242.

It is always proper to give a witness who has been impeached, either by cross-examination or by independent evidence, and opportunity to make any explanation he can in support of his own credibility.

29 Am. & Eng. Enc. Law, p. 825.

The question allowed as to Corey's religious belief, and the charge of the court upon that point, are error.

Messrs. John F. Bradner and William Vanamee, for respondent:

Hostility discrediting the testimony of a witness cannot be shown by the absence of the relation of good friends.

Gale v. New York C. & H. R. R. Co. 76 N. Y. 594.

The questions asked Corey as to his regard for the sanctity of an oath, and the charge of the court upon this subject, were proper.

Stanbro v. Hopkins, 28 Barb. 267; 1 Rice Ev. pp. 548, 549; Free v. Buckingham, 59 N. H. 225; People v. Braun, 158 N. Y. 569, 53 N. E. 529; Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311; LaBeau v. People, 34 N. Y. 230.

Martin, J., delivered the opinion of the court:

This action was to recover upon a joint and several promissory note made by the defendants Stratton, Brown, and the firm of Corey & Co., of which Corey is surviving PPEAL by defendants Stratton and partner. It was payable to the plaintiff Brown from a judgment of the Appel-or his order. The defendants Stratton and late Division of the Supreme Court, Second Department, affirming a judgment of the Orange County Court in plaintiff's favor in an action brought to recover the amount alleged to be due on a promissory note. Reversed.

The facts are stated in the opinion. Messrs. Abram F. Servin and Thomas Watts, for appellants:

The court erred in refusing the testimony of Corey offered to show bias in witnesses called to impeach him.

Defendants had three ways of counteracting the testimony of these impeaching witnesses: (1) By showing that the grounds on which they formed their opinion were erroneous; (2) by offering evidence to strengthen character,-which could not be done in this case, the impeaching being unforeseen; and (3) by showing bias.

NOTE. As to religious belief as qualifica

Brown answered the complaint, and among other defenses alleged that the note in suit had been paid by the defendant Horace W. Corey or the firm of Corey & Co. The defendants' evidence was to the effect that it had been paid by giving another note, made by Corey & Co. alone, which was discounted at a bank, renewed from time to time, and ultimately taken up and paid by the plaintiff. That it was received in payment by the plaintiff was denied by him, and that issue was submitted to the jury, which found a verdict in his favor. The judgment entered upon the verdict was unanimously affirmed by the appellate division, so that the only questions which are presented upon this appeal arise either upon rulings rejecting or admitting evidence, or upon exceptions to the charge of the trial court.

The first error alleged by the appellants is the refusal of the court to permit the

tion of witness, see State v. Washington, 42 defendant Corey to testify as to the rela

L. R. A. 553, and note.

tions between himself and three witnesses-

Stivers, Boyd, and Wilbur—who were called | The extent, however, to which an examinaon the trial to impeach his character for truth and veracity. As to the witness Stivers, he was asked:

While you were publishing a paper and he was publishing one, were you good

friends?

tion may go for the purpose of proving the hostility of a witness must be, to some extent, at least, within the discretion of the trial judge. It should be direct and positive, and not very remote and uncertain, for the reason that the trial of the main issue in the case cannot be properly suspend

Objected to as improper. Objection sus-ed to make out a case of hostile feeling by tained. Defendants except.

As to the witness Boyd, he was asked: Was Mr. Boyd opposing you and you opposing Mr. Boyd for a number of years in your papers?

Objected to as improper. Objection sustained. Defendants except.

mere circumstantial evidence from which such hostility or malice may or may not be inferred. Schultz v. Third Ave. R. Co. 89 N. Y. 242. The decision in the Brooks Case was followed in Garnsey v. Rhodes, People v. Webster, and Lamb v. Lamb. In the Garnsey Case a witness was asked whether

Q. Each one attacking the other through there had been any disagreement between the paper?

Same objection, ruling, and exception.
As to the witness Wilbur, he was asked:
What have been the relations between you
and Mr. Wilbur?

Objected to. Objection sustained. fendants except.

him and the plaintiff's architects, between whom and the plaintiff a conspiracy was alleged. The evidence was objected to and excluded. This was held error, and the court there said: "The object of the deDefense was to charge the plaintiff with the consequences of a conspiracy between him

9. Was Mr. Arthur (Wilbur) at one time and the architects, and it was therefore superintendent of schools?

A. He was.

Q. Did your paper attack him?
Objected to. Objection sustained.

ception.

quite as material and important for the plaintiff to show that the witness by whom it was sought to establish the unlawful com

Ex- bination was hostile to one of the parties to it as it would have been to have shown hos

court.

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Q. I will ask you whether or not, by rea-tility on his part towards the plaintiff himson of the position of the Forum against self. The admission or rejection of the eviMr. Wilbur, whether or not he was defeated dence was not discretionary with the trial as superintendent of the schools? It was not there [in People Objected to. Objection sustained. Ex- v. Brooks] held, as the counsel for the deception. fendant seems to suggest, that it was in the discretion of the court whether such questions should be allowed. All that was said upon the point was that the extent to which such an examination may go must be in some measure within the discretion of the trial judge. This must be so, or else it might become interminable. But here the whole inquiry was ruled out. Even general questions were disallowed, and as it must be assumed, for the purposes of this appeal, that, if answered, the responses would have shown bias, the plaintiff may have been prejudiced by the exclusion of the evidence." If Corey is to be regarded as a party to this action, then clearly, within the doctrine of that case, the evidence offered by the defendants as to the relations between Corey and the witnesses called was admissible. It will be remembered that the witness was asked as to Stivers whether he and Stivers were good friends while publishing opposi tion papers; as to Boyd the inquiry was if they were opposing each other for a number of years in their papers; and as to Wilbur he was asked what had been the relations between them. All these questions were objected to as improper, and the objection was sustained. Corey was named as defendant

That it was competent to prove the hostility of any or all of these witnesses towards the defendants, or either of them, by their cross-examination, or by other testimony; that it was not necessary that the witness should be first examined as to his hostility before calling other witnesses; and that the examination of other witnesses is not limited to contradicting him in case he denies hostility,-is well established by the decisions in this state. Starks v. People, 5 Denio, 106; People v. Brooks, 131 N. Y. 321, 30 N. E. 189; Garnsey v. Rhodes, 138 N. Y. 461, 467, 34 N. E. 199; People v. Webster, 139 N. Y. 73, 85, 34 N. E. 730; Lamb v. Lamb, 146 N. Y. 317, 41 N. E. 26. In People v. Brooks it was held that the hostility of a witness towards a party against whom he is called may be proved by any competent evidence, either by crossexamination of the witness or by the testimony of other witnesses; and that it is not necessary that the witness should first be examined as to his hostility before calling other witnesses, and the examination of other witnesses is not limited to contradicting him in case he denies any hostility.

in the summons and complaint, but did not | objection was overruled, and the defendappear either in person or by attorney. He ants excepted. The answer was: "I do not was, however, called as a witness by the de- know anything about it, I am sure. fendants, and gave material testimony upon I will reply that I am an agnostic. I have the trial. The three witnesses mentioned no belief on that subject at all. I do not were called to impeach his character for know anything about it." The court, in truth and veracity, and testified that it was charging the jury, said: "It is for you to bad. Corey was then recalled, and the say how far you are to attach credibility proof as to the hostility of those witnesses to his [Corey's] statements, how far his to him was offered and excluded. Thus the testimony is impeached as to what he has question presented is whether the defend- said here in regard to his religious beliefs.” ants were entitled to prove the relations be- This charge was excepted to by the defendtween those witnesses and Corey as affecting ants. That question is not an open one in their evidence as to his general character. this court. In People v. Most, 128 N. Y. We think they were. The question of his 108, 26 Am. St. Rep. 458, 27 N. E. 970, it character was thus placed in direct issue. was directly involved and distinctly decidTo that issue the evidence rejected was ed. One of the points made by the appelplainly directed, and the proof offered was admissible within the principle of the cases already cited, especially the cases of Starks v. People, 5 Denio, 106, where it was held that a party has a right to impeach a witness for his adversary, though the testimony of such witness related solely to the general character of another witness, and Garnsey v. Rhodes, where the hostility which was sought to be proved was between the architects employed by the plaintiff and the principal witness for the defense. In this case the direct purpose of the evidence was to show that the witnesses who had testified to the bad character of Corey were hostile to him, the party against whom they had testified, and hence their evidence was not entitled to the credit it otherwise would have been, and was, we think, plainly admissible.

The next exception urged by the appellants is to the rulings of the court rejecting the evidence of the defendant Corey as to whether he was financially responsible at the time the note which was put in the bank was delivered to the plaintiff. The issue was whether the note in suit had been paid by the delivery and acceptance of a note made by Corey & Co. That question in the case depended upon the direct evidence of the parties, and, even if the defendant Corey was financially responsible, it is hardly evidence that the plaintiff would have surrendered a note upon which there were two other makers who were responsible, even if the defendant Corey was. We think this exception is insufficient to justify an interference with the judgment.

The only remaining exceptions that need be considered are whether the court properly overruled the defendants' objection to the plaintiff's question whether the witness Corey believed in the existence of a Supreme Being who will punish false swearing, and to the charge of the court upon that evidence. The question was objected to as im proper, immaterial, and irrelevant. The

lant's counsel in this court was that "the court erred in permitting the district attorney to interrogate each witness for the defense as to his religious belief, and in not stopping the district attorney in his summing up to the jury when he said that the jury should not believe the defendant and his witnesses, because some of them testified that they did not believe in the Supreme Being." At the threshold of his opinion in that case Judge Andrews stated that "but three of the questions presented on the brief of the appellant's counsel can be considered on this appeal. One of these questions is raised by the exception to the denial by the trial judge of the motion of the counsel for the defendant, made at the conclusion of the evidence on the part of the People, for an instruction to the jury to acquit the defendant on the ground that the evidence was legally insufficient to justify a conviction. An exception was taken to a question put to a witness for the defendant on cross-examination by the prosecuting offcer, and which was allowed by the court, as to his belief in a Supreme Being. A third exception was taken to evidence offered by the prosecution, and admitted, that the persons present at the meeting at Kramer's Hall on the evening of November 12, 1887, were anarchists." After discussing the first and third questions, the court held that the evidence was sufficient to bring the case within the definition of the statute, and that the proof that the persons present at the meeting at Kramer's Hall were anarchists was properly admitted. As to the second exception, which was to the question as to the witness's belief in a Supreme Being, the court said: "The exception to the question put to the witness on cross-examination as to his belief in a Supreme Being is frivolous." Thus it is perfectly manifest that the question whether it was competent to interrogate a witness as to his belief in a Supreme Being was directly involved and squarely decided by this

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